Leave of Absence in California – What is The Law?

Several federal and California laws provide paid or unpaid leave for a variety of situations. Some leave laws provide wage replacement, such as unemployment disability benefits. When the leave period ends, the employee can return to work in the same or an equivalent position. If the employer denies leave or does not let the worker return, a lawsuit can be filed.

What types of leave of absence can California employees take?

California employees have a wide variety of leave of absence options. Some are guaranteed by federal law. Many come from California state law. Each covers a particular circumstance. While some are paid, most are not, though some employers choose to pay when they are not legally required to do so. Some last for months, while some others only excuse the worker’s absence for a couple of hours.

In California, eligible employees can make use of the following types of paid or unpaid leave for the following time periods:

Type of leave of absence	Maximum length of absence	Paid or unpaid
Sick Leave	Number of hours accrued by employee	Paid
Kin Care Leave	Half of the employee’s sick leave hours	Paid
Family Sick Leave under CFRA	12 weeks	Unpaid
Family Sick Leave under FMLA	12 weeks	Unpaid
New Parent Leave	12 weeks	Unpaid
Pregnancy Disability Leave	4 months	Unpaid
Paternity Leave	12 weeks	Unpaid
Bereavement Leave	Not legally required – maximum length depends on employment contract	Depends on employment contract
Voting Leave	Sufficient time to vote	Paid (up to 2 hours)
Crime Victims Leave	As long as necessary	Unpaid
Domestic Violence Victim Leave	As long as necessary	Unpaid
Jury Duty or Subpoena Leave	As long as necessary	Unpaid
Military Injury Leave	26 weeks	Unpaid
Military Spouse Leave	10 days	Unpaid
Leave for School Activities	40 hours per year	Unpaid
Literacy Education Leave	Reasonable accommodations	Unpaid
Drug or Alcohol Rehab Leave	Reasonable accommodations	Unpaid
Organ or Bone Marrow Donor Leave	5 days for bone marrow, 30 days for an organ donation	Unpaid

In addition to the state and federal employment laws that provide these types of leaves of absence, there are also local leave laws that may cover certain workers in California. For example, the Paid Sick Leave Ordinance in the city of Los Angeles requires employers to provide paid sick leave to all employees who work at least 2 hours in a week for the same employer for 30 or more days in a year.¹

However, not all employees are covered by these laws. For example, many types of leaves of absence in California come from the California Family Rights Act (CFRA). Employees are only eligible for CFRA leave if they:

• have been employed for at least 12 months before starting CFRA leave, and
• worked at least 1,250 hours for their employer.²

These workers have to be employed by a covered employer. Due to recent changes in the law, a covered employer is one that:

• has 5 or more employees, or
• is a political or civil subdivision of the State of California.³

If a worker is ineligible or works for an uncovered employer, they may be left without leave of absence rights. However, they may still have employee rights under the Americans with Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA) that require their employer to make reasonable accommodations for a disability.

Sick leave

One of the most commonly-used types of leave is sick leave. This is for employees who get sick, personally. California law entitles workers who work more than 30 days in a year to accrue at least 1 hour of sick time for every 30 hours worked.⁴ This leave is paid, though the employer can limit the amount of sick time accrued to 24 hours per year.⁵

During the coronavirus pandemic, California law increased the amount of sick leave available to workers in the state.⁶ These protections, however, are beginning to expire.

Many cities and counties in California provide additional sick time or looser accrual restrictions to employees within their jurisdictions.⁷

Workers who have exhausted their paid sick leave can take unpaid sick leave under the CFRA.⁸ While this law is typically used so workers can care for sick family members, it extends to the employee’s own serious health condition, as well.

