Nothing introduces surprises into your life quite like having a child. More often than not, those surprises are great, bringing copious amounts of joy to your family. Then there are the surprises that are less exciting, like sudden illnesses. Whether minor or serious, when part of your family is bedridden, you want to be home to manage as much of the unexpected chaos as you can. But what about your job? Can your employer penalize you for taking time off to care for your sick child?
California has several employee protections to aid with all the unexpected ups and downs of unpredictable family health conditions, such as the California Family Rights Act (CFRA), the Family and Medical Leave Act (FMLA), and California’s Kin Care Law. Understanding these laws is imperative for you to successfully tend to any family medical needs while maintaining your employee rights. If these rights are violated by your employer, whether via a wrongful termination or illegal retaliation, an experienced employee law attorney can help.
Why Parents Need Legal Protection When Caring for a Sick Child
Some health care is easy to plan for, like scheduled surgery or the birth of a child, but life can’t always be predictable. Sudden illness, chronic pain flare-ups, and all types of accidents happen, and you want to be available when your family needs you. Some employers may react poorly to unexpected leave, saying that you didn’t give enough notice or they can’t spare you right now with “the big deadline coming up.” By understanding your different options and your company’s policies before an emergency, you can quickly and correctly utilize all of your available leave and legally shield yourself from any negative feedback or retaliation.
California Family Rights Act (CFRA): What It Covers
CFRA requires employers with five or more employees to provide up to 12 weeks of protected job leave during a 12-month period for employees to either care for their own medical needs or those of their family. To qualify for CFRA, you must have worked for your employer for more than a year and have worked at least 1,250 hours during the previous 12 months. CFRA’s 12-week period covers caring for a “designated person” or “any person related by blood to the employee – such as the employee’s aunt, uncle, or cousin. A designated person can also be any person who is like family to the employee, such as the employee’s unmarried partner or best friend (when in a relationship equivalent to family).”
Though an employer is required to provide this time off and continue your benefits, they are not required to pay you when using CFRA. There are different types of paid disability you may qualify for through the state, such as California’s Paid Family Leave program or State Disability Insurance. Employers may also require you to support your leave with a medical certification issued by a healthcare provider. If using CFRA for planned medical needs, you should provide as much notice as possible, but in unforeseen circumstances, you must provide your employer with notice as soon as possible within 15 days after starting leave. What an employer may not do is retaliate against you for rightfully using CFRA. Forms of retaliation include negative employee reviews, demotions, denying promotion opportunities, or termination.
Family and Medical Leave Act (FMLA): Federal Protection for Parental Leave
FMLA, a federal employee protection used across the United States, is similar to CFRA but has some key differences. Employee qualifications are the same for both FMLA and CFRA and both provide 12 weeks of protected leave within a 12-month period. However, FMLA is only required of employers with 50 or more employees rather than five or more. While FMLA does cover time off to take care of your child, “designated persons” are restricted to a spouse, child, or parent.
You can use both FMLA and CFRA during a 12-month period. CFRA is more lenient in what it covers, so it is suggested to use that first, and then if the care for your family extends past the initial 12 weeks of CFRA and is still covered by FMLA, you can take protected job leave for up to 24 weeks. With FMLA, employers may require more documentation, such as a second or third medical opinion or periodic re-certification of the medical needs.
Kin Care Law in California: Using Sick Leave for a Child’s Illness
California’s Kin Care Law (Labor Code § 233) provides you with another way to take time off to care for your child. Employers who provide sick leave must allow employees to use the amount of sick time accrued during six months of working to attend to family health concerns. Under Kin Care, family includes your child, spouse, domestic partner, parent, grandparents, grandchild, or sibling.
While helpful if you have available sick leave and time needed for care is short, Kin Care is attached to leave that is already available to you, while CFRA and FMLA are additional leaves outside of what your employer provides. Kin Care is an excellent option when:
- No advance notice can be given
- The care period is predicted to be a short time frame
- If your company, you, or your reason for needing leave does not qualify for CFRA or FMLA
For unexpected incidents like car accidents, injuries, or chronic pain flare-ups, Kin Care allows you to quickly attend to your family’s medical needs.
Can an Employer Penalize You for Taking Time Off for a Sick Child?
Employers cannot retaliate or penalize employees who use CFRA, FMLA, or Kin Care. Retaliatory or penalizing actions could be:
- Demotion
- Termination
- Disciplinary actions
- Job reinstatement to a lower position
If an employer retaliates because of your leave, there are legal paths that can provide you with financial compensation and job reinstatement.
These legal paths are available if you take a protected absence, such as leave under CFRA or other California laws. If an absence is unprotected, though, like taking CFRA for reasons other than its intended use, an employer may have ways of penalizing you. Types of unprotected absences include:
- Not providing enough notice when capable of doing so
- Not providing medical certification
- Not using CFRA, FMLA, or Kin Care for protected uses (newborn, adoption, or foster bonding, care for qualifying family members (or military members) with serious health conditions, or qualifying incidents of domestic abuse, sexual assault, and stalking)
- Using more than half your sick leave to care for family under Kin Care
Before taking leave, read through company policies to fully understand what an employer expects of you when taking leave, and work through any confusing policies with HR or with legal aid.
When Your Time Off Is Not Protected: Know the Limits
Legal protection might not apply to companies too small to qualify for CFRA or FMLA. Other times you may not be protected are when you:
- Extend your leave beyond the 12 weeks or outside of the 12-month period.
- Use leave for unprotected scenarios.
- Don’t provide adequate notice (in both foreseen and unforeseen circumstances) or medical documentation.
- Have an employee status that does not qualify for leave, such as being an independent contractor or not working the 12 months and 1,250 hours.
You may have limited legal options if you use unprotected leave.
What to Do If You Face Retaliation for Caring for a Sick Child
Signs you may be facing illegal retaliation range from termination or a pay cut to negative social consequences, such as being passed over for promotions, negative feedback, or exclusion from projects or events. If you feel any actions taken against you are in retaliation to using your protected leave, gather information regarding your leave, document any evidence, including verbal and electronic conversations, report concerns to HR, and consult an attorney. If you want to take legal action, you can file a complaint with the California Civil Rights Department (CRD) or U.S. Department of Labor. With proper counsel, potential remedies could include reinstatement, back pay, and emotional distress damages.
How a California Employment Attorney Can Help
Seeking legal guidance at the first sign or relation or in the event of a wrongful termination is invaluable. An employment lawyer can assess the legitimacy of your case, help gather evidence, and represent you in a claim or lawsuit, providing knowledge and experience to secure you your best outcome. At Le Clerc & Le Clerc, LLP, we only represent employees and are dedicated to protecting employee rights. We have years of experience representing parents in cases about FMLA, CFRA, and other types of leave, as well as workplace compensation, disability, and discrimination cases.
When you need time off to care for your sick child, CFRA, FMLA, and Kin Care provide legal job protection. While employers may not penalize you for protected leave, understanding the scope and limits of these leave types is crucial to ensure a smooth leave and return to work. If you are unsure if you qualify for medical leave or feel your employer has illegally retaliated against your leave use, contact Le Clerc & Le Clerc, LLP for a confidential consultation.