Understanding Paternity Leave in California
Paternity leave, in short, is a period during which a father is entitled to leave from the workplace, within which he is expected to care for his newborn or adoptive child. California, home to a rich tradition of family-focused anti-discrimination legislation, has created one of the country’s most comprehensive paternity leave programs.
In California, paternity leave is governed by both federal and state law. The state’s unpaid family leave law, CFRA, applies to employers with at least 50 employees within a 75-mile radius of the worksite. Covered California employers must provide eligible employees with up to 12 weeks of leave each year in order to attend to the birth or adoption of a child. The statute also permits leave if the employee must care for a child who is suffering from a serious health condition. However, keep in mind that both the birth and care of a child provision are gender-neutral. That is , mothers as well as fathers may use CFRA leave for the birth or care of a child.
The federal Family and Medical Leave Act (FMLA) provides a similar type of leave protection. The FMLA helps protect employees from discrimination for taking time off under the provisions of the Act. Covered employers must provide eligible employees with up to 12 weeks of unpaid medical leave each year. The FMLA, like the CFRA, may be used to tend to a newborn child’s needs.
In addition to CFRA and FMLA protections, California has also created the California Paid Family Leave (PFL) program. The program entitles fathers to leave in connection with the birth of a child who is less than a year old. The PFL also allows fathers to care for a child recently placed with him through adoption. To receive benefits under the PFL program, fathers must be covered employees of the state. Under the California Paid Family Leave Act, the state’s Employment Development Department administers the PFL program.
Criteria for Qualifying for Paternity Leave
To be eligible for paid leave through the PFL program, fathers must be the employee the child is being taken care of and either be the biological parent or the legally recognized parent of the child. To qualify for this program, an employee must have a job with:
• A covered employer
• For more than 12 months
• And worked a minimum of 1,250 hours during the 12 months before the start of PFL leave
Employers qualify for the PFL program if they are subject to the California Unemployment Insurance Code and employ at least one employee. Accordingly, in California, all employers, large and small, are covered under the PFL program.
It is important to note that eligibility requirements for PFL differ from those for CFRA or FMLA leave. Employees who have worked for less than a year or less than 1,250 hours in the past 12 months may be eligible for PFL. Although, in practical terms, you may not be able to take a lengthy paternity leave if you have not worked at the company for at least a year.
Length of Paternity Leave and Entitlement
California law does not explicitly provide for a specified amount of paternity leave, as it does for maternity leave. That said, under California employment laws and the federal Family and Medical Leave Act (FMLA), fathers are entitled to the same amount and kinds of paternity leave benefits as mothers. Whether or not an expectation exists that paternity leave would be paid or unpaid leave would be available would depend on the employer’s usual practice and other policies.
For example, any company with at least 50 employees is required under the FMLA to allow new parents 12 weeks of job-protected paternity leave. But this does not mean that they must receive 12 weeks of paid leave, because sometimes employers prefer to either provide short-term disability for the period or allow employees to use their earned sick and vacation leaves during that time.
Entitlements to paternity leave in California include additional benefits under the California Paid Family Leave program. This program provides up to six weeks of partial wage replacement to all new parents who are taking time off work to bond with their new child. Since Paid Family Leave benefits are paid through the state’s payroll tax system, which is funded through employees’ TI/State Disability Ins. tax deductions, employers need not participate in its funding.
Paternity leave benefits under the California Paid Family Leave program include the following:
Paternity leave benefits using Paid Family Leave are paid at about 55 percent of a person’s wages, up to a maximum amount. Examples of how this would work are as follows:
Comparing the duration of paternity leave and benefits with maternity benefits, nearly all new mothers are eligible for at least six weeks of maternity leave benefits under California’s Paid Family Leave, whereas fathers are entitled to between six and eight weeks, depending on whether the mother has a vaginal or cesarean delivery. Additionally, the 12 weeks of mandatory job-protected leave available to both parents under the FMLA is far above the six weeks of benefits available to fathers under the Paid Family Leave program.
Requesting Paternity Leave
The application process for paternity leave in California generally requires employees to provide their employer with written notice of their intent to take leave. If the employer is AFMLA covered, an employee may request AFMLA leave according to the usual employer policies for family care leave. If the employee’s need is foreseeable, sufficient notice should be given in advance to allow an employer to make other arrangements. If the need for leave is not foreseeable, no more than 30 calendar days’ notice before the leave is to begin is required.
