Time off - California

Court appearances (effective until 1/1/25)

Employers may not discharge, discriminate against, or retaliate against an employee who is a victim of specified offenses for taking time off from work to appear in court to be heard at any proceeding including postarrest release decisions, plea, sentencing, postconviction release decision, or in which any right of the victim is at issue.

The protections apply to individuals who have suffered direct or threatened physical, psychological, or financial harm as a result of a commission or attempted commission of a crime or delinquent act. A victim also includes a person’s spouse, parent, child, sibling, or guardian.

The list of crimes includes murder and solicitation of murder; kidnapping; carjacking; rape, stalking, and domestic violence; sex offenses; DUI vehicular manslaughter and other vehicular deaths; child abuse that caused significant harm or death; assault resulting in the death of a child under 8 years old; and the abuse of an elder or dependent adult.

Employees are to provide reasonable advance notice of the intention to take time off, when feasible.

When an unscheduled absence occurs, the employer is prohibited from taking an action against the employee if the employee, within a reasonable time after the absence, provides a certification. Certification may be in the form of the following:

• Police report;
• Court order;
• Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse.

Employees may use available vacation, personal leave, or comp time for time taken off under this law.

Disability insurance

Disability insurance (DI or SDI) provides partial wage replacement to eligible workers who are unable to work because of a disability. “Disability” is defined as any mental or physical illness or injury which prevents employees from performing their regular or customary work. Employees must be unable to do their work for at least eight consecutive days, and must be employed or actively looking for work at the time they become disabled. They also must have earned at least $300 from which SDI deductions were withheld during a previous period, and be under the care and treatment of a licensed doctor or accredited religious practitioner during the first eight days of their disability. Like PFL, employees must apply for benefits.

Domestic violence/crime leave (effective until 1/1/25)

All California employers must allow leave to employees:

• Who are victims of domestic violence,
• Who are victims of sexual assault,
• Who are victims of stalking,
• Who are victims of a crime or offense that caused physical injury or that caused mental injury and a threat of physical injury, or
• Whose immediate family member died as a direct result of a crime.

The term “crime” includes misdemeanors or felony, and it does not matter whether anyone is arrested, prosecuted, or convicted in relation to the crime

Employees may take this leave to attend to any of the following:

• To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking;
• To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking;
• To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or
• To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking including temporary or permanent relocation.

Employers are to provide a notice to employees of their domestic violence leave rights. The notice is to be provided upon hire and to other employees upon request. The Labor Commissioner is expected to develop a model notice and make it available to employers. You are not required to use the model notice, but whatever you do use needs to be substantially similar to the model notice.

Employees must provide reasonable advance notice of the intention to take time off, unless the advance notice is not feasible. When an unscheduled absence occurs, employers may not take any action against employees if, within a reasonable time after the absence, employees provide a certification.

Certification must be sufficient in the form of any of the following:

• A police report indicating that the employee was a victim;
• A court order protecting or separating the employee from the perpetrator;
• Documentation from a licensed medical professional, domestic violence counselor, a sexual assault counselor, victim advocate, licensed health care provider, or counselor that the employee was undergoing treatment or receiving services for physical or mental injuries or abuse resulting in victimization from the crime or abuse; or
• Any other form of documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a qualifying reason.

Employers may request recertification of an employee’s status as a victim six months after the date of the previous certification.

Employees may use available vacation, personal leave, or compensatory time off for leave under this law.

All employers are to provide reasonable accommodations for victims of domestic violence, sexual assault, or stalking when such a request is for the safety of the victim while at work. Reasonable accommodations may include implementing the following safety measures or procedures:

• Transfer;
• Reassignment;
• Modified schedule;
• Changed work telephone;
• Changed workstation;
• Installed lock;
• Assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace; or
• Adjusted job structure, workplace facility, or work requirement.

Employers may not discharge, discriminate, or retaliate against employees who are victims of crime or abuse for taking leave.

