I have a question on Maternity Leave time. Our employee’s wife is having a baby. Our Policy Manual does not
specifically cover maternity leave. We have Personal Time, Sick Time, and Personal Time, which this employee could use. Are we required to offer Maternity Leave for a spouse (our employee). Do we fall into the Family Medical Leave Act (FMLA)? Note—we are a company of 50 employees.
Thank you for contacting California Employer Advisor. We appreciate hearing from you. Please understand that we cannot offer you specific legal advice here. However, we believe the following information will be helpful to you.
The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both apply to employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. An employer with exactly 50 employees must comply with both the FMLA and CFRA.
In addition, if an employer has 40 or more regular employees, then the employer’s temporary or leased employees count toward the 50 employee requirement.
A employer covered by FMLA/CFRA must grant an eligible employee (whether male or female) up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- the birth or care of a newborn, or the placement of a child for adoption or foster care; or
- to care for an immediate family member (spouse, child, or parent, but not parent-in-law; it’s wise to also consider registered domestic partners to be immediate family members because they are covered under
CFRA) with a serious health condition; or - to take medical leave when the employee is unable to work because of his or her own serious health condition.
Thus, an eligible male employee is entitled to FMLA/CFRA leave to care for the birth of a child. Further, if the employee’s pregnant spouse has a serious health condition caused by or related to her pregnancy, the male employee is entitled to leave to care for his ill spouse.
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.
To be eligible for FMLA/CFRA benefits, an employee must:
- work for a covered employer; and
- have worked for the employer for at least 12 months, which includes time spent working for you as a leased or temporary employee; and
- have worked at least 1,250 hours over the prior 12 months (about 24 hours per week); and
- work at a location where at least 50 employees are employed by the employer within 75 miles.
- Employers can usually require an employee to use accrued vacation or other paid time off (including sick leave) as part of his or her family leave.
The rules regarding FLMA and CFRA leave are more numerous and complex than what we’ve described here. If you subscribe to the online version of California Employer Advisor, you can access our Special Report on FMLA and CFRA leave. If you only subscribe to the print version of the newsletter, you can either upgrade your subscription to access our online employer resource database, or order a copy of our “Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act” by calling us at (800) 695-7178.
Your employee may also be interested in applying for Paid Family Leave, which is a program run and funded (meaning, the state provides the money) by the California Employment Development Department (EDD) that provides employee’s with partial-wage replacement if the employee takes leave to care for a newborn child, and is available to both new mothers and new fathers.
You can also get more information about California Paid Family Leave on the EDD website.
—Jessica Christensen, Esq.
California Employer Advisor