Kin care leave

California employees can use up to half of their paid sick time as kin care leave.⁹ This lets workers use sick time to care for a family member who is sick, like a:

• child,
• parent,
• spouse,
• registered domestic partner,
• grandparent,
• grandchild, or
• sibling.¹⁰

Unlike for family sick leave under the CFRA or FMLA (see below), kin care leave does not require the family member to suffer from a serious medical condition. Any sickness suffices.¹¹

Family sick leave under the CFRA or FMLA

Both state and federal law provides family medical leave for when an employee’s family member is sick and needs care. California’s state law is generally more generous to workers.

The state CFRA lets eligible employees take up to 12 weeks of leave to care for an eligible family member who has a serious health condition. The leave is usually unpaid, unless the employee qualifies for wage replacement benefits under:

• state disability insurance, or
• a paid family leave (PFL) program.

While on leave, though, the employee is entitled to continue to receive his or her health insurance benefits.¹² When the leave period expires, the worker is entitled to their old job, or to one that is nearly identical.¹³

Eligible employees of covered employers can take CFRA leave to care for certain family members, including a:

• child,
• foster child,
• spouse,
• registered domestic partner,
• parent,
• grandparent,
• grandchild, or
• sibling.¹⁴

These family members have to be suffering from a serious health condition. Such a qualifying condition is a physical or mental condition that requires:

• inpatient care at a hospital, hospice, or residential health care facility, or
• continuing treatment or supervision by a health care provider.¹⁵

Covered employees are entitled to 12 weeks of CFRA leave in a 12-month period.¹⁶

California workers can also take family sick leave under the federal Family and Medical Leave Act (FMLA). However, fewer employers and employees are covered by the FMLA, and FMLA leave is always unpaid.¹⁷

New parent leave

The CFRA also entitles eligible workers in the state to a leave of absence following the birth of a child or placement of a foster child.¹⁸ The leave can last up to 12 weeks. Employees are entitled to 12 weeks of new parent leave in a 12-month period. New parent leave under the CFRA is generally unpaid, though some employees may be eligible for wage replacement benefits.

This type of leave of absence used to be covered by the California New Parent Leave Act. However, this law was repealed by Senate Bill 1383 in 2020 and the coverage that it provided was shifted into the CFRA.

Pregnancy disability leave

California law gives women who are “disabled” due to their pregnancy up to 4 months of pregnancy disability leave (PDL). This form of leave only applies to people if their employer:

• employs 5 or more people,
• is a state or local governmental entity, or
• is an agent of a covered employer.¹⁹

Expectant mothers are “disabled” if their health care provider thinks that she is unable to perform an essential job function due to her pregnancy. Some conditions that can arise to the level of a disability for pregnancy leave include:

• severe morning sickness,
• gestational diabetes,
• hypertension,
• preeclampsia, and
• loss of pregnancy.²⁰

Pregnancy disability leave is unpaid, unless the worker is eligible for a source of wage replacement benefits. However, workers on pregnancy leave are entitled to their employer-provided health care coverage.

After the birth of the baby, the mother may also be entitled to new parent leave under the CFRA.

Paternity leave

Both the state CFRA and the federal FMLA provides 12 work weeks per year of paternity leave for eligible new fathers. This leave is meant to allow the new father to bond or connect with a newborn child, adopted child, or child in foster care. It is generally unpaid, though some employees may be eligible for wage reimbursement through the California Paid Family Leave (PFL) Program.

Paternity leave under the CFRA must be taken within 1 year of:

• the birth of the new child, or
• the date of a serious health condition.²¹

Bereavement leave

There are no state or federal laws that guarantee California workers the opportunity to take bereavement leave. However, many employers offer bereavement leave for employees who have lost a:

• spouse,
• sibling,
• child,
• parent,
• grandparent, or
• grandchild.

The length of the bereavement leave and whether it is paid or unpaid will depend on the employer’s policies.