Employees are to let employers know of the need for an accommodation because of the employee’s status as a victim. Employees are also to provide, upon request, a written statement certifying that the accommodation is for a purpose under this law. The employer may also request certification from an employee requesting an accommodation demonstrating the employee’s status as a victim.

Employers are to engage in an interactive process with the employee to identify effective reasonable accommodations. Employers are not required to provide an accommodation that poses an undue hardship.

Employees are to notify the employer if they no longer need an accommodation.

In addition to the above requirements, employers with 25 or more employees must provide leave for employees for the following reasons:

• To seek medical attention for injuries caused by crime or abuse.
• To obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of the crime or abuse.
• To obtain psychological counseling or mental health services related to an experience of crime or abuse.
• To participate in safety planning and take other actions to increase safety from future crime or abuse, including temporary or permanent relocation.

Family military leave

Employers with 25 or more employees must allow a qualified employee to take up to ten days of unpaid leave during a qualified leave period. Employers must not retaliate against a qualified employee for requesting or taking such leave.

“Qualified employee” means a person who satisfies all of the following:

• Is the spouse of a qualified member;
• Performs service for an employer for an average of 20 or more hours per week, but does not include an independent contractor;
• Provides the qualified employer with notice, within two business days of receiving official notice that the qualified member will be on leave from deployment, of his or her intention to take leave; and
• Submits written documentation to the employer certifying that the qualified member will be on leave from deployment during the time of the leave requested.

“Qualified member” means a person who is any of the following:

• A member of the Armed Forces of the United States who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States;
• A member of the National Guard who has been deployed during a period of military conflict; or
• A member of the Reserves who has been deployed during a period of military conflict.

“Qualified leave period” means the period during which the qualified member is on leave from deployment during a period of military conflict. This reason for leave does not run concurrent with other forms of leave.

Jury Duty

An employer may not discriminate against an employee for taking time off to serve as a juror at an inquest or trial or when the employee is a victim of a crime and is required to appear as a witness. An employer may not discriminate against an employee for taking time off to obtain relief as a result of domestic violence. The employee must give reasonable notice to the employer. It is not a requirement to compensate employees for time off to serve or juries or to appear as a witness.

The same law protects employees who require time off to comply with a subpoena or other court order as a witness in any judicial proceeding. (California Labor Code §230)

Leave for Civil Air Patrol volunteers

Members of the California Wing of the all-volunteer Civil Air Patrol are entitled to up to ten days per year of unpaid leave when they are called up for an emergency by the U.S. Air Force, the California Emergency Management Agency, or any subdivision of the state with the authority to declare an emergency. Such emergencies are those that involve the saving or protection of life and property.

Covered employers are those with 15 or more employees. Leave under this law must be provided above and beyond leave provided under other laws — Civil Air Patrol leave cannot run concurrent with other leave.

Eligible employees are those who have worked for the employer for at least a 90-day period immediately preceding leave.

Employees are to provide as much notice as possible of the leave, and include the intended dates upon which the leave would begin and end.

Employers may require certification from the proper Civil Air Patrol authority to verify the eligibility of the employee for the leave requested or taken. Leave may be denied if the employee fails to provide the required certification.

Employers cannot require employees to exhaust all accrued paid leave.

Employers and employees may negotiate for the employer to maintain the employee benefits at the expense of the employer during the leave period.

At the end of leave, employees are to be restored to the position they held when leave began or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment, unless the employee is not restored because of conditions unrelated to the exercise of the leave rights by the employee.

Military leave

Under federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides reemployment rights for veterans, and members of the National Guard and National Reserve, following qualifying military service.

Under California law, any employee who is a member of the reserve corps of the armed forces of the United States, the National Guard, or the National Militia is entitled to a temporary leave while engaged in military duty ordered for purposes of military training, drills, encampment, naval cruises, special duty, or like activity. (Military and Veterans Code §§394, 394.5)

New parent leave - effective until January 1, 2021

Employers with 20 - 49 employees need to provide unpaid, job-protected leave to employees who become parents.

