Under California leave laws, employees have the right to take an unpaid leave of absence for certain events, including:
- caring for a family member,
- bonding with a new child, or
- to obtain a domestic violence restraining order.
Federal and state leave laws generally provide job protection for up to 12 weeks of leave. When the leave ends, the employee is able to return to work in the same or equivalent position.
Some types of leave also provide for wage replacement. For example, California’s Paid Family Leave (PFL) program, provides unemployment disability compensation benefits for individuals who take time off to care for a family member or bond with a new child.
Below, our California employment and labor lawyers discuss the following frequently asked questions about leave laws:
- 1. What are the federal and state laws that cover work leave in California?
- 2. What types of leave are provided in California?
- 2.1. Sick Leave
- 2.2. New Parent Leave
- 2.3. Pregnancy Disability Leave
- 2.4. Family and Medical Leave
- 2.5. Bereavement Leave
- 2.6. Voting Leave
- 2.7. Jury Duty or Subpoena Leave
- 2.8. Domestic Violence Victim Leave
- 2.9. Crime Victims Leave
- 2.10. Leave for School Activities
- 2.11. Literacy Education Leave
- 2.12. Drug/Alcohol Rehab Leave
- 2.13. Kin Care
- 2.14. Organ Donor/Bone Marrow Donor Leave
- 2.15. Military Injury Leave
- 2.16. Military Spouse Leave
- 3. Will I get paid during leave from my job?
- 4. What happens if my employer says I can’t take time off?
- 5. Can I sue my employer for violating California leave laws?
- 6. Damages in a Wrongful Termination Lawsuit During Leave
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
Leave of absence in California is governed by both federal and state laws. There are a number of laws that apply to different types of leave and wage replacement laws in California.
Under federal law, the Family and Medical Leave Act (FMLA), eligible employees can have up to 12 weeks of unpaid leave
- for illness,
- to care for a close relative, or
- for a child’s birth or adoption.
After leave, an employee generally can return to the same or a substantially equivalent job.1
Under California law, the California Family Rights Act (CFRA) provides similar protections as the FMLA.23
Other California laws that apply to leave include:
- Pregnancy Disability Leave (PDL)
- Healthy Workplaces, Healthy Families Act
- Paid Family Leave (PFL)
- California Labor Code 230.1 (Victims of Domestic Violence)
- California Labor Code 233 (Kin Care)
- California Labor Code 1025-1028 (Drug and Alcohol Rehabilitation)
- Michelle Maykin Memorial Donation Protection Act (Organ and Bone Marrow Donors)
- California State Disability Insurance
- California Workers’ Compensation
- California Election Code
- California Fair Employment and Housing Act (FEHA)
Leave laws do not apply equally to every worker in California. Under state and federal law, only eligible employees are protected by leave laws. Certain positions, such as highly-compensated workers (often executives), may also be treated differently for the purpose of leave.
With some exceptions, the FMLA applies to:
- Employers with 50 or more employees (in 20 weeks of the last year),
- Employees who have worked for over 12 months,
- Employees who worked at least 1250 hours in the last year,
- Employees who work at a location with at least 50 employees within a 75-mile radius.4
However, the CFRA applies to employers with 5 or more employees. To be eligible for the CFRA, the employee must have worked for the employer
- for 12 months and
- at least 1250 hours in the last year.
So more people are eligible for leave under CFRA than under FMLA.
Some cities and counties in California also have local paid sick leave laws. Employees should look at local leave laws to understand what types of leave are covered and the limits to taking leave under local laws.5
The following types of leave are provided for eligible employees in California:
- Family and Medical Leave
- New Parent Leave
- Pregnancy Disability Leave
- Sick Leave
- Bereavement Leave
- Voting Leave
- Jury Duty or Subpoena Leave
- Domestic Violence Victim Leave
- Crime Victims Leave
- Leave for School Activities
- Literacy Education Leave
- Drug/Alcohol Rehab Leave
- Kin Care
- Organ Donor/Bone Marrow Donor Leave
- Military Injury Leave
- Military Spouse Leave
Under CFRA, eligible employees in California can take up to 12 weeks of leave for a serious health condition of the employee’s
- children (including adult children)
- domestic partner, or
- a designated person (any individual related by blood or whose association with the employee is the equivalent of a family relationship)
The 12 weeks of leave is available in a 12-month period. After 12 months, the employee will have 12 more weeks of leave available.
