Leaves of Absence – to Pay or Not to Pay? That Is the Question!

Posted 11-06-2013

Employees are eligible for various job-protected leaves of absence, as provided by federal and state laws. Reasons for leaves include but are not limited to caring for one’s own serious health condition, caring for a family member’s serious health condition, baby bonding, pregnancy, and military service. Numerous state laws also authorize additional leaves such as for victims of domestic violence and other crimes, witnesses in legal matters, and volunteers for emergency services.

While applicable laws and your company’s policies may provide for time off, managers and employees often ask, “Is the time off paid?” Generally leaves are unpaid. But there are several payment options that might apply. For example, using paid sick time, personal time off, and/or vacation time, disability pay, or Paid Family Leave (“PFL”). PFL is offered in selected states such as California, New Jersey and the District of Columbia.  And Rhode Island will offer PFL beginning January 1, 2014.

Since 2004, California’s PFL has provided payment to employees when they take time off to care for a seriously ill child, parent, spouse, or domestic partner, or to bond with a new child (through birth or adoption). Recently, California enacted a law (SB 770) that expands PFL eligibility. Effective July 1, 2014, PFL will extend to time off to care for a seriously ill grandparent, grandchild, parent-in-law or sibling. Although payment eligibility under PFL has been expanded, it is important to remember that the Family & Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) do not authorize eligible employees to take a job-protected leave to care for the extended family members covered by this new law.

So how will the laws interact? Leave requests are expected to increase in California. Employers will probably consider leave requests to care for extended family members, as set forth in new law, as discretionary personal leaves, rather than job-protected leaves under FMLA or CFRA.

What this means to you:

Regardless of the state you work in, leaves of absence laws and regulations can be complex. When an employee requests time off to care for (1) his or her own serious health condition, (2) the serious health condition of a family member, or (3) to bond with a new child (through birth or adoption), seek guidance from your local expert- an HR representative or attorney. You should also consult with an expert before you deny a leave request or take any adverse action (e.g. discipline, demotion, termination) against an employee who has requested or taken a leave.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:35+00:00

About the Author:

Geralynn Patellaro has been an employment attorney for 20 over years. She has represented employers and employees in claims such as wrongful termination, harassment, discrimination, co-employment, and wage and hour claims. Her passion is in the areas of advice and counsel and training. She understands the challenges that managers face, having held positions in Marketing, Sales, Operations and Human Resources at various companies. Past employers include Fortune 100, high tech, and start-up companies. Geralynn earned her undergraduate, MBA and law degrees with honors. She has offices in Silicon Valley and Northern Nevada, and has partnered with Fair Measures since 2005. Geralynn joined our team in 2012.