Time Off Work
Table of Contents
- Employees have rights to paid time off in certain circumstances.
- Paid Sick Leave (PSL)
- Paid Vacation
- Paid Time Off (PTO)
- Paid Holidays
- Voting Leave
- Employees have rights to unpaid time off for medical or family-medical reasons.
- Family Medical Leave (FMLA/CFRA)
- Pregnancy Disability Leave (PDL)
- Reasonable Accommodation Disability Leave (ADA/FEHA)
- Leave Interaction (FMLA/CFRA, PDL, ADA/FEHA)
- Alcohol & Drug Rehabilitation Leave
- Employees have the right to unpaid time off rights in certain situations not related to family or family-medical issues.
- Jury Duty and Witness Duty Leave
- Military Service Leave
- School Appearance and Activity Leave
- Volunteer Civil Service Leave
- Crime and Domestic Violence Victim Leave
- Mandatory Days Off
Employees have rights to paid time off in certain circumstances.
Paid Sick Leave (PSL)
- California’s Healthy Workplaces, Healthy Families Act of 2014 requires employers to provide a set amount of paid sick leave to employees working in California. Labor Code §§ 245-249.
- While the law establishes minimum requirements, employers have the option to provide more sick time off than the minimum required under the Act.
- Local ordinances might also provide paid sick leave benefits. It applies to all employers, big and small, with only a few limited exceptions.
- Paid sick leave is a form of protected time off. But, unlike vacation, paid sick leave is not considered a form of wages.
- Paid sick leave must be paid at the “regular rate of pay,” meaning that bonuses, commissions, and other non-hourly payment must be included. Labor Code §§ 201, 202, 204, 233, 246.
- Vacation are benefits that employers can choose to offer their employees. But, once offered, vacation is considered a form of wages that employees earn as they work. So, while the law does not require employers to provide vacation, if they do offer vacation, employers must follow specific rules:
- Vacation is considered wages. They must be earned and vested as the employee works. People v. Bishopp, 56 Cal.App.3d Supp 8, 11 (1976); In re Wil-Low Cafeterias, 111 F.2d 429, 432 (2nd Cir. 1940); Suastez v. Plastic Dress-Up, Co., 31 Cal.3d 777, 781 (1982). For example, if the accrual rate set for vacation is two work weeks (ten days) per year, after six months the employee will have earned one work week (five days) of vacation. DLSE Enforcement Manual § 15.1.3.
- Employers must determine at what point the employee begins to earn vacation. For example, employers might set a policy that an employee cannot begin to earn vacation until after the first month, three months or six months of employment. The accrual rate cannot decelerate. Employers cannot designate an accrual rate of two weeks after six months of employment and two weeks after the following year. This plan creates a deceleration of accrual. The employee earns no vacation during the first six months, accrues vacation at the rate of 1.66 days per month during the second six months of employment, then accrues 0.833 days per month during the second year.
- Vacation accrues as earned and cannot be forfeited even when the employment relationship ends, regardless of the reason. After an employee earns vacation, employers cannot take it away. California courts and the Labor Code prohibit a “use it or lose it” policy, in which employees lose earned vacation if it is not taken by a specific time. Employers cannot require employees to forfeit accrued vacation for any reason. Employers may place a reasonable cap on vacation. Suastez v. Plastic Dress-Up Co., 31 Cal.3d 777, 782-784 (1982); Labor Code § 227.3; Boothby v. Atlas Mechanical, 6 Cal.App.4th 1595, 1601 (1992).
- While employers can place a reasonable cap on vacation accrual, they must give employees a reasonable amount of time to use vacation before they stop accruing time. DLSE Enforcement Manual § 15.1.4; DLSE Opinion Letter 1991.01.07, 1993.08.18.
- Employers can choose to offer your employees the option to cash out their vacation benefits. Employers can offer this option on an as needed basis or allow it only at certain times, such as at the end of the year. Employers can require employees to accept pay each year for vacation time that they accrued but did not take, instead of carrying vacation time over from one year to the next. The cash out of vacation time must be at the employee’s current pay rate. DLSE Opinion Letter 1994.03.08.
- Accrued vacation is paid out at termination at the employee’s final rate of pay, not at the rate in effect when the employee accrued the vacation. Labor Code § 227.3; Suastez v. Plastic Dress-Up Co., 31 Cal.3d 777, 782-784 (1982).