Employees are eligible for the leave if they have worked at least 12 months for the employer, worked at least 1,250 hours in the 12 months before leave begins, and work at a site with at least 20 company employees within 75 miles.

Employees may take up to 12 weeks of bonding leave in the 12 months from the birth or placement of a child. They are entitled to use accrued paid time off during the otherwise unpaid leave.

During the leave, the employee’s group health care coverage is to be maintained.

If both parents work the employer, they are entitled to a combined total of 12 weeks of leave. Employers may, but are not required to, grant leave to both parents simultaneously.

Employers are to provide a guarantee of employment to the employee on or before the leave begins.

Paid Family Leave

In addition to the CFRA, California has the Paid Family Leave (PFL) law that entitles employees who paid into the State Disability Insurance Program to up to eight weeks of partial pay per year while taking time off from work to bond with a new minor child by birth, adoption, or foster care; or to care for a seriously ill family member. Family members include children, spouses, domestic partners, parents, parents-in-law, grandparents, grandchildren, and siblings.

Effective July 1, 2028, family members include a designated person. A designated person means any care recipient related by blood or whose association with the individual is the equivalent of a family relationship.

When employees request PFL for the first time to care for a designated person, they must identify the designated person and attest to how the individual is related by blood to the designated person, or how the individual’s association with the designated person is the equivalent of a family relationship.

Employees may also receive PFL benefits for leave taken for a qualifying exigency related to a “qualifying military event” arising out of the overseas military deployment of the employee’s family member. This would be for the covered active duty or call to covered active duty of the employee’s spouse, domestic partner, child, or parent in the Armed Forces of the U. S.

Employees are eligible to receive family temporary disability insurance benefits equal to 1/7 of their weekly benefit amount for each full day they are unable to work. The maximum payment is eight times the employee’s weekly benefit amount.

Effective January 1, 2025, employers may not require that employees use vacation leave before accessing Paid Family Leave benefits.

The PFL does not generally provide for job-protection or reinstatement rights; rather, it provides for income replacement while an employee is on leave.

Paid sick leave

California employers must provide paid sick leave (PSL) per the Healthy Workplace, Healthy Families Act of 2014 (AB 1522, Chapter 317; SB616 enacted 10/4/2023).

Employees who works in California for 30 days or more within a year from the beginning of employment are entitled to paid sick days.

Employees begin to accrue paid sick leave upon hire. They accrue paid sick days at the rate of not less than one hour per every 30 hours worked. Employees may use paid sick days beginning on the 90^th day of employment.

You may use a method that allows PSL to accrue at a rate other than one hour for every 30 hours worked, but must meet certain benchmarks to make that alternative accrual effective. If you use an alternative accrual rate, you must ensure that employees accrue 24 hours or three days of sick leave by the 120^th day of the year and 40 hours or five days by the 200^th day.

These benchmarks do not apply if you are using an accrual rate of one hour paid sick leave for every 30 worked. These benchmarks will also be difficult to meet for part-time employees, so the CA Department of Industrial Relations believes employers will use alternative accrual rates for full-time employees, not part-time employees.

You may otherwise front load the PSL, giving the full amount of leave (five days or 40 hours, whichever is more) at the beginning of a designated 12-month period.

Effective until January 1, 2024, accrued but unused sick days carry over to the following year of employment, but you may cap an employee’s use of paid sick days to 24 hours or three days in each year of employment. The law also allows you to limit an employee’s total accrued paid sick leave to no more than 48 hours or six days.

Effective January 1, 2024, accrued but unused sick days carry over to the following year of employment, but you may cap an employee’s use of paid sick days to 40 hours or five days in each year of employment. Employees are eligible to earn the 40 hours/5 days within six months of employment. The law also allows you to limit an employee’s total accrued paid sick leave to no more than 80 hours or ten days.

