California employees have a variety of rights to take time off, including pregnancy leave, disability leave, time off for temporary medical conditions, and even time off to take care of ill family members. Some of these rights do not exist under Federal law, and many employers – particularly those who are not based in California – may not even understand what leave rights their employees have.
If you are being denied leave and your employer says it is because you are not entitled to it, your employer may be wrong . Similarly, if you have been fired because you needed the leave your employer said you were not entitled to, you may have been wrongfully terminated .
One of the most common forms of leave is under the “Family Medical Leave Act.” You have a right to take leave time off if your employer meets certain requirements and if you have been with your employer for a certain amount of time and have worked a certain amount of hours. (The specific requirements are that the employer must have more than 50 employees within a 75 mile radius of the employee’s work-place, and the employee must have worked there for at least a year and have 1,250 hours of service).
A lot of companies, including a lot of human resources personnel, think that this is the onlytype of medical leave. It isn’t.
In California, this is just not true. In California, every employer who has five or more employees must give pregnancy leave to female employees from Day 1 of employment.
In fact, that leave time can be even more than the employee gets under FMLA. Under the California law, a pregnant employee is allowed to take up to six weeks off on account of childbirth or if she is having some sort of difficulty with her pregnancy. And if the pregnancy or the childbirth or the related conditions are “disabling” (meaning she needs more time off), she can have up to four months off. This is a whole month more than she is entitled to under FMLA.
You, as an employee, also have a right to “stack” or “combine” these leaves. So if you are entitled to both FMLA and pregnancy leave, you are looking at a time period you can have off of up to seven months.
Again, many employers simply do not know your rights. It is not hard to imagine this scenario: An HR person is trying to figure out how much time off an employee needs. That HR person finds this law, the Family Medical Leave Act. The Family Medical Leave Act tells her that under that law the employee (you) is entitled to only three months off. The human resources person thinks he has figured out the answer. The problem is, he has only figured out half of the answer. There is a whole other law there that gives you, as a pregnant employee, right to time off, either when FMLA does not apply, or even in addition to FMLA.
Although this is not really “leave”, you should also note that if you are pregnant and if this limits you somewhat physically, you have a right to accommodation of your pregnancy and/or a less-stressful assignment. These rights are discussed elsewhere on the site.
People who suffer from a disability (which is a very broad term and can pretty much mean any ongoing condition) are entitled to what we call “accommodations.” This means that, even if you are not entitled to FMLA leave (either because you or your employer do not meet the qualifications or because you have already used it up), you are still entitled to have your disability accommodated. And the law is very clear that if you need time off because of your disability, the time off, itself, is the “accommodation.”
Again, it is not hard to see how this can come into play when an employer simply does not understand all of your rights. For example, the human resources person calculates the amount of time off a person is allowed under FMLA and tells the employee (you) that she has to return at the end of her 12-week FMLA leave. And maybe the employee (you) just needs another couple of weeks. The employer, through the HR person, thinks that they do not have to provide this extension or additional time off. So, therefore, the employee is terminated.
This would also be a violation of the law, because the only accommodation that the employee needed was a short extension of the FMLA leave. Again, the employer thought they had found “the answer,” but they really had only found half of it.
Cases like this happen all of the time and the Law Offices of Jeremy Pasternak has handled many such cases in which the employer simply did not understand the employee’s legal rights (or only understood some of them).
California also has a special law that says that if you get sick time from your employer, you are entitled to use that time to take care of an ill family member. This is true even if you don’t have any sick time left. You are entitled to use the amount of sick time that you would have accrued in the following six months for this purpose.
Human resources personnel also make mistakes on this one all of the time. Often, they just assume that you are only entitled to use your sick time for your own illness. But, under California law, that just is not true and you do have those rights.
If you or a family member have been the victim of domestic violence, sexual assault or stalking, you have the right to take a certain amount of time off.
Again, this is another right that your employer may not know about (and may even hold against you).
Feel free to call us for a free consultation.
As long as you provide reasonable notice to your employer, you also have a right to take time off for jury duty. The employer is not required to pay you for this, but your employer cannot fire you because you have been summoned to jury duty. And the employer cannot instruct you to try and get “off” the jury.
You also have the right to take time off to attend treatment programs for alcoholism and drug addiction.
This is another right that employees have that employers often overlook.
It is also worth noting that, to the extent mistakes on the job may have been made because of an addiction, employers can, in the right circumstances, be required to essentially “forgive” those mistakes, as long as the employee seems likely not to repeat them (because, for example, they have undergone treatment). In other words, something which could legitimately gotten you fired may, in the right circumstances, not be used as a basis for your termination if it was caused by your addition.
Employees are also entitled to take time off for this purpose. Again, a lot of employers make mistakes on this, believing that when an employee volunteers to take time off, that means the employee is not protected. This is simply not the case. The law encourages you to do this type of good deed for another and protects your employment when you do. An employee who is fired because he or she has taken time off to donate an organ or bone marrow likely has a case for wrongful termination.
There are some limits on the amount of time off that can be taken, but you certainly do have this right.
Employees who need to take time off for military service are also entitled to be reinstated to their former positions. If it is just occasional leave (for example, if you are in the reserves), these short absences are also permitted and protected. An employer cannot fire you for this type of service to your Country.
Employees who volunteer as fire fighters, reserve peace officers, and emergency personnel also have rights under California law.
If you perform this type of volunteer service, you have a right to take time off for training and for service, as long as your employer has 50 or more employees. You cannot be terminated for taking this time off for these purposes.
Employees also have a right to take time off as may be needed to observe their own religious practices. This is another right that is often overlooked by employers, because it creates an inconvenience for their business. But the fact of the matter is that most of those inconveniences simply have to be tolerated.
For example, you might, as part of your religious practices, observe the Sabbath as Saturday (whereas the majority of people in the United States who take the Sabbath as a day of rest do so on Sunday). That may be inconvenient for your employer, particularly if your employer is open on weekends. But that does not mean that you do not have the right. You still do have that right.
For example, the Law Offices of Jeremy Pasternak has in the past represented individuals who sold cars, but observed the Sabbath on Saturdays. Car sales are obviously a very big deal on the weekends. On more than one occasion, we have had a client who was fired because of a refusal to work on Saturdays. Because that refusal was based on a religious belief, and because the employee was fired as a result, this was wrongful termination and our client was entitled to (and received) compensation.
This is not an exhaustive or total list of the leave rights you have. If you questions about your situation, whether you are still with your employer or not, please feel free to contact the Law Offices of Jeremy Pasternak for a free consultation.