Paid Time Off (PTO)
- Paid time off is typically a phrase that refers to a combined bucket of paid sick leave and paid vacation. The employee can use PTO for personal reasons, vacation or sick leave. The rules relating to vacation also apply to PTO:
- PTO is a form of wages that vests as the employee renders service
- PTO is considered part of the “employment contract” between you and the employee
- No use it or lose it policies allowed
- Reasonable cap on PTO accrual allowed
- Pay of accrued PTO at termination
- Partial-day absence rules for exempt employees
- Employers are not required to offer employees time off for holidays, nor are they required to pay for time for holidays granted. Courts interpret the policy of giving a paid day off as a contract to do so. Therefore, employers must make up the lost benefit to the employee in some manner.
- Exempt employees must be paid if they are ready, willing and able to work and no work is available, such as on a holiday when the company is shut down. Exempt employees who perform any work during the workweek in which a holiday occurs must be paid their full weekly salary, whether or not they work on the holiday.
- Employers who offer employees floating holidays (sometimes called personal days) as a benefit must treat them the same as earned vacation time they will be vested, and therefore may not apply a use-it-or-lose-it policy, and must pay employees for unused days at the end of the employment relationship.
- Floating holidays may be more like traditional holiday pay, which is not a vested benefit and can be subject to a use-it-or-lose-it policy and does not have to be paid at termination, if connected to a specific event. DLSE Enforcement Manual § 15.1.12.
- If an employee cannot make sufficient time outside of working hours to vote in a statewide election, he/she can take off up to two hours of working time to vote without loss of pay. If an employee needs over two hours of working time in order to vote, employers can agree to more time, but it would be unpaid.
- Employers cannot require the employee to use accrued vacation or paid time off (PTO). Elections Code § 14000.
Employees have rights to unpaid time off for medical or family-medical reasons.
Family Medical Leave (FMLA/CFRA)
- The California Family Rights Act (“CFRA”) is the California equivalent of the federal Family and Medical Leave Act (“FMLA”). Both provide employees with 12 weeks of unpaid leave for child-bonding and in the event of a serious health condition of the employee and his or her child, spouse, or parent. In addition, and in the majority of situations, the 12 weeks of unpaid leave provided for by CFRA and FMLA run currently. Until now, the only major difference between the two laws was that FMLA applied to medical issues arising due to pregnancy while CFRA did not. CFRA leave can be used for additional categories of family members – grandparents, grandchildren, and siblings – while FMLA leave cannot. This means employees in certain situations can “double-dip” and obtain 24 total weeks of unpaid leave in a given year rather than just 12. For example, an employee caring for a sibling with a serious health condition could use his or her 12 weeks of CFRA time but still have 12 weeks of unpaid leave under FMLA for use during the same leave year.
- Covered Employers. Employers with 50 or more employees are covered by the FMLA. 26 U.S.C. 2601, et seq. California employers with five (5) or more employees are covered by the state-equivalent of the FMLA, known as the California Family Rights act, or the CFRA. Government Code § 12945.2(b)(3).
- Amount of Leave. 12 weeks of unpaid leave (CFRA). Government Code § 12945.2(a).
- Employee Eligibility. Employees with more than 12 months of service with the employer, and who have at least 1,250 hours of service with the employer during the previous 12-month period are eligible (CFRA). Government Code § 12945.2(a).
- Qualifying Reasons. (A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee. (B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition. (C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions. Government Code § 12945.2(b)(4).
- Employer Responsibilities. When employers learn that an employee is absent for any reason that may qualify, they should send a notice to the employee designating any time off related to the absence as FMLA/CFRA. There are also requirements for posters and notices, including notices relating to eligibility. Employers are prohibited from interfering with the exercise of FMLA/CFRA rights and from retaliating against an employee who takes FMLA/CFRA.
- Terminating on Leave. It is unlawful to terminate or retaliate against an employee for exercising CFRA rights. Government Code § 12945.2(k)(q). If an If an employee is “disabled” within the meaning of the ADA or FEHA, the employer must consider whether a leave is required as a reasonable accommodation under those statutes, regardless of whether the employee is entitled to CFRA leave. Capps v. Mondelez Global, LLC, 847 F.3d 144, 156-157 (3rd Cir. 2017).
Pregnancy Disability Leave (PDL)
- Covered Employers. Employers with five (5) or more employees are covered. Government Code § 12945.
