Expansion of California Parental Leave Rights

Governor Signs Bill Expanding Parental Leave Rights for Employees of Small Businesses

By Mark Wasserman and Mazen Khatib

Governor Jerry Brown has signed the New Parent Leave Act (“PLA”), extending baby-bonding leave with job protection rights and continuation of pre-existing health insurance to a broad segment of California employees. Employers with twenty (20) or more employees within 75 miles of a qualified employee’s worksite must provide “12 weeks of [unpaid] parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.” A qualified employee is one with twelve (12) months of service to the employer and 1,250 hours worked in the previous year. This leave is unpaid but the employee is entitled to use any accrued vacation pay, sick pay or other paid time off during the period of parental leave. Moreover, during the protected period of the leave, the employer must continue its payments for employee health coverage under a group health plan.  The law goes into effect on January 1, 2018.

This law does not change anything for businesses with 50 or more employees as they were already required to provide such baby-bonding leave under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). This law also does not apply to California employers that employ fewer than twenty employees. PLA is estimated to impact 16 percent of California’s labor force.

Employers who violate the PLA expose themselves to costly litigation. Potential remedies include compensatory damages, injunctive relief, punitive damages and attorney’s fees. The PLA does provide that the Department of Fair Employment and Housing (DFEH) must set up a pilot mediation program that allows employers who receive a right-to-sue notice to request that all parties participate in a DFEH mediation. If such a request is made, the employee cannot bring a civil action until the mediation is “complete.” Employers should not rely on this provision, however, as a means to achieve early resolution to what otherwise might be costly litigation; a mediation will be deemed “complete” if an employee simply elects to not participate in mediation. Additionally, this provision sunsets on January 1, 2020.

Employers should bear in mind that the PLA confers rights that are in addition to those already established by the Pregnancy Disability Leave (“PDL”) provisions of the Fair Employment and Housing Act. The PDL provides employees with disabilities related to pregnancy, childbirth or related medical conditions with up to four months of leave. The PLA will provide qualified employees with the opportunity to take an additional leave of absence for baby-bonding.

ASK MSK

Q: Can California employees who take PLA receive paid family leave benefits?

A: Yes. California Paid Family Leave (PFL), which has been around since 2004, is an income replacement benefit (similar to State Disability Insurance) that provides income replacement for up to six weeks to new mothers and fathers who take time off to bond with their new children or to care for a sick child, spouse, or parent. PFL replaces 55% of an employee’s usual pay up to a maximum of $1,173 per week. PFL is funded by payroll deductions and does not provide job protection. The program is administered by the Employee Development Department.

Q: What should California employers do to comply with the new leave law?

A: California employers with between twenty and fifty employees within a 75-mile radius should develop policies and procedures to handle employee requests for baby-bonding leaves of absence, outlining the circumstances required to qualify for a requested leave. Employers can reduce the likelihood and the viability of any potential claims by consulting with legal counsel and Human Resources professionals to ensure their policies and procedures comply with the new law.  California employers with 50 or more employees within a 75-mile radius should already have these policies in place in order to comply with the CFRA and the federal FMLA.

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