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Paid Family Leave Benefits Available to California
Employees July 1, 2004
By Stuart
W. Miller and Robyn Todd
[June 2004]
In 2002, the California legislature enacted a law extending
the state’s disability compensation program to cover employees
who take time off from work to care for a seriously ill family
member or bond with a new child. The Paid Family Leave Insurance
Program (“Paid Family Leave”) is administered by
the State Disability Insurance (SDI) program and is funded entirely
by employees through payroll deductions. Deductions were required
to begin Jan. 1, 2004, and employees are eligible for benefits
beginning July 1, 2004.
PROGRAM OVERVIEW
The Paid Family Leave Program. Before Paid Family
Leave, employees who needed to take time off work for various
reasons could do so under three laws. California SDI provides
wage replacement for an employee’s own non-work-related
injuries, illnesses or medical conditions. The federal Family
and Medical Leave Act (“FMLA”) and California’s
Family Rights Act (“CFRA”) entitle employees working
for covered employers to take unpaid, job-protected leave to
care for a new child, a seriously ill family member, or their
own serious health condition.
Now, Paid Family Leave provides employees with paid time off
to care for a seriously ill family member or a new child. However,
an employer is not required to grant Paid Family Leave unless
the employee is also legally entitled to take, and does take,
that time off as FMLA or CFRA leave. Paid Family Leave determines
whether the time off is paid or unpaid. So, for example, if
an employee has already exhausted her entitlement of 12 weeks
of FMLA/CFRA leave per 12-month period before she requests Paid
Family Leave, the employer is not obligated to grant all or
any part of a requested six week Paid Family Leave.
Employees Covered. Three classes of employees are
covered for Paid Family Leave: (1) all employees covered by
SDI, (2) all employees covered by a Voluntary Plan for SDI,
and (3) self-employed individuals who participate in the SDI
Elective Coverage Program. Any employees who pay into SDI are
covered for Paid Family Leave, regardless of the employer’s
number of employees.
Employees are not required to work a minimum amount of time
to qualify for Paid Family Leave; they merely must suffer a
loss of wages and satisfy the Paid Family Leave requirements.
Employee contributions to Paid Family Leave under SDI are mandatory,
and employees may not opt out of making these contributions.
Benefits. An employee may receive up to six weeks
of Paid Family Leave benefits in any 12-month period. Weekly
benefits range from $50 to $728, depending on the employee’s
wages. Benefits are payable for claims beginning July 1, 2004.
To cover the initial cost of benefits, the SDI contribution
rate increased by 0.08 percent for 2004 and 2005. Thereafter,
the SDI rate will be based on funding needs for SDI and Paid
Family Leave. The taxable wage limit for 2004 is $68,829, increasing
to $79,418 for 2005.
Eligibility Requirements
An employee may file a claim with the Employment Development
Department for Paid Family Leave benefits for the following
reasons:
- To care for a seriously ill child, parent, spouse
or domestic partner. “Child” means a
biological, adopted or foster child, a stepchild, legal ward,
child of a domestic partner, or a person to whom the employee
stands in loco parentis. “Parent” means
a biological, foster, or adoptive parent, a stepparent, legal
guardian or other person who stood in loco parentis
to the employee when the employee was a child. It does not
include a mother- or father-in-law. To be “seriously
ill” means to have an illness, injury, impairment or
physical or mental condition that involves inpatient care
in a hospital, hospice or residential healthcare facility,
or continuing treatment or continuing supervision by a healthcare
provider.
- To bond with a new child after birth, or with a
minor child in connection with the adoption or foster care
placement of the child. Benefits are limited to bonding
during the first year after birth, adoption or foster care
placement.
In addition to satisfying the reasons above, an employee is
subject to the following requirements for filing a Paid Family
Leave claim:
- The employee must provide a medical certificate
upon filing a claim with EDD when the claim is based on caring
for a seriously ill family member. The certificate must include
details such as diagnosis, date of onset of the illness, probable
duration and the estimated time care is needed. It must also
state that the serious health condition warrants the participation
of the employee to provide care (which includes providing
psychological comfort and arranging third party care).
- Separate certification filed with the EDD is required
for leave associated with child bonding.
- There is a seven calendar day waiting period before
benefits are paid. The employer may require an employee to
take up to two weeks of earned but unused vacation leave prior
to receiving Paid Family Leave benefits. One week of this
vacation leave will be applied to the waiting period.
- An employee is not eligible for Paid Family Leave on any
day that another family member is able and available
to provide care for the same time period the employee is providing
care.
- An employee is ineligible for Paid Family Leave
if he or she is receiving SDI, Unemployment Insurance or Workers’
Compensation benefits.
- An employee who is entitled to leave under FMLA or CFRA
must take Paid Family Leave concurrently
with leave taken under those laws. As noted above, an employer
is not obligated to grant Paid Family Leave unless the employee
is entitled to take that time off as FMLA or CFRA leave.
Employers should keep in mind the following issues when navigating
this new leave opportunity with employees:
- Employers may not require employees to take all six weeks
of Paid Family Leave benefits at once. The law does not establish
a minimum number of hours, days or weeks that an employee
must take these benefits.
- Paid Family Leave is a benefit separate from FMLA and CFRA.
Unlike those laws, Paid Family Leave by itself neither protects
an employee’s job nor requires an employer to grant
time off to the employee.
- While employers may opt to require an employee to take up
to two weeks of earned but unused vacation leave, they are
not relieved of any collective bargaining duties they may
have with respect to vacation leave.
- Employers may not require employees to use sick leave instead
of vacation leave.
- Employees may file claims for benefits to care for a sick
parent who is outside California.
For
further information, contact:
This Employment Law Advisory is
a publication of the Employment Law Department of Davis Wright
Tremaine LLP. Our purpose in publishing this Advisory is to
inform our clients and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given
in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright
Tremaine LLP.
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