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Can Your Employer Penalize You for Taking Time Off for a Sick Child?

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.

How to Divide Parental Leave Under the CFRA

The California Family Rights Act (CFRA) allows eligible employees to take up to 12 weeks of non-paid protected leave during the first 12 months after the birth of a child, foster placement, or adoption completion. CFRA is vital for new parents to adjust to their new family life and bond with their new family members without worrying about losing their jobs or health benefits. 

Strategically using CFRA ensures that everyone has time and energy to be present during those early stages of child and family development in an impactful and positive way. Despite how important this time is, many parents are not aware of all of the rights CFRA secures them and the different ways they can combine and coordinate their time off. Parents creating an effective and balanced leave schedule is essential to kicking off a successful and bright future for their new family. 

Understanding Parental Leave Under the CFRA

Designed to cover a wide range of employees in California, an employee qualifies for CFRA if:

  • They work for an employer with five or more employees.
  • They have worked at least 1,250 hours in the past 12 months.
  • They have at least 12 months of service with their employer.

CFRA ensures new parents 12 weeks of unpaid, job-protected leave for child bonding and family development after birth, adoption, or foster placement. This leave can be taken during the first year after the child’s arrival. For birthing parents, it is important to note that CFRA is separate from Pregnancy Disability Leave (PDL). If a birthing parent is left disabled at any point during their pregnancy, they are entitled to both PDL (up to four months, depending on the severity of the disability) and CFRA.

While some employers allow pay continuation for employees using CFRA, for some or all of the 12 weeks, the act only requires 12 weeks of unpaid, job-protected leave. Even though employees are entitled to take that time off and are guaranteed the same job and title once they return to work, companies are not required to pay them. Employees who work at companies that decide not to pay those who use this 12-week leave can face financial stress, but there are ways to supplement any unpaid time. During CFRA leave, employees may be eligible for wage replacement benefits from the California Family Paid Leave (PFL) for up to eight weeks. Employees may need to use PTO, vacation time, sick leave, or Family and Medical Leave (FMLA) to supplement other weeks.

Coordinating Parental Leave Between Two Parents

When two parents are involved with a new family, they must coordinate their leave effectively. CFRA allows each parent to take their own, individual 12-week leave. Suppose both parents work for the same employer. In that case, however, the company may have policies to limit the amount of combined time taken by both parents. Employees should work with HR to understand how the company treats CFRA leave. 

Parents do not have to take the same period of leave, though. Alternating when parents use their leave can provide an extended period of care for the new child. Parents can take their 12 weeks at any point during the year after the birth, adoption, or foster placement, so they can have a combined 24 weeks of care, one taking their 12 weeks right away while the other takes their leave after the other returns to work. 

Another way to strategically leverage CFRA is to have parents switch off when they take leave. Both may want to take two weeks together right after the birth, adoption, or placement and then alternate their leaves monthly until they’ve used all of their 12 weeks. This rotational leave allows a parental presence to always be available to the child during the critical early stages of their life or adoption/foster transition. Switching up when parents are home together and when one is away while one says home can also help to establish different family dynamics. How parents use intermittent leave is dependent on what type of flexibility an employer provides to those using CFRA.

The best way to maximize the benefits of CFRA for the family depends on a few factors, such as the child’s development, employer flexibility, and work responsibilities. The first year of a child’s life, or the adjustment period for an adoption or foster placement, is a fragile time, and having a parent always available can smooth out the rough patches. Sudden health emergencies can also creep up, and the ability to be flexible with leave is essential. Flexibility depends on both the parents and employer. 

Parents should be prepared to change their CFRA plans to help with their child’s changing needs. Still, these plans may be limited based on the employer’s policies regarding how employees can use CFRA, such as a two-week minimum per use or the ability to use part-time leave. Working with the employer is imperative to ensure that your rights and your job are protected. Work responsibilities may also play a part in effectively dividing up CFRA. If specific projects or deadlines are known ahead of time, parents can be proactive in planning who uses leave when, which can also help with stress when a parent returns to work.

Legal Rights and Employer Compliance

Employers cannot refuse employees requesting CFRA leave if they are eligible, nor can they retaliate against employees who use it. Employees are entitled to take their full 12 weeks of leave without facing negative consequences, such as being demoted upon returning to work, receiving negative feedback for taking their full leave or losing their jobs entirely. Common CFRA violations employers commit include:

  • Wrongfully denying leave requests: An employer may try denying their employee leave when eligible, citing a number of reasons, including project needs, future deadlines, or impending company changes, which is against the law.
  • Pressuring employees to return early: An employer may pressure an employee to return from leave early to work on new projects, help meet deadlines, or cover duties for employees who left while they were away. They may also threaten the employee with negative reviews if they take their full leave.
  • Retaliating against workers who take their full leave: Employees may face new obstacles after returning to work as an employer’s way of retaliating against them, such as demoting the employee, passing them over for promotions, or eliminating their position altogether.

If an employee thinks their employer has violated CFRA rights through direct actions, unjust policies, or passive negligence, they should file a complaint with the California Civil Rights Department (CRD) or the U.S. Department of Labor. An employee should keep a written record of any resistance, retaliation, or other adverse response to CFRA use and consult with an experienced employment law attorney.

Tips for Negotiating Parental Leave With Employers

Though it is an employer’s responsibility to comply with CFRA and other employment laws, there are steps you can take to help avoid any stress or confusion when planning to take any form of leave. Communicating early with HR and managers allows plenty of time to make any necessary accommodations, set up coworkers for success, and create a specific coverage plan long before it is needed. Making sure your colleagues have everything they need while you’re gone can also relieve, creating a healthier environment for your new family.

