Employment Law

Everett F. Meiners, Partner, Parker, Milliken, Clark, O’Hara & Samuelian, Los Angeles. Contributing author to Advising California Employers published by CEB.

Introduction
At the end of the last legislative session, Governor Davis signed into law a requirement that obligates employers to grant additional leave to their employees in the event of a serious illness of a broadly defined "family" member. Beginning in 2004, this new law provides an additional ground for employees to take leave from their employment. The "Paid Family Care Leave" law was added to the Unemployment Insurance Code as section 3300 et seq.
This new legislation provides that an employee may receive "up to six weeks of wage replacement benefits" from the State of California if they "take time off work to care for a seriously ill child, spouse, parent, domestic partner, or to bond with a new child." The benefits replace 55% of an employee’s salary, up to a maximum of $728 a week.

Commencement, funding, and employee’s entitlement to benefits
Employees are not entitled to commence receiving benefits under this new law until July 1, 2004. The benefits received are funded by additional employee contributions to the California Disability Fund commencing on January 1, 2004. Employers are not required to make any contributions to this fund. It is estimated that the contributions by employees will run from between $11 and $72 a year. All employees who are entitled to benefits under the State Disability Insurance (SDI) fund will be entitled to receive benefits under the new program referred to as the Family Temporary Disability Insurance (FTDI) plan. Similarly, all employees who are required to contribute to the SDI fund will be required to make payments to the FTDI fund.

The FTDI plan will be administered by the State Disability Insurance Fund. No more than six weeks of FTDI benefits may be paid to any employee within a twelve-month period. The definitions of the persons for whom FTDI may be taken are very broad and include adopted or foster children, as well as legal wards and a child of a domestic partner. Similarly, the definition of "parent" is very broad and includes foster, adoptive, or stepparents, as well as one who stands "in loco parentis" to the employee. Other than for care given to newborns during the first year, the benefits are available only for the "serious health condition" of the individual for whom the leave is being taken.

An employee is entitled to receive benefits under this plan without any length of service requirement. The only time limitation is that the employee is not entitled to benefits during the first seven days of his or her FTDI period. In addition, prior to receiving any benefits, the employer may require the employee to use up to two weeks of earned but unused vacation leave.

Any time taken under the FTDI plan must be credited against the employee’s right to leave under CFRA (California Family Rights Act) and FMLA (Family and Medical Leave Act). The statute does not set forth any particular time period for the commencement of the twelve-month period for benefits.

Employers will want to consider adopting a policy requiring that the twelve-month period runs concurrently with the twelve-month period adopted for CFRA and FMLA leave. Also, employers may require employees to exhaust at least two weeks of vacation pay prior to taking unpaid FTDI leave. As noted in the case of Bachelder v American West Airlines, Inc., (9th Cir, 2001) 259 F3d 1112, it is most beneficial for an employer to adopt the rolling twelve-month period measured backward from the requested leave.

No certification requirement
There is no specific requirement that the employee provide a certification from a doctor of the fact that the person for whom the employee is taking leave is subject to a "serious health condition," as required by CFRA. However, the definition of serious health condition refers to CFRA. The Act provides that if any individual "falsely certifies the medical condition of any person" in order to obtain FTDI leave, with the "intent to defraud," that they are subject to a penalty in the amount of 25% of the benefits paid.

Re-employment
There is no requirement that an employer re-employ any individual who takes FTDI leave, unless the employer has more than 50 employees and is subject to CFRA and FMLA. However, it would be grounds for a wrongful termination claim based on breach of public policy to terminate an employee for exercising his or her right to take FTDI leave.

The State is in the process of developing notices to employees and employers with respect to their rights and obligations under this new law.

Advising California Employers
2d edition, 1556 pages, 2 looseleaf volumes, updated 1/03, BU-32030, $239