For non-AFMLA covered employers, such as employers with fewer than 50 employees, married parents planning to take paternity leave may simply notify their employer of their plans and offer to share their leave. In the absence of any written policy or agreement, employers must honor this request.
Employers may request documentation or certification from a qualified health care provider for all leaves taken for the birth care or adoption of a child. The employee must provide a written response to an employer’s request for certification within 15 calendar days after the date of the request. However, if at the time of the request, it is not practicable to provide a written response to the request for certification by the next business day, the employee must respond orally within 16 calendar days.
Employer Obligations and Legal Compliance
California law imposes certain obligations on employers. Among those is the obligation that, except for the smallest employers, the employer must post a notice to its employees of their rights under the law. Further, most employers must provide written notice of employee’s rights to the employee at the time of hire. In addition, a covered employer, must provide to each employee, as part of or in addition to its handbook, policy manual or similar document, a policy on family care and medical leave. If none is provided then the employer is to be deemed to have a policy which provides that the employee can take up to 12 work weeks off per year for family care or medical leave with no condition, limitations or cost beyond the loss of wages for not working.
The notice to employees shall inform employees of their rights and obligations under the law. The notice shall be in a format approved by the Department of Fair Employment and Housing (DFEH). The employer shall make a copy of the DFEH poster on family care and medical leave available to its employees or post it where employees will be likely to read it. This can be accomplished by printing it from the DFEH website.
The law does not require an employer to have a policy that provides paid leave. Therefore the employer can provide additional leave within its policies or may establish a policy which provides that is unpaid.
Under the new law the employer is not required to give notice HCPs when it denies an employee’s request for baby bonding leave. The employee is only required to give the employer advance notice whenever foreseeable. However , an employer may want to provide such notice, especially in order to ensure that if it denied employee’s request for leave that it cannot be deemed to have violated the employee’s rights under the law.
An employer cannot deny an employee’s request for baby bonding leave if the employee gives advance notice and does not exceed the permissible leave. Under an existing regulation this meant that the employee had to be given up to 12 weeks off, regardless of whether it had been paid or unpaid. The regulations also stated that any failure to pay during the leave would not give rise to liability under the law.
Upon passage of the legislation the existing regulations are void and new regulations are to be adopted regarding the question of leave being paid or unpaid. Until such time that the new regulations become effective, the courts will have to interpret these provisions. This could present litigation risk claiming that although the employee was not being paid that there was a violation of the law. Of course as stated above, the employer can provide a paid leave, and in doing so would avoid such risk.
Issues and Legal Safeguards
While many employers offer paid paternity leave, many do not, leaving fathers to rely on California’s temporary disability and paid family leave benefits. Because benefits are generally available only after a covered disability, such as a serious medical condition, the birth or adoption of a child, the death of a family member or military service, the amount of time fathers can take off to be with their newborn or adoptive child will depend on how soon after birth or adoption these milestones occur in relation to father’s employment.
For example, in the case of an adoptive father who takes paternity leave immediately, he may require up to 16 weeks off because he has no time remaining before his employment commences. However, in the case of a father who takes paternity leave a year later, once his baby is age 1 and already walking and talking, he may need to take only 4 weeks off because he still has time remaining under temporary disability benefits even after the 16 weeks under paid family leave.
Although paid family leave is only available for up to eight weeks in a 12-month period, it may be available intermittently for a father who is caring for a child while the mother is at work (unless financial stability or business safety requires otherwise). A father with job-protected leave under FMLA/CFRA may take that leave intermittently for bonding time with his newborn or adopted child. Statistically, though, the most common time period during which fathers take paternity leave is during the first 8-12 weeks of life after birth or adoption.
There is no guarantee, however, that any of the foregoing entitlements will be available to fathers. Even if a father has worked enough to be eligible for temporary disability benefits and has the requisite coverage and there is no waiting period, some insurance companies may require that a father undergo a physician’s examination. In that case, if the examining physician finds that father is not disabled, and concludes that father is "on leave to care for his child," the insurance company may deny benefits and provide a claim rejection letter. Likewise, a father may request paid family leave benefits, subsequebt to or coincident with temporary disability benefits, only to have the employment development department in California deny the claim, stating that the employee is not "wounded" and his child is not a "combat veteran for whom the father must care."
