I am an employer who has multiple locations throughout the country but do not have 50 employees at any one site. We have a medical leave of absence policy offering 12 weeks of unpaid medical leave (which is eligible for SDI) to employees with bonafide medical conditions. I am looking for a form that employees can use to request this unpaid medical leave that will be considered legal in California. Also can I ask the employee to see their SDI application and SDI award and doctor certification?
The FMLA and the California Family Rights Act (“CFRA” is the FMLA analogous law in California) are very similar, although there are a number of important differences. California Employer Advisors can access our Special Report on FMLA/CFRA. In addition, the California Department of Fair Employment and Housing has a comparison chart of the state and federal laws.
To be eligible for a CFRA leave, an employee must be either a full-time or part-time employee working in California, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles of the employee’s work site. If you do not have 50 or more employees working within 75 miles of one another, then your employees are not entitled to CFRA leave. If this is the case, then there’s no particular leave request form that you must use in California. So long as whatever form you use is fair and nondiscriminatory, there’s no other law that requires a particular form. Note, though, that under CFRA, employers are not permitted to ask for a specific diagnosis from the treating physician. It is probably wise that employers not do so on their non-CFRA forms as well. Our Special Report on FMLA/CFRA highlights special California leave related requirements.
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws,
covers everything you need to know to stay in compliance with both
state and federal law in one of the trickiest areas of compliance for
even the most experienced HR professional. Learn the rules for
pregnancy and parental leaves, medical exams and certifications,
intermittent leaves, required notices, and more.
There are also several other laws to be aware of:
- California Paid Family Leave. Under California’s Paid Family Leave law, regardless of the size of the employer, any employee who pays into SDI is eligible to request paid family leave (this is partial wage replacement from the state, and is a state subsidized program). Get more information about California Paid Family Leave.
- KinCare. If you offer paid sick leave (not FMLA/CFRA) benefits to your California employees, they must be able to use that paid sick leave to care for eligible dependents and immediate family. KinCare is covered by California Labor Code Sec. 233. If you have employees working in the City and County of San Francisco, you must provide those employees with mandatory paid sick leave, earned as 1 hour of paid leave for every 30 hours worked. Find out more about San Francisco’s mandatory paid sick leave.
- Pregnancy Disability Leave. California’s Pregnancy Disability Leave Law applies to employers with 5 or more employees.
Employers can request copies of employee SDI award forms and SDI Medical Certifications in order to comply with state laws regarding the offset of paid sick leave or other wages earned.
—Jessica Christensen, Esq.
California Employer Advisor
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