Employees are to provide notice of the need for paid sick leave, but this may be verbal or in writing. The law does not include provisions for you to request documentation supporting the need for paid sick leave.

You may set a reasonable minimum increment of paid sick leave, not to exceed two hours.

The rate of pay is to be the employee’s hourly wage. If the employee had different rates in the 90 days before taking leave, the rate of pay is to be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay period of the prior 90 days.

Employees may take paid sick leave for the following reasons:

• Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. Family members include child, parent, spouse, registered domestic partner, grandparent, grandchild, sibling, and designated person.
• For an employee who is a victim:
  • To serve as required by law on an inquest jury or trial jury.
  • To appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.
  • To obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
  • Effective January 1, 2026, to attend judicial proceedings related to a crime, including, but not limited to, any delinquency proceeding, a postarrest release decision, plea, sentencing, postconviction release decision, or any proceeding where a right of that person is an issue.

Effective January 1, 2026, “victims” include a person against whom any crime has been committed. This includes felonies, vehicular manslaughter while intoxicated, child abuse, elder or dependent adult abuse, murder solicitation, hit-and-run death or injury, felony DUI, and sexual assault.

Family members include a child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling.

As of January 1, 2023, family members include a designated person, which is a person identified by the employee at the time leave is requested. You may limit an employee to one designated person per 12-month period for paid sick days.

Effective January 1, 2025, employers must provide paid sick days to agricultural employees who work outside and meet the eligibility criteria to avoid smoke, heat, or flooding conditions created by a local or state emergency. This paid sick leave would be seen as necessary for preventive care.

You are not required to pay out unused paid sick leave upon termination of employment. If, however, an employee separates from employment and is rehired within one year, previously accrued and unused paid sick days must be reinstated upon rehire.

If you already give employees paid sick days that provide at least the same level of benefit than does the Healthy Workplace, Healthy Families Act, you need not provide more.

You must post a notice describing the provisions and give written notice to new hires certain information including paid sick leave rights. You must also provide an employee with written notices indicating the amount of paid sick leave available on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date.

Leave under this law does not run concurrent with leave under other laws.

You must retain related records, such as the hours worked and paid sick days accrued and used by an employee, for at least three years.

Finally, a “paid time off” (PTO) plan or policy does not allow an employer to circumvent the law with respect to vacations. Where an employer replaces separate arrangements for vacation and sick leave with a program granting employees a certain number of “paid days off” each year that can be used for any purpose, including vacation and sick leave, employees have an absolute right to take these days off.

The California Division of Labor Standards Enforcement (DLSE) takes the position that such a program is subject to the same rules as other vacation policies. Thus, for example, the “paid time off” is earned on a day-by-day basis, vested paid time off days cannot be forfeited, the number of earned and accrued paid time off days can be capped, and if an employee has earned and accrued paid time off days that have not be used at the time the employment relationship ends, the employee must be paid for these days.

Paid time off (PTO)

Employers, are expected to follow any established policies or past practices regarding other paid time off. State laws do not generally require vacation or PTO. In many cases, if a vacation policy does not explicitly state that vacation will not be paid out when an employee leaves the company, the company may be required to pay out any earned vacation that hasn’t been used.

There is no requirement in California to provide vacation time. However, if an employer does have an established policy, practice, or agreement for paid vacation, then there are certain obligations. Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation.

Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination, regardless of the reason for the termination. Unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. An vacation plan may provide for the earning of vacation benefits on a day-by-day, by the week, by the pay period, or some other period basis.

The employer does have the right to control when vacation can be taken and the amount of vacation that may be taken at any particular time. Although California prohibits “use it or lose it” vacation policies, an employer can stipulate that vacation which was earned but not used at the end of the year will simply be paid out.