Employers are equally subject to the legal protections afforded by California and federal laws for employees who take paternity leave. For example, a pregnant employee may not be discriminated against because she exercised her right to pregnancy disability leave and/or pregnancy-related leave. Likewise, there are laws that also prohibit retaliation of an employee who takes familial caregiving leaves of absence. Employers who unlawfully retaliate may be liable for damages, including back pay, reinstatement, other economic losses incurred, emotional distress damages, and punitive damages.
In addition, California law permits an employee who has been discriminated against or harassed, or whose family or property has been injured or destroyed, as a direct result of unlawful retaliation, to sue and recover actual damages, including nominal damages, pain and suffering, lost wages and benefits, medical expenses, job reinstatement, promotion, and punitive damages.
California and federal laws contain strict criminal and civil penalties for employers and supervisors who discriminate or retaliate against employees because they have exercised their rights under California or federal employment law.
While paternity leave may be "nice to have" from an employer’s perspective, it is a legally protected activity to which fathers are entitled. Your Poppies’ Age Law, Inc. advises fathers as well as employers and human resource representatives about paternity leave laws in California so that employers and employees are playing by the rules.
Recent Legislation and Anticipated Changes
"There have already been several recent changes to paternity leave laws in California. For example, in 2004, California passed Senate Bill 1661, which extended pregnancy and parental leave rights to same-sex domestic partners.
Even more recently, in October 2011, SB 299 increased the 2003 limits to the State Disability Insurance benefits for leave taken under the California Family Rights Act (CFRA) or the New Parent Leave Act (NPLA) and payments received under the Paid Family Leave (PFL) program to a maximum of $1,000, and eliminated the former $50 withholding requirement that applied to PFL.
Despite these changes, however, paternity leave laws in California may be about to change once more. For example, California legislators have introduced bills that would require most businesses in the state to provide at least 12 weeks of guaranteed maternity leave annually to workers, similar to the Federal Family Medical Leave Act.
These proposed bills were inspired by preliminary U.S. Census data that the Economic Policy Institute, a non-partisan think tank in Washington D.C., released showing that California is lagging behind many other developed nations in paid family leave."
Conclusion: Supporting Paternity Leave
The law in California provides for at least some paid leave for new parents. The guarantee of time off for bonding or medical recovery is one of the most important protections available to workers in the country, and the time off should be used. It’s amazing how many people go back to work early and try to prove that they’re superhuman or something.
The truth is that your employer has an interest in you being at work so that you don’t quit. They pay for your benefits while you’re out, they have to find someone else to do your job while you’re gone, and it’s just a lot of unnecessary hassle for them to deal with. It’s very possible that the leadership at your company doesn’t even care for you to come back early, and that’s a huge relief after the baby is born. You get to rest! You get to be a parent! Your company pays you to do it!
And once you get back to work, you can be the awesome worker they know you are, and start racking up new FMLA hours again, and then go do the leave thing all over again.
A lot of companies offer supplemental leaves that go above and beyond the law. If you have the opportunity, take them. California in particular is very happy to see its new parents supported and rested, and often encourages companies to give supplemental pay during parental leave.
For parents in small businesses or smaller firms or companies, the experience of leave may be different because they’re less likely to have a policy at all. A 50-person company does not have the dedicated HR team that a company with 500+ employees does. But if you haven’t seen the provisions in writing somewhere or had them explained to you, it’s time to ask .
It’s also important to understand that many employers do not offer leave that matches up to the best practices standards for most workers. We’ve actually seen employers where the paternity leave was longer than maternity leave; some of this also depends on the issues with recovery from childbirth like C-section healing.
It’s not uncommon to see discussions of what a "good" company does in terms of supporting working parents. This is not a place for competition with other parents over what your employer provides. What does your company do? How do you feel about the amount of time you are offered? Is it enough for you? This is one type of support for new parents.
Advocacy for paternity leave is a great way to go, especially if you feel confident that the company should change. Sign a petition, talk to your coworkers, engage with management as is appropriate to your workplace. Being open and honest will help to avoid any retaliation based on your views.
It’s also important to know about resource groups for parents in the workplace. Baby showers are more welcome now than ever, so if your coworkers want to throw one, let them. It might help you all bond!
When you advocate to your HR department for more parental leave or better parental leave, you are first establishing a baseline — find out what the company currently offers. Then you find out about your rights under local, state, and federal laws. Finally, you have to talk to your company to find out whether they negotiate or have any flexibility at all in their policies. We aren’t here to advocate for company policies; we advocate for worker’s rights. Because the provisions of the law vary, we recommend that you meet with an attorney to discuss your options.