Voting leave

If they cannot vote in a statewide election outside of working hours, California voters are entitled to take off enough time at the start or end of their shift to vote. Voting leave is paid for the first 2 hours off. Workers have to give their employer at least 2 working days of notice that they intend to take voting leave.²²

Crime victim leave

California employees are entitled to crime victim leave. This leave protects them from workplace retaliation for taking time off from work to participate in:

• judicial proceedings related to an eligible crime,²³ or
• a proceeding involving victims’ rights.²⁴

In order to be entitled to take this leave of absence, crime victims must provide their employer reasonable advance notice, if feasible.²⁵

This type of leave is unpaid. However, workers can use paid time off, like a vacation day, instead.

Domestic violence victim leave

Victims of domestic violence are entitled to 2 forms of leaves of absence from work:

1. to seek legal help,²⁶ and
2. to get medical help or make use of domestic violence support services.²⁷

Both are unpaid leaves. However, employees are free to use paid time off (PTO) on these days, instead.

First, victims of domestic violence are protected from retaliation if they take time off work to seek any of the following types of legal relief:

• a temporary restraining order,
• any other form of restraining order, or
• other injunctive relief to ensure the health, safety, or welfare of the victim or their child.²⁸

Second, victims are protected from retaliation if they take time off from work to:

• seek medical care for injuries caused by crime or abuse,
• obtain services from a domestic violence shelter, program, victim services organization, or rape crisis center,
• get psychological counseling, or
• participate in safety planning to prevent future abuse, including relocation.²⁹

However, only workers employed by companies that have 25 or more employees are entitled to protection while seeking medical help.³⁰ Those that are covered must provide their employer with reasonable advance notice, unless it is not feasible to do so.³¹

Jury duty and subpoena leave

Both federal law and California law guarantee leave for employees who have been called to jury duty or to testify in court under a subpoena. The leave is unpaid. It lasts for as long as necessary, given the court proceeding. Employees have to give their employer reasonable notice that they have been called to serve on a jury.³²

Employers are allowed to demand proof of jury service or testimony. Employees can request this documentation from the court.

Military injury leave

The FMLA provides up to 26 weeks of unpaid leave in a 12-month period for employees to care for a sick or injured military service member. The service member has to be the employee’s:

• spouse,
• child,
• parent, or
• next of kin.³³

Military spouse leave

In California, employees are entitled to 10 days of unpaid leave if they are the spouse of a military service member who is deployed during a period of military conflict. The employee can take this leave of absence at any time during their spouse’s deployment.

To be eligible, though, the employee must:

• work for an employer than employs 25 or more people,
• work 20 or more hours per week, and not as an independent contractor,
• notify his or her employer of their intent to take military spouse leave within 2 days of receiving notice of the spouse’s upcoming deployment, and
• provide proof of that deployment.³⁴

Parental leave for school activities

Eligible employees can take up to 40 hours off from work each year for their eligible child’s school activities. School activity leave in California lets parents take time off to:

• participate in school or child care activities with the child,
• find, enroll, or re-enroll the child in a school or at a licensed child care provider, or
• address a school or child care emergency.³⁵

The leave is unpaid. It is also only available if the employee has used all vacation, personal leave, or other paid time off already.³⁶ Employees must provide notice of their intent to take school activities leave.

To have eligibility, the employee must work at an employer that has 25 or more employees, and either be a parent or a licensed child care provider.³⁷

Eligible parents include:

• parents,
• legal guardians,
• stepparents,
• foster parents,
• grandparents, or
• someone else who stands in loco parentis to the child.³⁸

Literacy education leave

Eligible adult employees who reveal to their employer that they struggle with illiteracy are entitled to literacy education leave. Employees are only eligible if their employer regularly employs 25 or more people.³⁹

This type of leave is different from others in that it does not entitle the worker to time away from the workplace. Rather, a California employer has to:

• make reasonable accommodations for the employee,
• help him or her find and enroll in a literacy education program or arrange for a tutor or other teacher to visit the employee’s place of work,
• refrain from retaliating against the employee for his or her illiteracy, and
• take reasonable efforts to keep the employee’s illiteracy private.⁴⁰

Time off work on literacy education leave is unpaid.

