Common Sense Advice And Uncommon Legal Results

New Proposals for Expanding Paid Parental Leave in California

by | May 21, 2019 | Employment Law |

As part of his budget proposals in January, California Governor Gavin Newsom announced support for a change in state law that would allow new parents to take six months of parental leave while receiving partial wage replacement. Families could allocate the time to one parent, or split the time between two parents, or between a single parent and another family member. Ann O’Leary, the governor’s chief of staff who is a “leading force behind the proposal,” voiced concern about the potential impact of one employee utilizing all six months of leave, stating that it would be too onerous on employers and instead supporting dividing the leave time for a baby between some combination of parents or other relatives.

By prioritizing a six-month period during which newborns would get family care-as opposed to a precise amount of leave for a worker-Newsom is reframing paid leave as a health-and-economic benefit for children and families.

There is much discussion in the media about how the expanded leave would be paid for – by taxes on employees, employers or taxpayers generally, or some other source.

According to CALmatters, bills are popping up already in the legislature on this theme. In addition, the governor is putting together a task force to examine the proposal.

What is the law now? The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both require certain covered employers (usually with 50 or more local employees) to provide qualified employees with up to 12 weeks of unpaid leave to bond with a new child (or care for a seriously ill family member). California law also requires employers of 25 or more employees to provide bonding leave.

The California Pregnancy Disability Leave (PDL) allows up to four months of unpaid leave with job protection for pregnancy- or birth-related disability for mothers working for employers with at least five employees. This applies to many employers not covered by the FMLA or CFRA.

Of course, any employer could choose to provide more generous benefits privately. In some cases, a union-negotiated contract may ensure more generous benefits or paid sick leave may fill the gap between partial pay under a leave benefit and full pay. An employer may require an employee to use up to two weeks of earned vacation time before PFL kicks in.

Notably, none of these leaves are paid leave, except as provided by state programs funded by payroll taxes. These programs allow a covered biological mother to take up to six weeks of public disability insurance leave for the birth (eight weeks for a cesarean-section) plus six weeks of family leave benefits at partial pay under the Paid Family Leave (PFL) program. Covered adoptive and foster parents are also eligible for PFL. While the PFL does not protect a parent’s job while on leave, if the parent can take FMLA or CFRA concurrently with a PFL leave, those laws provide job and health insurance protection.

Local family leave benefits

There are several localities currently seeking to augment the state paid family leave programs, both in California and elsewhere. According to NBC Los Angeles, the Los Angeles City Council is considering a proposal that would require covered employers in the city to finance the pay gap between the partial pay provided by state benefits and complete wage coverage for eligible workers. Reportedly, there could be an “exemption or risk pool for small businesses and nonprofits.”

San Francisco’s Board of Supervisors also recently passed a new ordinance requiring employers to provide “supplemental compensation” to employees who work in San Francisco and who take time off for new child bonding, making San Francisco the first city to require such paid parental leave.

New York additionally recently passed a law providing wage replacement benefits to individuals who take family leave. Similar legislation is also pending in Connecticut, Massachusetts, and Washington, D.C. These laws continue the recent trend of mandating paid leave to employees that began with mandatory paid sick leave laws, which have passed in 28 jurisdictions at the state, county or city level.[1]

Legal counsel

As legislation and laws relating to paid parental leave change, it is important to stay up to date on compliance standards and procedures. Every Northern California employer of any size and type should develop a working relationship with an attorney who can explain which of these leave laws apply to the employer’s business and how to comply. The employment lawyer can keep the employer apprised of changes in the law and assist with developing employee manuals and internal processes and procedures.

[1] National Law Review, California’s Increased Paid Family Leave Benefits and San Francisco’s Paid Parental Leave Ordinance. (June 2, 2016)