A serious health condition includes an illness, injury, impairment or mental condition that involves:
- Inpatient care in a hospital, hospice, or residential medical care facility; or
- Continuing treatment by a health care provider.6
Eligible employees can have up to 12 weeks of leave in a 12-month period for bonding with or caring for a new child. This includes
- newborn children of the parents or
- placement of a child in the home through adoption or foster care.7
Under the CFRA, employers must allow eligible employees to work a reduced schedule or intermittent schedule for the purpose of baby bonding. And under CFRA, employers who employ both parents must permit each parent to take 12 weeks off.
Pregnancy disability leave in California allows employees to take up to 122 days (about 4 months) of leave for
- pregnancy disability, or
- childbirth-related medical conditions.
PDL applies to private employers with 5 or more employees and all public employers. Employees do not have to meet a minimum amount of time or hours with the employer to be eligible.
Under state law, employees are protected from discrimination or retaliation on the basis of pregnancy or pregnancy-related disabilities.
See our article on California maternity leave laws. It comprises new parent leave, pregnant disability, and reasonable accommodation leave.
Like caring for a sick child, spouse, or parent, eligible employees can take up to 12 weeks of protected leave for the employee’s own serious health conditions.
An eligible “serious health condition” has to be one that makes the employee unable to perform the functions of the position.
An employer is allowed to require some certification or evidence of the health condition. This may include a certification issued by a health care provider of the employee.
Under California law, employers have to provide employees with enough time to vote if the voter does not have enough time outside of working hours to vote. This generally provides for up to 2 hours of paid time off to vote, either at the beginning or end of the employee’s shift (unless otherwise agreed to).
If an employee intends to take time off to vote, the employee has to give the employer notice at least 3 days prior to the voting date.8
Employees are generally able to take leave to serve jury duty or act as subpoenaed witnesses. An employer cannot discharge or discriminate against an employee for taking time off to serve jury duty or subpoena leave, as long as the employee gives the employer reasonable notice.9
California law does not require employers to pay employees for jury duty. However, many employers have some jury duty policy to compensate employees for time away to serve on a jury.
Employers cannot discriminate or retaliate against an employee for taking leave from work to obtain domestic violence protection. Eligible employees include a victim of
Domestic violence employees can take protected time off from work to obtain a temporary restraining order, restraining order, or other relief, to help ensure the
- safety, or
- welfare of the victim or the victim’s child.10
Victims of domestic violence, sexual assault, or stalking are also protected for taking time off to seek
- medical attention,
- safety planning,
- psychological counseling, or
- to get domestic violence services. 11
Under California law, employees are protected for crime victim leave. This includes victims’ leave for judicial proceedings related to the crime. An employer cannot fire, discriminate, or retaliate against an employee who is a victim of certain crimes from taking time off from work related to those crimes.
Leave for crime victims may include time off to appear in court to be heard at any
- sentencing, or
- post-conviction release decision.12
Employers with 25 or more employees at the same location cannot discharge or discriminate against an employee who is a parent of a child for taking time off (leave) to participate in their child’s school activities. Eligible employees can take up to 40 hours per year to
- address child care emergencies or
- participate in school activities.13
California provides for allowing employees to take unpaid leave to participate in an adult literacy program. This applies to employers with 25 or more employees. Employers must make reasonable accommodations to assist any employee with illiteracy problems who request participation in an adult literacy program.14
Employers with 25 or more employees shall provide reasonable accommodations (including leave) for employees who want to participate in alcohol or drug rehabilitation programs. Employers should also take reasonable efforts to keep this information private.15
Employers must provide a reasonable accommodation that does not impose an undue hardship on the employer. However, employers can still refuse to hire, and can still discharge, an employee who is unable to perform his or her duties because of current drug or alcohol use.