- Amount of Leave. The actual time designated as disability related to pregnancy is determined by the employee’s health care provider. The maximum amount of time available is four months, or 17 1/3 weeks per pregnancy. If an employee is disabled longer than four months, the employee may be entitled to additional leave as a reasonable accommodation for a pregnancy-related or other disability.
- Employee Eligibility. Employees who work for covered employers are eligible for PDL upon hire.
- Qualifying Reasons. PDL can be used for any time the eligible employee is disabled by pregnancy, childbirth or a related medical condition.
- Employer Responsibilities. Post required posters, include a PDL policy in your employee handbook and send a notice to any employee who needs PDL.
- Terminating on Leave. The employee is entitled to reinstatement to the job held before PDL began. The employee cannot be subject to adverse employment action because of PDL use.
Reasonable Accommodation Disability Leave (ADA/FEHA)
- Covered Employers. State disability discrimination laws apply if you employ five or more employees. Government Code § 12926 (d). Federal law applies if you employ 15 or more employees. 42 U.S.C. § 12111.
- Amount of Leave (Finite But No Maximum). Employers may have to extend leave as a reasonable accommodation. Employers must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless you can show that the accommodation would cause an undue hardship on the employer’s operation. A finite leave of absence may be a reasonable accommodation under the FEHA if, following the leave, the employee likely can resume his or her duties. California Code of Regulations, tit. 2 § 11068(c); see Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 263 (2000).
- No Maximum Leave Amount. Unlike other forms of statutory leave, the disability accommodation leave may not have a fixed limit on the amount of leave required as a reasonable accommodation; rather, “a disabled employee is entitled to a reasonable accommodation — which may include leave of no statutorily fixed duration — provided that such accommodation does not impose an undue hardship on the employer.” Sanchez v. Swissport, Inc., 213 Cal.App.4th 1331, 1338 (2013); see EEOC Press Release, November 22, 2006; see EEOC Press Release, August 8, 2017; see EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).
- No Forced Leave. While a leave of absence may be a reasonable accommodation, “[w]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.” California Code of Regulations, tit. 2 § 11068(c); see Wallace v. County of Stanislaus, 245 Cal.App.4th 109, 134 (2016).
- Employee Eligibility. A disabled employee who can perform the job’s essential functions is eligible.
- Qualifying Reasons. A disabled employee needs modified work or a period of leave for reasons related to the disability.
- Employer Responsibilities. When employers learn that an employee has a disability that may require reasonable accommodation, engage in the interactive process to determine a reasonable accommodation. Employers should allow an employee with a disability to exhaust paid leave first and then provide unpaid leave.
- Terminating on Leave. Employees with a disability have no greater rights than if they weren’t disabled. The right to reinstatement would end if the employment relationship ends. But, the employee may claim retaliation.
Leave Interaction (FMLA/CFRA, PDL, ADA/FEHA)
- Many employees have the right to take time off during and after the birth of their child. There are generally three types of maternity leave that may be taken consecutively
- Family Medical Leave (FMLA/CFRA). Employees that work for employers that employ 20 or more people are entitled to take up to 12 weeks of family leave to bond with their child. Government Code §§ 12945.2, 12945.6.
- Pregnancy Disability Leave (PDL). An employee who has a disability related to her pregnancy or the birth of her child can receive up to four months of maternity leave while that disability continues, as long as certain requirements are met. Government Code § 12945.
- Reasonable Accommodation Disability Leave (ADA/FEHA). After an employee has exhausted other leave, employers may be required to accommodate their employees’ pregnancy-related disabilities. Government Code § 12940 (m).
- Combined Maximum Amount of Leave (FMLA/CFRA Leave, PDL Leave, ADA/FEHA Leave). FMLA/CFRA and PDL leave can be taken consecutively, allowing many employees up to seven months of maternity leave per pregnancy – and possibly more if additional leave time would be a reasonable accommodation for the employee’s pregnancy-related disability. California Code Regs., tit. 2 § 11046 (a) (“The right to take a pregnancy disability leave under Government Code § 12945 and these regulations is separate and distinct from the right to take leave under the California Family Rights Act (CFRA), Government Code §§ 12945.1 and 12945.2.”); California Code Regs., tit. 2 § 11093(a) (“The right to take a CFRA leave under Government Code section 12945.2 and the right to take NPLA leave under Government Code section 12945.6 are separate and distinct from the right to take a pregnancy disability leave under Government Code section 12945 and section 11035 et seq. of the regulations.”). Upon exhaustion of the employee’s FMLA/CFRA leave and PDL leave, under the ADA/FEHA, an employee who is disabled may seek unpaid disability accommodation leave as a reasonable accommodation.
