Paternity Leave in California – A Primer for New Dads

Paternity leave is time off for parenting granted to

1. a new biological father,
2. a male partner of a pregnant woman,
3. a surrogate father, or
4. an adoptive father.

California and federal law grant new fathers up to 12 weeks of unpaid paternity leave to bond with a newborn, a newly adopted child, or a new foster child. To qualify, new dads must have worked for their employer at least 1,250 hours in one year just prior to taking leave.

These laws also provide for the same amount of leave to allow employees to care for either

• their own serious health condition or
• the serious health condition of a family member.

“Paternity leave” is a term that refers to the time a new father takes off from work to provide childcare for a new child. Paternity leave is often discussed with maternity leave or pregnancy disability leave. The latter is the time off from work a woman takes while she is “disabled” as a result of her pregnancy or the birth of a child. Paternity leave is a form of “family leave.”

Some employees may be entitled to “paid family leave” via California’s Paid Family Leave Program. Workers can also use the following to receive payment during paternity leave:

• vacation pay, or
• sick pay.

After taking paternity leave, most workers have a right to return to the same job or position as they had filled prior to the leave. If not the same job, then they have an entitlement to fill a similar position.

Note that it is unlawful for an employer to violate an employee’s family leave rights. An employee can file a complaint and/or lawsuit if a violation occurs.

Note too that some employers unlawfully retaliate against a worker that wishes to use his paternity leave. Unlawful retaliation can take the form of:

• harassment,
• wrongful termination, and/or
• workplace bullying.

Our California labor and employment law attorneys will answer 6 key questions in this article:

• 1. How long is paternity leave in California?
• 2. What are the eligibility requirements to take family leave?
  • 2.1. Child bonding leave
  • 2.2. Serious health conditions
• 3. When does the new father take the leave?
• 4. Are the weeks of leave paid?
• 5. Does the employee have job protection upon taking leave?
• 6. What happens if an employer violates an employee’s leave rights?

1. How long is paternity leave in California?

State and federal laws grant many new fathers in California the right to take up to 12 weeks of family leave per year. This is not paid parental leave.¹

This leave can be used for the following:

• to bond or connect with a new child, a child adopted by the employee, or a child placed for foster care with the employee,
• to care for the employee’s family member who has a serious health condition, and/or
• to get treatment because the employee is suffering from a serious health condition and is unable to perform his/her job.²

There are two main statutes that provide these rights. These include:

1. The Family and Medical Leave Act (FMLA). This Act is a federal law that gives eligible employees up to 12 weeks of unpaid leave to care for a new child or a family member with a serious health condition.³
2. The California Family Rights Act (CFRA). This is similar to the FMLA and grants new dads up to 12 weeks of unpaid parental leave (which is sometimes referred to as CFRA leave).^{4 5}

Note that if an employee is entitled to take leave under two or more of these laws, his total leave time is capped at 12 workweeks.

Note too that, as a practical matter, a company’s paternity leave policy is often discussed in its:

• employee handbook,
• FAQs, or
• human resources policy.

2. What are the eligibility requirements to take family leave?

Whether or not an employee is eligible for leave depends on the particular reason for it. Eligibility differs if the parent is taking:

• child bonding leave, or
• leave to care for a serious health condition.

2.1. Child bonding leave

The above laws grant an employee up to 12 weeks of family leave benefits to bond with and care for:

• a newborn,
• a newly adopted child, or
• a new foster child following foster care placement.

The eligibility requirements for this particular leave under CFRA are:

1. the worker’s employer must have at least 5 employees (if so, the employer is deemed a “covered employer”),
2. the worker must have been employed with the company for more than one year prior to his leave date, and
3. the employee must have worked at least 1,250 hours for the company within the 12 months prior to taking leave (which usually means the worker is not a part-time employee).⁶

2.2. Serious health conditions

The above laws also allow qualifying employees to take leave time to care for:

• the serious health condition of a family member, or
• their own serious health condition.

The eligibility requirements for this particular leave under CFRA are:

1. the worker’s employer must have at least 5 employees,
2. the worker must have been employed with the company for more than one year prior to his leave date, and
3. the employee must have worked at least 1,250 hours for the company within the 12-month period prior to taking leave.⁷

3. When does the new father take the leave?

An employee eligible to take family leave is not obligated to take all 12 weeks off of work at once. However, the worker does have to take all of the time off within one year of:

• the date of a new child, or
• the date of a serious health condition.⁸

This means the worker has some flexibility when deciding the specific dates to take off of work.

Note that an employer can require the worker to take his time off from the worksite in blocks of two weeks at a time.⁹

4. Are the weeks of leave paid?

A worker may be entitled to paid family leave benefits (PFL program) in certain situations.

California’s Paid Family Leave Program entitles some workers to receive up to six weeks of paid family leave when taking time off to care for:

• a newborn,
• a newly adopted child, or
• a new foster child.¹⁰

Paid family leave law benefits can mean a benefit amount of up to $1,300 per week for up to six weeks.¹¹

Employees can check with California’s Employment Development Department (EDD) to learn more about PFL eligibility. Note that the EDD uses SDI Online so that workers can submit the following:

• PFL claims, and
• state disability insurance forms.

In addition, when a new father takes paternity leave, he can use any of the following to receive payment from his employer:

• vacation pay,
• sick leave pay, or
• any other form of paid time off.

Note that federal employees get 12 weeks of paid leave after the birth or placement of a child.

5. Does the employee have job protection upon taking leave?

Most employees have the right to get their job back when they return from paternity leave.¹²

This right includes the right to:

• get the same job as the employee worked prior to his leave, or
• get a similar job as to his old one.¹³

If a similar job, then this position must be similar in terms of:

• pay,
• benefits,
• schedule,
• location,
• job duties and responsibilities, and
• working conditions.¹⁴

6. What happens if an employer violates an employee’s leave rights?

It is unlawful for an employer to violate an employee’s family leave rights. An employee can file a complaint and/or lawsuit if a violation occurs.

Note that if a violation does take place, the employee must first state a complaint with California’s Department of Fair Employment and Housing (DFEH). This complaint must be filed before the employee can file a civil lawsuit against the employer.

Upon filing this grievance, the DFEH may decide to pursue an action against the employer. If not, it will issue the employee a “right-to-sue letter.” The letter means the employee can then sue his employer in civil court.

Note that sometimes an employer (or co-workers) may retaliate against a worker when he tries to exercise his right to take paternity leave. This retaliation is also a violation of the law. Retaliation can take the form of:

• workplace harassment,
• workplace bullying,
• wrongful termination, and
• failing to pay wages.

Note too that sometimes retaliation to leave-taking may even rise to the level of unlawful employment discrimination. California law and federal law prohibit an employer from discriminating against an employee on the basis of:

• race,
• gender,
• religion,
• age,
• pregnancy, or
• medical conditions.

For additional help…

For additional guidance on paternity leave laws or to discuss your family leave law case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide bona fide legal advice that you can trust. Our employment attorneys assist clients throughout the state of California, including the cities of San Francisco and Los Angeles.

Click here for parental leave policies by state, including Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, D.C.

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