Most of us will experience some time in our lives that we are too ill to work or need to care for a loved one. Whether you are bonding with a new baby, caring for an ill family member, or need time off because of your own health condition there are leave laws that provide protection so that you can take off the time you need without fearing you will lose your job.
Family Medical Leave Act
The Family Medical Leave Act (FMLA) is federal law that entitles employees to a total of 12 workweeks of leave during any 12-month period for the care of a family member or where the employee is unable to perform the functions of their position due to the birth or adoption of a child, to care for a spouse, child or parent with a serious health condition, or because of the employee’s own serious health condition. (29 USCS § 2612). The FMLA does not require your employer to pay you for the time you take off but you may use accrued leave or qualify for compensation under another law.
California Family Rights Act
Similarly to the FMLA the California Family Rights Act (CFRA) employees also have the right to take leave for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition. (Gov. Code, § 12945.2)
The Healthy Workplaces, Healthy Families Act of 2014
The Act added Labor Code section 246.5, which provides that “An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend,or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.” (Cal Lab Code § 246.5.(c)1) The law equally applies to “the state, political subdivisions of the state, and municipalities.” Employees under a collective bargaining agreement are only exempt from this section where among other requirements they are, “covered by a valid collective bargaining agreement if the agreement expressly provides for final and binding arbitration of disputes concerning the application of its paid sick days provisions” (Cal Lab Code § 245.5 (a) 1)
Labor Code section 233
An employee’s ability to use their leave is also protected by Labor Code section 233, which allows employees to use up to the amount accrued in six months of accrued sick leave for family sick leave. This section explicitly applies to public sector employees. Labor Code section 234 provides that employers’ attendance policies may not count the use of family sick leave under section 233 for disciplinary purposes. (Cal Lab Code § 233 – 234)
Retaliation
FMLA prohibits an employer from discriminating or retaliating against an employee who has taken protected leave under the FMLA. Employees who are retaliated against for taking protected FMLA leave can sue under the FMLA. The statute itself does not contain any prohibition against discrimination or retaliation. Instead, the FMLA makes it unlawful to “interfere” with, “restrain” or “deny” the exercise of or attempt to exercise, rights provided by the Act. The U.S. Department of Labor (DOL) has read this proscription against discrimination into the statute. The Regulations make it unlawful to “discriminate” against employees who have used FMLA leave or to use the taking of FMLA leave as a negative factor in hiring, promotion decisions, discipline or other employment actions. 29 C.F.R. §825.220(c).
The CFRA also addresses forms of retaliation including discrimination, discharge, expulsion, fine or refusal to hire based on use of CFRA. (Cal. Gov’t Code §§ 12940(h), 12945.2(l) and Cal. Code Regs. tit. 2, §
11094.)
The Healthy Workplaces, Healthy Families Act prohibits retaliation against employees who use paid sick time, oppose a policy or action that violates the new requirements, cooperate in an investigation or prosecution of an alleged violation of the Act, or file complaints with the Labor Commissioner. Under the Act, there is a rebuttable presumption that an employer has unlawfully retaliated if an employee is denied the right to use accrued sick days, is discharge/threatened with discharge, is demoted, is suspended, or in any manner suffers discrimination within 30 days after the employee has exercised a right under the Act.
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