An employer can place a reasonable cap on vacation that prevents an employee from earning over a certain amount of hours. A “cap” simply places a limit on the amount of vacation that can accrue; that is, once a certain level or amount of accrued vacation is earned but not taken, no further vacation or vacation pay accrues until the balance falls below the cap. The time periods involved for taking vacation must, of course, be reasonable.

In defining “reasonable” in this context, the Labor Commissioner has taken the position that a worker must have at least nine months after accrual of the vacation to take the vacation before a cap is effective. This “reasonable” time allows an employee to take fully vested vacation at times convenient to both the employee and employer without forcing an employer to accrue a large vacation pay (or time) liability.

In contrast to how vacation pay may be earned, the calculation of vacation pay for terminating employees (a quit, discharge, death, end of contract, etc.) who have earned and accrued and unused vacation must be prorated on a daily basis and must be paid at the final rate of pay. For example, an employee who is entitled to three weeks of annual vacation (15 work days per year x 8 hours/day = 120 hours per year) who quits on August 7 (the 219th day of the year) without having taken any vacation, who has no vacation carry-over from prior years, and whose final rate of pay is $13.00 per hour, would be entitled to $936.00 vacation pay upon separation, calculated as follows:

219 days, 365 days/year = 60%

60% of 120 hours vacation = 72 hours vacation earned but not taken

72 hours x $13.00/hour = $936.00 vacation pay due at separation.

Pregnancy disability leave

California also has the Pregnancy Disability Leave (PDL) law.

Employers with five or more employees are covered by the PDL.

Employees need not meet any eligibilty criteria; they simply must need time off for a disability related to pregnancy, childbirth, or a related medical condition.

Employees may take up to four months (17.3 weeks or 693 hours) of unpaid, job-protected leave for such a disability. If you provide more than four months of leave for other types of temporary disability, you must provide the same amount of leave to employees who are disabled by pregnancy, childbirth, or related medical conditions.

A pregnancy-related disability can include prenatal or postnatal care, severe morning sickness, doctor-ordered bed rest, childbirth and recovery, loss or end of pregnancy, and so on.

You may require employees to use accrued sick leave while on unpaid PDL. You may not, however, require employees to use vacation or other accrued time off during PDL. Employees may choose to use vacation or other accrued time off. Employees may also qualify for state SDI wage remplacement.

Employees are to provide at least 30 days’ notice if possible. You may require medical certification supporting the need for PDL.

Employees may take PDL intermittently, on a reduced schedule, or continuously, as needed. PDL may be taken before and after birth for any time the employee is unable to work.

You must provide group healthcare coverage while an employee is on pregnancy disability leave.

Employees are to be returned to their same position. In some situations, employees may be reinstated to a comparable position.

PDL may not be used concurrently with CFRA, as the CFRA does not include pregnancy as a serious health condition. PDL may, however, be used concurrently with FMLA. Therefore, an employee could take four months of PDL while disabled followed by 12 weeks of CFRA for bonding.

You must post a notice of PDL rights in the workplace, and if you have employee handbooks, PDL information must be included there, as well.

Sick leave (Kin Care)

Under California law, if an employer provides sick leave for employees, it must permit an employee to use accrued sick leave for certain reasons. The employee is entitled to use not less than the amount of sick leave the employee would accrue in six months, per calendar year. Conditions placed on sick leave usage for use by an employee also applies to sick leave used for other qualifying reasons.

The reasons employees are entitled to use Kin Care mirror those of the Healthy Workplaces, Healthy Families Act (paid sick leave). The term “family member” also reflects the definition under paid sick leave, including children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings.

Effective January 1, 2021, employees taking California paid sick leave may designate the leave either for kin care, or for the employee’s own health condition, or for obtaining relief if the employee is a victim of domestic violence, sexual assault, or stalking. the Employees have the right to designate sick leave as kin care or not. Therefore, employers are to ask employees how the leave is to be designated.

