Am I required to provide time off and pay an employee while he/she is on parental leave?
There is a lot of confusion about what an employer is obligated to provide to an employee who wants to take “family leave,” “parental leave,” “baby bonding” or “paternity leave.”
These are all common terms used by employees to request time off from work after the birth of a child, or placement of a child for adoption or foster care. Only employers with 50 or more employees are required to comply with the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) requirements of providing a leave of absence for baby bonding, continuing the employee’s group health benefits during the leave and returning the employee to his or her job at the expiration of the leave.
Employers are not required to pay the employee while on baby bonding leave under FMLA/CFRA. However, an employee may apply for Paid Family Leave (PFL) benefits through the California Employment Development Department (EDD) and receive a partial wage replacement while on leave.
San Francisco Ordinance
However, employers that fall under a newly adopted ordinance in San Francisco may have to pay eligible employees during baby bonding leave.
In 2016, the City of San Francisco adopted a new ordinance, known as the San Francisco Paid Parental Leave Ordinance (SF PPLO).
The PPLO requires covered employers to provide “supplemental compensation” to employees who are off work for baby bonding and are receiving PFL benefits. The required supplemental compensation is the difference between the amount of the PFL benefits the employee receives and the employee’s normal gross weekly wages so that employees receive up to 100% of their weekly wages, subject to a weekly maximum cap.
An employer is not required to pay the compensation during the one-week waiting period before PFL benefits begin, and an employer may, at its discretion, apply up to two weeks of the employee’s unused accrued vacation time to cover the cost of the supplemental compensation.
This law went into effect for employers of 50 or more employees on January 1, 2017; for employers of 35 or more employees it will go into effect on July 1, 2017; and for employers of 20 or more employees on January 1, 2018.
All employees of a company are counted to determine whether the company is a covered employer and all employees—whether full-time, part-time, temporary or seasonal—must be counted whether they work in San Francisco or not. Government entities are excluded.
In order for an employer to be required to pay this supplemental compensation an employee must satisfy all of the following requirements:
• Work for a covered employer for 180 days prior to the start of receiving California PFL benefits;
• Work at least 8 hours per week for the covered employer;
• Work in San Francisco for at least 40% of their weekly hours for a covered employer; and
• Apply for and receive California PFL benefits.
Covered employers should familiarize themselves with this new law so that they are in compliance.
The City has developed a useful website where employers may download the ordinance, the claim form, the required notice to be posted, view a slide webinar, see common questions and answers, etc. This information is available at sfgov.org.
Employers also may call the City’s Office of Labor Standards Enforcement at (415) 554-4190 with questions.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.