Leave for drug or alcohol rehab

Employers with 25 or more employees are legally obligated to provide leave for drug or alcohol rehabilitation. This type of leave requires these employers to provide reasonable accommodations for employees who voluntarily want to enter a treatment program. It is unpaid leave, though workers frequently use sick time, instead. Employers are not allowed to retaliate against a worker for seeking rehab, unless the employee would be unable to perform his or her job duties without endangering someone. Employers are also required to make reasonable efforts to keep the employee’s enrollment in a treatment program private.⁴¹

Organ or bone marrow donor leave

California employees are entitled to:

• 30 days of unpaid leave to donate an organ, or
• 5 days of unpaid leave to donate bone marrow.⁴²

It is up to the employee to verify that they are a donor and that there is a medical necessity for the donation.⁴³ Employers can require bone marrow donors to take a form of paid time off, instead, and can require organ donors to use 2 weeks of paid time off, first.⁴⁴

How long can I take a leave of absence?

The length of the leave of absence will depend on the type of leave. The maximum leave periods in California vary from military injury leave (26 weeks or 6 months) and pregnancy disability leave (4 months) down to voting leave (2 hours). Some forms of leave only require the employer to make reasonable accommodations for the employee’s absence.

Do I get paid for my leave of absence in California?

It depends on the type of leave and the company’s policy. Most leaves of absence are not legally required to be paid. Only the following types of leave have to be paid under California law:

• sick leave,
• kin care leave, and
• voting leave.

All other types of leave can be unpaid. However, some employers choose to pay for certain types of leave, like bereavement leave. These company policies will be in the employment contract, collective bargaining agreement, or employee handbook.

Additionally, California employees may be eligible for temporary disability insurance or a paid family leave (PFL) program. If they were hurt or made sick on the worksite, they may also be paid workers’ compensation.

Can I collect unemployment during my leave?

California workers who take a leave of absence from work may be eligible for unemployment benefits through the Paid Family Leave (PFL) program. PFL provides up to 8 weeks of unemployment benefits in a 12-month period. Those benefits are between 60 and 70 percent of the worker’s weekly wage, prior to the injury.

To be eligible for unemployment benefits through PFL, the worker must:

• be employed or actively looking for work when the period of leave began,
• be unable to do his or her regular job,
• have had at least $300 withheld from wages in State Disability Insurance (SDI) deductions in a 12-month period of time before going on leave,
• lose wages in order to:
  • care for a seriously ill family member,
  • bond with a new child, or
  • help a spouse, parent, child, or registered domestic partner in his or her military deployment to a foreign country by:
    • making financial arrangements,
    • caring for his or her offspring or parents,
    • attending a military-sponsored event, or
    • helping the military member during a rest and recuperation military leave.⁴⁵

Do I get my old job back?

Nearly all forms of workplace leave include job protection. The employee on a job-protected leave is legally entitled to his or her old job when they return from leave, or to a job that is substantially similar. A different job is generally similar if it has an equivalent:

• pay,
• benefits, and
• working conditions.⁴⁶

Employees not offered their old job or a similar one can file a lawsuit and demand reinstatement.

Can my employer deny a request for a leave of absence in California?

Employers may deny employer-provided sick leave for reasons set out in the employment contract. However, they generally cannot deny an employee’s request for leave under state or federal law, like the FMLA or CFRA.

Some situations where an employer can deny FMLA or CFRA leave are if:

• the employer is not covered by the law,
• the employee is not legally eligible for leave,
• family medical leave is being requested but the family member’s condition is not serious enough,
• the employee provided insufficient notice, or
• the employee has not provided the necessary information to support the request, such as proof that his or her spouse is an active duty service member and is being deployed.

If the employee is wrongfully denied leave, he or she can file a lawsuit.

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