Under California’s Kin Care leave law, employees can use up to half of their sick leave to care for a family member. Employees eligible for sick leave can use Kin Care to care for close relatives, including a
- spouse, or registered domestic partner,
- grandparent, and
Kin Care is not limited to major illnesses. It can also apply to minor illnesses, like a cold or flu. 16
Employers with 15 or more employees must grant an employee a paid leave of absence for organ donation or donation of bone marrow. Employees must provide written verification to the employer of the donor program. After the leave, the employer must restore the employee to the same or equivalent status. As of 2020, employers with 15 or more employees must give eligible employees 30 days of unpaid leave for the purpose of organ donation.17
Under the FMLA, leave is available for a sick or injured military service member for employees who are the
- parent, or
- next of kin.
Injured service member leave provides for up to 26 weeks of unpaid leave during a 12-month period.
Meanwhile, CFRA makes leave available due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s
- domestic partner,
- child, or
- parent in the Armed Forces of the United States.
Under California’s Military Spouse Leave Law, eligible employees who work 20 or more hours per week and the employer has 20 employees or more, can take military spouse leave. This provides for up to 10 days of unpaid leave while a military spouse is away on deployment.
Most types of leave do not require an employer to pay the worker during the time away from the company. But certain types of leave are eligible for paid leave and others may trigger State Disability Insurance (DI) benefits.
Many employers have company provisions for paid leave when an employee is
- caring for a family member, or
- other types of leave.
Employees should review their employment policies and benefits to understand what types of leave are paid and the payment terms and conditions.
Paid sick leave in California requires employers to provide at least 24 hours or 3 days of paid sick leave per year with a “no accrual/upfront” policy. Under an “accrual” policy, employees can earn sick leave over time, for a minimum of 1 hour of paid sick leave per 30 hours of work.
California may require wage replacement or paid leave during certain types of leave. This includes:
- Paid Sick Leave
- Kin Care
- Paid Family Leave (PFL)
- Disability Insurance
- Workers’ Compensation
- Organ/Bone Marrow Donation
The amount an employee will be paid during paid sick leave depends on the amount of paid sick leave the employee has accrued. Generally, non-exempt employees are paid at their regular hourly rate. Exempt employees are paid in the same way the employer calculates wages for other paid leave (such as vacation pay).
Example: Joseph works for a computer company and receives paid sick leave benefits. Joseph has accrued 6 days worth of sick leave. Joseph gets sick and has to stay home for 10 days before he is well enough to return to work. Joseph may be able to take up to 12 weeks off under California leave laws. However, Joseph may only be paid for 6 days of the 10 days away from work.
If leave is related to an illness that makes the employee unable to work for a period of time, the employee may be able to file a disability insurance claim. This can provide at least partial wage replacement. If an employee is injured on the job, wage replacement may come through filing a workers’ compensation claim.
The length of time an individual will get paid during leave depends on
- their company’s policy towards paid leave,
- the reason for the leave, and
- how many hours of paid time off (PTO) or sick leave the employee has accrued.
For many employers, there is a cap on the amount of paid sick leave (or other PTO) that can carry over to the next year.
If a qualifying employee is donating an organ, the employee may be eligible for up to 30 days of paid leave. If the employee is donating bone marrow, the employee may be eligible for paid leave for up to 5 days.
Under the FMLA, employers are generally required to keep providing an eligible employee’s health insurance benefits during a qualifying leave. However, the employer can require the employee to pay the same portion of health insurance premiums the employer required before taking leave.
If the employee’s leave does not qualify or the employee is taking time beyond the amounts provided by California or federal law, the employee may be required to cover their own health insurance premiums.
There are limited exceptions where an employer does not have to allow employees to take leave. This includes:
- Types of leave not covered by federal, state, or local law
- Employers who are not covered by leave laws
- Employees who do not qualify for leave
Example: Brian is starting work as a writer at a new tech company. The company only has 6 employees with plans to grow. After 2 months, Brian tells the boss he needs to take a couple of days off of work to go see his friend’s band play in Las Vegas. The boss tells Brian that if he takes those days off, he should not bother coming back to work.
Brian may not be protected under state or federal leave laws. The company may not qualify as an employer under the FMLA or other leave laws because there are only 6 employees. Taking leave to visit a friend or take a vacation is not a qualifying type of leave. Additionally, Brian has only been with the company for 2 months and may not have worked enough time to become an eligible employee.
