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Wage and Hour Division (WHD)

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Federal vs. California Family and Medical Leave Laws

SPECIAL NOTE: On September 23, 2002, the governor signed legislation that will allow employees to take partially paid family leave beginning after July 1, 2004. This paid family leave program will allow workers to take up to six weeks off to care for a newborn, a newly adopted child, or ill family member. Under this new law, employees will be eligible to receive 55 percent of their wages during their absence, up to a maximum of $728.00 per week. These contributions will begin in January 2004. Unlike the unpaid family leave program that exists under the California Family Rights Act, all employers are covered by this legislation, not just those with 50 or more employees. However, also unlike the unpaid family leave program, businesses with under 50 employees are not required to hold a job for a worker who goes on paid family leave.




Employer Covered

Private Employers of 50 or more Employees in at least 20 weeks of the current or preceding year

Public agencies, including state, local, and Federal Employers

Local education agencies covered under special provisions

Anyone who directly employs 50 or more Employees

The state and any political or civil subdivision of the state and cities

No special provision for education agencies

Employees Eligible

Worked for Employer for at least 12 months - which need not be consecutive; worked at least 1,250 hours for Employer during 12 months preceding leave; and employed at Employer worksite with 50 or more Employees or within 75 miles of Employer worksites with a total of 50 or more Employees

Similar to Federal provision, including worksite proviso

Leave Amount

Up to a total of 12 weeks during a 12-month period; however, leave for birth, adoption, foster care, or to care for a parent with a serious health condition must be shared by spouses working for same Employer

Similar to Federal provision

Under separate statute, State Employees may receive up to 12-months leave for pregnancy, childbirth, or adoption, or care for newborn

No requirement that spouses share leave. Under separate statute, employers are required to provide a female employee affected by pregnancy, childbirth, or related medical condition the same benefits as provided employees on temporary disability (for a period of 6 weeks or less). An employee also is entitled to take pregnancy leave for a reasonable period of time not to exceed 4 months.

Type of Leave

Unpaid leave for birth, placement of child for adoption or foster care, to provide care for Employee's own parent (including individuals who exercise parental responsibility under state law), child under 18 or a dependant adult child, or spouse with serious health condition, or Employee's own serious health condition

Similar to Federal provision

Serious Health Condition

Illness, injury, impairment, or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice, or residential medical-care facility; or, continuing treatment by a health care provider involving a period of incapacity: (1) requiring absence of more than 3 consecutive calendar days from work, school, or other activities; (2) due to a chronic or long-term condition for which treatment may be ineffective; (3) absences to receive multiple treatments (including recovery periods) for a condition that if left untreated likely would result in incapacity of more than 3 days; or (4) due to any incapacity related to pregnancy or for prenatal care

Similar to Federal provision


Health Care Provider

Doctors of medicine or osteopathy authorized to practice medicine or surgery; podiatrists, dentists, clinical psychologists, clinical social workers, optometrists, chiropractors (limited to manual manipulation of spine to correct subluxation shown to exist by x-ray), nurse practitioners, and nurse-midwives, if authorized to practice under State law and consistent with the scope of their authorization; Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, MA; any provider so recognized by the Employer or its group health plan's benefits manager; and any health provider listed above who practices and is authorized to practice in a country other than the United States

Medical physician, surgeon, or osteopathic physician certified by California or licensed in another jurisdiction

Intermittent Leave

Permitted for serious health condition when medically necessary. Not permitted for care of newborn or new placement by adoption or foster care unless Employer agrees

Leave may be taken in one or more periods not to exceed 12 weeks

Substitution of Paid Leave

Employees may elect or Employers may require accrued paid leave to be substituted in some cases. No limits on substituting paid vacation or personal leave. An Employee may not substitute paid sick, medical, or family leave for any situation not covered by any Employers' leave plan

For family care and medical leave, Employee may elect, or Employer may require, substitution of accrued vacation leave or other accrued time off or other paid or unpaid time off negotiated with the Employer

For Employee's own serious health condition (but not other purposes unless the Employer and Employee agree), Employee may use accrued sick leave

Reinstatement Rights

Must be restored to same position or one equivalent to it in all benefits and other terms and conditions of employment

Similar to Federal provision

Key Employee Exception

Limited exception for salaried Employees if among highest paid 10%, within 75 miles of worksites, restoration would lead to grievous economic harm to Employer, and other conditions met

Similar to Federal provision

Maintenance of Health Benefits During Leave

Health insurance must be continued under same conditions as prior to leave

Similar to Federal provision

Leave Requests

To be made by Employee at least 30 days prior to date leave is to begin where need is known in advance or, where not foreseeable, as soon as practicable

If due to a planned medical treatment or for intermittent leave, the Employee, subject to health care provider's approval, shall make a reasonable effort to schedule it in a way that does not unduly disrupt Employer's operation

If need for leave is foreseeable, Employee shall provide reasonable advance notice

Similar to Federal provision

Medical Certification May Be Required by Employer for:

Request for leave because of serious health condition

To demonstrate Employee's fitness to return to work from medical leave where Employer has a uniformly applied practice or policy to require such certification

Request for leave because of serious health condition

Employee's fitness to return to work from medical leave as long as practice of requesting a certificate is uniformly applied

Executive, Administrative, and Professional Employees

Such individuals are entitled to FMLA benefits. However, their use of FMLA leave does not change their status under the Fair Labor Standards Act (FLSA), i.e., an Employer does not lose its exemption from the FLSA's minimum wage and overtime requirements.

No specific provision