Alcohol & Drug Rehabilitation Leave
- Employers with 25 or more employees must reasonably accommodate any employee who volunteers to enter an alcohol or drug rehabilitation program, if the reasonable accommodation does not impose an undue hardship. Labor Code § 1025.
- Reasonable accommodation includes time off with or without pay and adjusting working hours.
- An employee who is absent for alcohol or drug rehabilitation can use sick leave pay to which they are entitled. Labor Code § 1027.
Employees have the right to unpaid time off rights in certain situations not related to family or family-medical issues.
Jury Duty and Witness Duty Leave
- All employees are protected when they are engaged to serve on an inquest jury or trial jury, and to appear in court in compliance with a subpoena or court order as a witness. Labor Code § 230.
- Whether employers musts pay wages to employees who takes time off for jury or witness duty depends on their status as exempt or nonexempt. Employers are not legally required to pay a nonexempt employee’s wages while the employee serves on jury duty or as a witness.
Military Service Leave
- USERRA extends the length of leave time and reinstatement rights employers must allow for military duty to five years. This five-year limit is the cumulative length of all employment absences due to military service. 38 U.S.C. 4312(a)(2).
- California employees who are members of the reserve corps of the United States armed forces, the National Guard or the Naval Militia are entitled to up to 17 calendar days of unpaid leave per year (including time spent going to and returning from duty) for military training, drills, camp, naval cruises, special exercises or similar activities. Military and Veterans Code § 394.5.
- All California employers with 25 or more employees must provide an unpaid leave of absence for spouses of military personnel. Military and Veterans Code § 395.10. Military spouse leave lasts for up to 10 days.
School Appearance and Activity Leave
- Employers are prohibited from discriminating against an employee who takes time off to appear at his/her child’s or ward’s school in connection with a suspension from a class or school. Labor Code § 230.7.
- Employers must permit employees to take time off to participate in certain school or child care activities.
- Covered employees can take up to 40 hours each year for the specified school and child care activities. Labor Code § 230.8.
Volunteer Civil Service Leave
- All employers must provide leaves of absence for employees who are required to perform emergency duty. Employers are not required to compensate the employee during this time off. Labor Code § 230.3.
- The law applies to: volunteer firefighters; reserve peace officers; emergency rescue personnel, defined as any person who is an officer, employee, or member of a fire department, fire protection or firefighting agency of the federal government, California state government, local government, special district or other public or municipal corporation or political subdivision of California; or, an officer of a sheriff’s department, police department or private fire department.
- Employers must allow temporary leaves of absence – up to a total of 14 days per calendar year – to engage in fire, law enforcement or emergency rescue training. Labor Code § 230.4.
- Employers must provide employees with up to 10 days of leave per year for Civil Air Patrol duty. Labor Code §§ 1501 and 1503.
Crime and Domestic Violence Victim Leave
- Employers must allow an employee who is a victim, or an immediate family member of a victim of certain crimes to take time off to appear in court to attend judicial proceedings related to the crime. Labor Code § 230.2. The leave can be of any length.
- Crime victims may take time off from work, at the victim’s request, to appear in court to be heard at any proceeding in which a right of the victim is at issue. Labor Code § 230(b).
Mandatory Days Off
- Generally, every employee is entitled to at least one day off in a seven-day workweek, and an employer cannot cause an employee to go without a day of rest. Labor Code §§ 551, 552.
- Employees are entitled to one day of rest in each workweek; they are not entitled to one day off on a rolling basis for any seven consecutive days worked in a row. Periods of more than six consecutive days that stretch across more than one workweek are not, by definition, prohibited. Mendoza v. Nordstrom, Inc., 2 Cal.5th 1074 (2017).
- Employees can accumulate rest days when the nature of employment requires them to work seven or more consecutive days. However, employees must receive rest days equivalent to one day in seven during each calendar month. Labor Code § 554.
- The day of rest requirement does not apply to emergencies or to work performed in the protection of life or property from loss or destruction. Labor Code § 554.
- The day of rest requirement does not apply when hours worked do not exceed 30 in any workweek or six in any workday. Labor Code § 556. The exception for employees working shifts of six hours or less only applies to those who never exceed six hours of work on any day of the workweek. Mendoza v. Nordstrom, Inc., 2 Cal.5th 1074 (2017).