HR partners will also know the company’s specific policies around CFRA. They can help you create a CFRA plan that best suits your family’s needs. Some companies may allow part-time leave instead of full-time, either taking afternoons off or working three days a week instead of five. This accommodation could allow extra care and bonding time beyond the first 12 weeks. Another option to which you may have access is working from home full- or part-time so you can multitask between work and taking care of your child.

Knowing your rights under CFRA and being able to cite what California law guarantees can help you assert yourself against any employer pushback. Keep written records of all communications and events regarding your leave, especially moments that infringe on your CFRA rights, and file a formal complaint with both HR and the CRC if necessary.

Professional Legal Counsel for CFRA Claims

Maximizing the benefits of CFRA and effectively dividing up leave between parents is vital for a family’s healthy growth and development. Doing so ensures proper bonding time for the family and less worrying for the parents. They don’t need to be concerned about keeping their job during those 12 weeks. They can intermittently return to work in order to lighten the workload when they are done with leave. Understanding the rights you receive from CFRA and any company policies pertaining to it will help you create a unique post-birth, adoption, and foster plan that best accommodates your family’s needs and does not leave your company without coverage. Doing so will also help you recognize when your rights are being violated and when to contact an experienced employment law firm, such as Le Clerc & Le Clerc, LLP, to ensure your rights are protected.

FMLA Turns 30: How Your Rights Have Changed

The federal Family and Medical Leave Act (FMLA) turned 30 in February 2023. This bill was a groundbreaking step for workers’ rights, but many argue it is no longer enough. Many legislators are advocating to expand the scope of the FMLA and providing workers with more options and security if they need to care for their families. 

While the FMLA remains the primary federal law providing workers the opportunity to take family leave, many states have implemented similar laws to address its flaws. In honor of the bill’s 30th anniversary, let’s explore the history of the FMLA, how California has improved it, and how your rights as a worker have expanded in the past three decades.

History of the FMLA

Today, a law like the FMLA seems like it makes sense. Many people take it for granted that established employees can take time off from work to recover from an illness, care for a family member, or welcome a new child to their family. However, there was a long journey before the bill was signed into law in 1993. 

Before its passage, workers had no protections if they needed to take a leave of absence. While employers could offer parental or family leave in their employment contracts or on a case-by-case basis, it was not required. As such, workers who needed to care for family often lost their jobs, and many struggled to return to the workforce afterward. 

That’s why proponents of the bill introduced the FMLA before Congress every year from 1984 to 1993. The bill was passed by Congress twice, in 1991 and 1992, but vetoed by then-president George H.W. Bush. There was strong pushback against the bill by corporate interests, which argued that allowing workers to take time off of work – even unpaid time – could hamstring businesses and hurt the economy. 

It wasn’t until President Clinton was elected that the bill was finally passed. In the three decades since, U.S. employees have used the bill more than 200 million times to take time away from work to care for their families without worrying about long-term unemployment. 

This has had an outsized effect on women and low-income families in particular. Women can better maintain their jobs after having children because they can take time to recover without risking future employment. Meanwhile, low-income workers have more freedom to care for their families without quitting their jobs. If it has affected the economy, it has been positive by keeping more people in work. 

Still, the FMLA is significantly less comprehensive than similar leave laws in countries like France, the U.K., and Spain. Many states have taken it upon themselves to improve on the FMLA to give workers more protection, safety, and security.

Improving on the FMLA: The California Family Rights Act

California’s main improvement on the FMLA is called the California Family Rights Act, or CFRA. This bill expands almost every element of the FMLA to cover more people and situations. Here’s how the two compare:

FactorsFMLACFRA
LengthUp to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefitsSame
EligibilityAny worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that timeSame
Reason for LeaveNew child or foster child brought into the family, a serious health condition of the employee, their child, spouse, or parent, or qualifying exigencies for the active military duty of the same.New child or foster child brought into the family, a serious health condition of the employee or a designated party, or qualifying exigencies for the active military duty of the employee or a parent, child, or spouse.
Covered EmployersAny employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agenciesAny employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies
ExemptionsEmployers may withhold FMLA leave to key employees: those who are among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.No “key employee” exemptions

Overall, the CFRA covers more people, offers fewer exceptions, and gives workers more freedom to care for their loved ones. 

Furthermore, California also offers the Paid Family Leave (PFL) program to supplement income for workers who take time off from work under the CFRA. In general, if a worker is eligible for CFRA, they are likely to be eligible for PFL as well. This allows California workers to take time off for pregnancy, new children, or a loved one’s illness without sacrificing all of their income. 

There is no equivalent federal program; people in states without the PFL program do not have a national alternative to cover their financial losses while taking unpaid leave. Federal advocates of expanding the FMLA are calling for this to change and for many elements of the CFRA to be adopted nationwide. However, this has not yet occurred.

Defending Your Rights Under the CFRA

While the FMLA still leaves much to be desired, California’s CFRA has closed many of the gaps. Your employer cannot deny it as long as you’re eligible for CFRA leave. If they do, you have the right to take legal action for your losses.At Le Clerc & Le Clerc, LLP, we specialize in helping workers like you defend your rights under the CFRA. If your employer has violated your right to leave under the bill, we can help. Learn more about how we can hold your employer accountable, fight for your job, and help you pursue unpaid wages by scheduling your consultation today.

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