CLIFFS NOTES FOR SMALL CALIFORNIA EMPLOYERS: LEAVES OF ABSENCE
Employees are entitled to various leaves of absence and time off work under both state and federal law. Many employers, particularly small employers, are unaware of the extent and in some instances even the existence, of various rights employees have to leaves of absence and time off from work. What follows is an abbreviated version of California employers’ legal obligations to provide leaves and time off from work for small businesses, i.e., those employing fewer than 25 employees. Of course, large employers are bound to provide these same rights; however, those employers with more than 25 employees are required to provide leaves and time off in addition to those identified below.
Many leaves have particular requirements, including notification and certification and provide reinstatement rights, which will not be discussed herein, but are important. Employers must take steps to understand and comply with the intricacies of these laws. Unless otherwise noted, the below leaves/required time off apply to all employers with no minimum threshold number of employees.
Americans With Disabilities Act (“ADA”) (42 U.S. C. Section 12101 et seq.) and the California Fair Employment and Housing Act (“FEHA”) (Gov. Code Section 12945 et seq.)
Employers with 15 or more employees have an obligation to provide a reasonable accommodation to qualified individuals with a disability under the ADA. This same requirement is imposed by the California counterpart, FEHA, and applies to employers with 5 or more employees. The courts have held that in many instances, leaves of absence that are not indefinite will constitute a reasonable accommodation. The reasonableness of the length of any leave under these statutes requires an assessment of the business needs of the employer, the position held by the employee, and the burden that the employee’s absence will inflict, among other considerations.
Pregnancy Disability Leave (Cal. Government Code Section 12945)
Employees are entitled to up to four months for pregnancy-related disabilities that prevent the employee from performing her job. Government Code Section 12945 prohibits employers with 5 or more employees from refusing to allow employees affected by pregnancy, childbirth or related medical conditions to take a leave on account of pregnancy. There are no minimum length-of-service requirements for an employee to be eligible for protection.
An employee actually disabled by pregnancy may take the leave continuously, or, if provided for by her doctor, the employee may take leaves intermittently or on a reduced schedule basis.