Smaller Employers in California Required to Provide Job-Protected Unpaid Parental Leave Starting January 1, 2018
Governor Jerry Brown has signed the New Parent Leave Act, which will become effective January 1, 2018 and requires California employers with 20 to 49 employees within 75 miles to provide up to 12-weeks of job-protected unpaid parental leave. We summarize the new law below.
The new law essentially expands coverage to employers with between 20 and 49 employees “within 75 miles” – that is, employers who are too small to be covered under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), both of which apply to employers with 50 or more employees.
The law covers employees with “more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period,” which is the same as the eligibility requirements under the CFRA and FMLA.
The law permits leave for a single purpose: “to bond with a new child within one year of the child’s birth, adoption, or foster care placement.” In taking that leave, the employer must allow the employee to utilize accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, and once the leave is finished, the employer must “provide a guarantee of employment in the same or a comparable position upon the termination of the leave.”
Further, employers cannot refuse to maintain and pay for coverage under a group health plan during the leave. The employer can, however, recover the premiums from an employee who fails to return from the leave for reasons other than “the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the control of the employee.”
Leave under this law is limited to the specified parental leave usage and is not available for the purposes of caring for a parent, spouse or child who are themselves unable to work because of a serious health condition, as available under the CFRA and FMLA. If both parents are employed by the same employer, the employer is only required to grant leave totaling 12-weeks, and may, but is not required to, grant simultaneous leave to both employees.
The “within 75 miles” language means that employees at worksites containing substantially fewer than 20 employees will be covered if, in the aggregate, there are 20 to 49 employees within 75 miles at multiple work sites under the same employer.
While the law does not entitle employees to a new paid leave entitlement, small employers must remember that employees may utilize their other accrued but unused paid leave entitlements (i.e. vacation, sick, etc.) when they are out on parental leave.
Employers should keep in mind that they cannot require employees to utilize accrued paid leave while on parental leave, which could result in an employee’s extended absence. Therefore, employers may want to consider reviewing and revising their leave policies to account for this issue.
The 12 weeks of leave provided by this law is in addition to the up to 4 months of pregnancy disability leave (PDL) available to employees working for an employer covered by the California PDL law, i.e. employers with five or more employees. Through January 1, 2020, the Department of Fair Employment and Housing (DFEH) will create a parental leave mediation pilot program. Under the program, within 60 days of receiving a right-to-sue notice, an employer may request that all parties participate in a DFEH mediation. If the employer makes such a request, the employee may not pursue a civil action until the mediation is complete or until the employee gives notice that the employee is electing not to participate in the mediation. The employee’s statute of limitations would be tolled during the course of the mediation.