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California Mandated Leaves of Absence

Posted by Caleb A. Miller | May 14, 2022 | 0 Comments

California has many State-Specific leaves of absences depending on the size of the employer. These leaves of absence have separate requirements to qualify, and many employers are choosing not to allow employees this right, or unlawfully requiring employees to use paid sick days or vacation days before. We have discussed the Family and Medical Leave Act (FMLA) as well as the California Family Rights Act (CFRA) before. The attorneys at Miller Wilmers APC are well versed in Labor law and can help guide you through the California state mandated leaves of absence. Let's dive into some of the others. 

Military Leave

If an employee is called to active duty in the U.S. Military, Reserves or National Guard, they are eligible for unpaid military leave of absence in accordance with California Government Code section 19775, the Military and Veterans Code section 389-399.5 and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). 

Federal Military Leave Law

USERRA protects an employee's job rights whether they voluntarily or involuntarily take leave to perform military services. This is applicable to all employers in California, regardless of size or how many hours they have worked for their employer. Foreign employers who do business in the United Sates are obligated to follow this law. For clarity, whether the country is in peace or war time; active duty, reserves, national guard, commissioned corps and National Disaster Medical System members are entitled to their job protected rights. When a person returns from military service, they are entitled to return to their civilian job or a comparable job so long as the employer had advanced notice of service, the employee had five or fewer years of military service while employed by that employer, the employee returns to work or applies for employment in a timely manner after the completion of service, and the person did not receive a dishonorable discharge. 

USERRA also prevents an employer from discriminating against an employee who requests, takes, or supports a military leave of absence. In addition to these protections, USERRA protects employees from retaliation or other harassment. 

California Government Code 19775

Under this State law, individuals who are employed in California are entitled to up to 30 days of paid military leave for active duty (including active duty training). The paid military training does not cover leave for inactive duty training, such as drills. 

California Family Military Leave Act for Spouses of Military Members

Married to a service member? Don't worry the State has taken your concerns into consideration. This state law applies to employers with 25 or more employees and provides unpaid leave to employees who are married to deployed military service men or women. Employees may take family military leave when their husband or wife is on leave from their deployment during a time of military conflict. This law is more strict than the protections for the members serving military duties and only provides up to 10 days of unpaid leave to employees. The employee must also be working an average of 20 or more hours per week while a spouse of a qualifying military member. The “qualified military member” is one who has been deployed at a time considered as a military conflict, to an area that is defined as a combat one by the President of the United States.

Jury Duty and Witness Leave

California Labor Code section 230 prevents an employer from discharging or in any manner discriminating against an employee for taking time off to serve as required by law on an inquest jury or trial jury aka serving jury duty. The employee is required to give reasonable notice to their employer. This law extends to employees who are called into court by subpoena to serve as a witness in any judicial proceeding. 

Crime Victim Leave

Labor Code section 230 et seq. prevents an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of a crime for taking time off from work to obtain or attempt to obtain any relief. This relief includes a temporary restraining order, restraining order, or other injunctive relief to ensure their health, safety, or welfare of themselves or their children. If an employer is not provided advanced notice, employers may require a certification such as a police report indicating that the employee was a victim, a court order or documentation from a licensed medical professional to include a domestic violence counselor, sexual assault counselor, victim advocate, healthcare provider, or mental or physical health provider. Employers are further required to provide reasonable accommodations to such employees. 

Employees also may take time off for such reasons if an immediate family member has been a victim of a specified crime.  “Immediate family member” for purposes of this policy means a spouse, domestic partner, child, child of a registered domestic partner, stepchild, brother, stepbrother, sister, stepsister, parent, step-parent or legal guardian of an employee or the employee's spouse or domestic partner or a person who stood in loco parentis to the employee when the employee was a minor child or to whom the employee stands in loco parentis when the person was a minor, or any other individual whose close association with the employee is the equivalent of a parent, child, spouse, domestic partner, or sibling. 

Time Off For Volunteer Firefighters, Law Enforcement, Or Emergency Rescue Personnel

Labor Code section 230.3 prevents an employer from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as a colunteer firefighter, reserve peace officer, or emergency rescue personnel. An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has taken time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

If the employer has 50 or more employees, the employee is permitted to take temporary leaves of absence not to exceed 14 days per calendar year to engage in fire, law enforcement or emergency rescue training. 

Time Off for Children's School 

Labor Code section 230.7 prevents an employer from firing or discriminating against an employee who is required to visit their child's school for disciplinary matters. Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has taken time off to appear in the school of a pupil pursuant to a request made under Section 48900.1 of the Education Code shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.

Labor Code section 230.8 prevents an employer of 25 or more employees from firing or discriminating against an employee who is looking to find, enroll, or reenroll their child in school or with a child care provider.

California Paid Sick Leave 

California's Paid Sick Leave Law required employees who work in California for 30 or more days for the same employer to accrue at least one hour of sick leave for every 30 hours worked. The Employer may still put a cap on paid sick leave at 24 hours or three days but the employer must allow an employee to use their paid leave. Employers are also required to allow a rollover of sick leave into the next year and can cap that rollover to a total of no less than 48 hours or six total days in your sick leave bank. 

Organ and Bone Marrow Donation Leave

Labor Code section 1510 provides that an employer shall grant to an employee a paid leave of absence for a maximum of 30 business days in a one-year period for the purpose of donating their organ to another person. Subsection (b) provides for an additional 30 days for organ donation brining our total to 60 business days of job protected leave. 

Employers must also provide five business days of leave in a one-year period for an employee who is a bone-marrow donor to donate their bone marrow to another person. 

Any period of time during which an employee is required to be absent from the employee's position by reason of being an organ or bone marrow donor is not a break in the employee's continuous service for the purpose of the employee's right to salary adjustments, sick leave, vacation, paid time off, annual leave, or seniority.

Drug Rehabilitation Leave

Labor Code section 1025 requires employers with 25 or more employees to reasonable accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer. This employer is required to safeguard the privacy of the employee as to this fact and an employer may be on the hook for discrimination and other Fair Employment actions for doing so. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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