How can we accommodate an employee’s request for additional time off to care for her son when she has just returned from pregnancy disability leave (PDL)?
The answer to that question depends on whether the employee is eligible for Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA) leave.
If your company is covered under FMLA and CFRA, then you may use those leave laws to accommodate the employee’s request, provided she is eligible for the leave and has time available per the allocation of 12 weeks use during the preceding 12 months.
Many employers not covered by FMLA/CFRA opt to provide a personal time off policy to cover these types of absences as well. Consult with counsel to determine the policy that works best for your organization.
If the employee was eligible for FMLA when she went out on the PDL, then you would run FMLA with PDL. At the end of the PDL, when she is released to return to work, she may still have FMLA time remaining that you would then run concurrently with the 12 weeks of CFRA leave that she is entitled to take after her PDL.
If the employee was not eligible for FMLA when she went out on the pregnancy leave, but is now eligible because she has either completed her 1 year of employment with you or has now worked the 1,250 hours during the 12 months before her request, then she is eligible for the additional leave under CFRA.
(Remember, the time off work on a leave, such as pregnancy leave, still counts toward her 1 year of employment.)
California Family Rights Act
If the employee has already used all of her CFRA time for baby bonding, then she is not eligible for another leave until such time as your FMLA policy dictates that she would be eligible for another leave.
If she used only a portion of the CFRA time for baby bonding, then she has the remaining time that she may use for this purpose.
For example, if she used 6 weeks for baby bonding, then she has another 6 weeks available.
If she does not have any time remaining under FMLA or CFRA, then you would allow her to use any paid sick leave, kin care or paid time off that she would have available. After that, you would look to see if you have a personal leave policy in your employee handbook that she could use or whether by past practice you have granted other employees time off for a similar situation.
ADA Not Applicable
Because the time off request relates to the care of a child, you would not look at the Americans with Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA) reasonable accommodation requirements, which apply only to employees.
For further questions in this area, contact the Helpline.
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 hrcalifornia.com.