Under the law, “sick leave” is defined as “accrued increments of compensated leave.” A problem arose for employers who provide an unlimited quantity of paid sick leave. The California Supreme Court ruled that the Kin Care provisions do not apply to paid sick leave policies that provide for an uncapped number of compensated days off. The employer would need to provide an identified quantity of paid sick leave for the law to apply. Employers may still provide unlimited paid sick leave; however, Kin Care wouldn’t apply.

Time off for donating organs or bone marrow

The Michelle Maykin Memorial Donation Protection Act requires employers with 15 or more employees to allow eligible employees to take paid time off to donate an organ or bone marrow.

To be eligible, employees must have worked at least 90 days for the employer.

For organ donation, employees may take up to 30 days paid leave in a one-year period. Employees may take an additional 30 days unpaid leave in any one-year period.

For bone marrow donation, employees are entitled to paid leave of up to five business days in any one-year period.

The one-year period is measured from the date the leave begins and consists of 12 consecutive months. Leave may be taken in one or more periods; it need not be taken all at once.

Employees must provide written verification that they are a donor and that there is a medical necessity for the donation. Such absence is not considered a break in service for the purpose of the right to salary adjustments, sick leave, vacation, annual leave, or seniority. Group health care coverage is to be continued during such leave.

Employers may require employees to take up to five days of earned but unused sick or vacation leave or paid time off for bone marrow donation and up to two weeks of earned but unused sick or vacation leave or paid time off for organ donation. Leave taken cannot be treated as a break in service in regard to salary adjustments, sick leave, annual leave, seniority, or paid time off.

Group health coverage must be maintained during this type of leave.

Leave for donations must not be counted concurrently with the CFRA or FMLA.

Employers must restore employees to the position held when the leave began or to a position with equivalent seniority, benefits, pay, and other terms and conditions of employment. Employees may bring a civil action to enforce these provisions.

Time off for school/day care

Employers with 25 or more employees working at the same location must not discriminate against employees who are parents, guardians, stepparents, foster parents, grandparents, or someone who stands in loco parentis of one or more children of the age to attend kindergarten, grades 1 through 12, or a licensed child care provider. These employees may take up to 40 hours of leave each year for the following:

• Find, enroll, or reenroll a child in a school or with a licensed child care provider, or to participate in activities of the school or provider. This may be limited to eight hours in any calendar month.
• Address a child care provider or school emergency.

Employees, prior to taking the time off, must give reasonable notice to the employer of the absence.

Violent crime leave (effective until 1/1/25)

Employers must allow an employee who is a victim of a crime, an immediate family member of a victim, a registered domestic partner of a victim, or the child of a registered domestic partner of a victim, job-protected time off to attend judicial proceedings related to that crime.

A victim is someone against whom a violent felony, a serious felony, or a felony proscribing theft or embezzlement has been committed.

The employee must provide a copy of the responsible agency’s notice of each scheduled proceeding, unless advance notice is not feasible. If not feasible to provide advance notice, the employee is to provide, within a reasonable time after the absence, documentation evidencing the judicial proceeding.

Employees may choose to substitute accrued paid time off.

Employers are to keep related records confidential.

Volunteer firefighters, reserve peace officers, and emergency rescue personnel

Employers with at least 50 employees must allow employees who perform duties as volunteer firefighters, reserve peace officers, or emergency rescue personnel to take up to 14 days of leave per calendar year. This includes disaster medical response entities sponsored or requested by the state. Employees who are health care providers must notify their employer at the time they become designated as emergency rescue personnel and when they are notified that they will be deployed as a result of that designation. The leave may be used to engage in firefighting, law enforcement, or emergency rescue training.

Voting

For statewide elections, California Election Code Section 14000 allows an employee sufficient time to vote. The time off for voting must be at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift. Deductions of pay are allowed for periods of more than two hours. Employee must give two working days notice that time off for voting is needed.

This law does not force employers to allow time off to workers whose work schedule allows them sufficient time to vote.

See http://www.sos.ca.gov/elections/