Employees who are protected under leave laws cannot be demoted for taking leave. Employers must allow the employee to return to the same or equivalent position after returning from qualified leave. 18
An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions. It must involve the same or substantially similar duties and responsibilities.
- Substantially equivalent skill, effort, responsibility, and authority;
- Same or geographically nearby worksite; and
- Same shift or the same or equivalent work schedule.
If the employee requests an accommodation when returning to work, the employer can provide a different shift or position. However, the employee cannot be induced to accept a different position by the employer that is against the employee’s wishes.
An employer is generally prohibited from reducing pay when coming back from leave. Employers should be given the same or an equivalent opportunity for pay, including:
- Profit-sharing, and
- Other similar payments.
An employee on leave is also entitled to a bonus if other employees on similar types of leave are also eligible to receive a bonus.
Example: Sherman and Bart both work for the same company in similar positions. Sherman is on a 2-week leave for vacation using accrued time off. Bart has to take a 2-week leave to care for a sick child using accrued sick leave. If Sherman receives the company’s annual bonus during his leave, Bart should also be eligible to receive the company’s annual bonus.
Employees on leave should also be provided any unconditional pay increases, such as cost of living increase, when they return to work. Other conditional pay increases should be granted according to policy and should not be restricted because the employee goes on qualifying leave.
Additionally, the same benefits should also be available. Employees cannot be made to re-qualify for benefits they had before leave. Leave also cannot be counted as a break in service for the purpose of vesting in certain benefits. Benefits may include:
- Health insurance
- Annual leave
- Educational benefits
- Sick leave
- Disability insurance
- Life insurance
If an employee is no longer qualified for the job available because the employee needs to complete a course, get a license, or have a minimum number of hours because the employee was on leave, the employer should give the employee a reasonable opportunity to complete those requirements when returning to the job.
If the job is no longer available, an employer should allow the employee to return to an equivalent position in terms of
- benefits, and
- working conditions.
Employers are prohibited from retaliating against employees under state and federal leave laws. If an employer retaliated against you for taking qualifying leave, fired you, or threatened to fire you for taking, you may be able to file a lawsuit against your employer.
Talk to a California labor and employment lawyer about your case and how to hold your employer accountable for leave law violations. If you do not think you can afford to hire an attorney, many California employment lawyers represent workers on a contingency basis. This means the lawyer will not get paid until you do.
Most California leave laws require employers to pay employees’ attorney’s fees in successful lawsuits. If you win your case, your employer may be responsible for paying your legal fees and costs.
The damages available in a wrongful termination or leave violation lawsuit depend on the type of violation and the state or federal laws involved.
When an employee is retaliated against or terminated because of a leave law violation, the employee may be eligible for:
- Compensatory damages;
- Lost back pay;
- Lost future wages;
- Interest on back pay;
- Lost benefits;
- Liquidated damages;
- Reinstatement; and
- Legal costs and fees.
If an employer is violating family leave or other California employee rights for one worker, the employer may also be doing it to other employees. A case against the employer may become part of a class action lawsuit on behalf of a large number of employees.
For questions about California leave laws or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Family and Medical Leave Act, 29 U.S.C. § 2601.
- California Family Rights Act (CFRA).
- CFRA (the New Parent Leave Act was repealed).
- 29 USC §2611.
- See City of Los Angeles Paid Sick Leave Ordinance (Employers are required to provide paid sick leave to all employees who work at least 2 hours a week for the same employer for 30 days or more in a year). California Senate Bill 1383 (2020); Cal. Govt. Code 12945.2.
- Section 101(11) of FMLA. AB 1041.
- NPLA, see footnote 3 above.
- California Election Code 14000.
- California Labor Code 230.
- California Labor Code 230(c).
- California Labor Code 230.1.
- California Labor Code 230.5.
- California Labor Code § 230.8.
- California Labor Code § 1041.
- California Labor Code § 1025-1026.
- California Labor Code § 233.
- California Labor Code § 1508-1513; California Assembly Bill 1223 (2019).
- Department of Labor – Family and Medical Leave Act Advisor.