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Leave of Absence Lawyer

Under California’s leave of absence laws, employees are allowed to take time off for short or extended periods without losing their job. If you are requesting or taking a leave of absence in any one of the circumstances protected by law, you may be entitled to up to 12 weeks of unpaid leave, or even longer.

California’s leave of absence laws are amongst the broadest in the US. They introduce very important protections for employees who require time to deal with a family emergency, personal health issues, pregnancy or even to bond with a new child. Some of these laws include the:

  • California Family Rights Act (CFRA), similar to the Federal Family and Medical Leave Act (FMLA)
  • New Parent Leave Act (NPLA)
  • Healthy Workplaces, Healthy Families Act
  • Labor Code 230.1 (Domestic Violence), 233 (Kin Care), 1025-1028 (Drug and Alcohol Rehabilitation)
  • Michelle Maykin Memorial Protection Act (Organ and Bone Marrow)
  • Fair Employment and Housing Act (FEHA)

In the past, it was almost impossible for workers to enjoy time off work in these circumstances. Unless an employer had favorable policies, nothing stopped a worker from losing their job or being shunted out to a less fulfilling job after returning from leave.

But these days, you can legally request a leave of absence for a wide variety of reasons without fear of job loss. This article explains all you should know about leave of absence laws in California and the protections provided for you if your rights are violated.

Keep in mind that this article does not take the place of legal advice from an experienced California employment law attorney. If your rights are being threatened or already violated, speak to a skilled attorney immediately for legal guidance and representation.

What are the reasons to take a leave of absence in CA?

California laws preserve the rights of employees to request leave of absence for a wide variety of legitimate reasons. These laws do not apply equally to all workers though. The FMLA and CFRA, for instance, apply only to employers with:

  • 50 or more employees who have worked over 12 months and at least 1250 hours; and
  • Who work at a location with at least 50 employees within a 75-mile radius.

Other enactments apply to fewer employees. For instance, the NPLA applies to employers with 20 to 50 employees. An employee may request leave to:

  • Care for a family member: Both the FMLA and CFRA allow eligible employees take up to 12 weeks of leave in a 12-month period to care for an eligible relative with a serious health condition. This may include any illness or health condition that involves continuing treatment by a health provider or in-patient care in a residential medical care, hospice or hospital facility. Eligible relatives are a spouse, child, registered domestic partner or a parent.
  • Bond with a new child: The NPLA allows a parent take up to 12 weeks of leave in a 12-month period to care for or bond with a new child. This includes a biological or adopted child.
  • Give birth or recover from a pregnancy: An employee may take up to 122 days leave for pregnancy or child-birth related medical conditions. The laws apply to employers with 5 or more employees, including all public employers.
  • Recover from a health condition: This is also provided under California’s CFRA and allows an employee take up to 12 weeks leave for a personal medical condition. Any health condition that prevents you from performing the functions of your job qualifies. Your employer may require some certification of the health challenge though, such as a doctor’s note.
  • Attend the funeral of a loved one: If your employer has policies that allow it, you can legitimately take time off to mourn the loss of a loved one.
  • Vote in an election: Under California’s Election Code, an employer should give up to 2 hours of paid time to allow an employee vote, if they don’t have enough time outside work hours. But the employee must provide at least 3 days’ notice.
  • Take part in a trial: Under the Labor Code, you may take time off work to serve on a jury or as a witness, so long as you provide reasonable notice. The law does not require this leave to be paid though.
  • Obtain domestic violence protection: If you were a victim of domestic violence, sexual assault or stalking, you can take time off work to protect yourself or recover. This includes obtaining a restraining order, medical attention or other services.
  • Take part in a trial as a victim of crime: You may take time off to participate in a trial for a crime committed against you. This includes appearing at pre-trial, sentencing and post-conviction release proceedings.
  • Participate in a child’s school activities: You can request up to 40 hours per year to address a child care emergency or participate in school activities.
  • Attend an adult literacy program: Employers with 25 or more employees must allow their employee time off work to continue their education.
  • Participate in rehab: If your employer has more than 25 employees, they must also let you go for drug/alcohol rehab when you need it.
  • Donate an organ or bone marrow: You can go on paid leave to donate an organ or bone marrow, if your employer has 15 or more employees.
  • For military family or spouse leave: The FMLA allows you take up to 26 weeks of unpaid leave during a 12-month period to care for a child, spouse, parent who is a military service member.

It is important to clarify that each of these reasons for leave also come with conditions and obligations that a worker looking to take advantage must fulfill. Our California employment law attorneys can advise you on these conditions and obligations.

Can I take a leave of absence from work due to stress?

Often, we tend to look over stress as something deserving of taking time off work. But stress can be dangerous as it can lead to the development of several disorders including anxiety, depression or even just burnout. It can worsen or increase the risk of obesity, gastrointestinal problems, heart disease, or diabetes.

If you genuinely feel stressed at work, then you should not downplay your symptoms. Go see a doctor and inform them of exactly how you feel and get their recommendations. They will advise you of the best way to recover and if an FMLA-approved leave of absence or a shortened work-week can help.

How long can I take a leave of absence from work?

There are no lower limits for how long a worker may go on leave. As mentioned above, your leave of absence may be for as little as 2 hours (for voting leave), or as long as 26 weeks (for military family or spouse leave).

However, you cannot take more than the allowed periods in any case. You cannot go on leave without going through the proper channels either. Even for statutory leave, which your employer must provide once you request, you must follow the appropriate procedure.

Once you have followed the legal procedure, your employer cannot prevent you from proceeding on statutory leave. There are limited circumstances where an employer can successfully prevent you from going on leave. These include:

  • Employer-provided leave that is not covered under local, state or federal law
  • Where you are not covered by the leave laws; or
  • Where you do not qualify for the type of leave you are requesting.

Can I be terminated while on stress leave?

If you complied with all relevant procedures before going on leave, there are very limited situations in which you may be fired while on leave. It is important to note that none of these situations can be discriminatory, retaliatory, or contrary to the leave of absence laws.

So long as your stress leave is documented and supported by a valid doctor’s recommendation, you are protected under disability laws while on leave. Your employment cannot be terminated because you decided to go on leave. Your employer must keep your old job for when you resume, and if the old job is no longer available, your employer must provide an equivalent.

If you went on stress leave and were informed that you have been terminated, speak to a California wrongful termination attorney at once.

I was terminated while on medical leave, what are my rights?

If you were on leave for a qualifying disability, you cannot be terminated simply for exercising your leave of absence rights. So long as you have complied with all relevant procedures, including providing a doctor’s certificate showing your health condition and recommendation for leave, you are protected.

Further, in certain instances, your employer still has an obligation to provide accommodation even when you have not provided a medical diagnosis. In Ross v County of Riverside, the plaintiff informed his employer that he may be “seriously ill with a neuro-generative disease”, but before he could provide documentation, he was ordered to return to work. The court held that the employer was aware of his potentially disabling condition and should have provided accommodation.

If you are being threatened with termination or if your employer is refusing to let you go on medical leave, you may be able to file a complaint. Speak to our disability discrimination attorneys to understand your rights.

How should I write a leave of absence letter?

A leave of absence letter should clearly state that you are requesting for leave and the reasons why you wish to go on leave. It should include:

  • The dates you expect to be away from work;
  • The date on which you expect to resume
  • Enough evidence to help your employer evaluate your request.

You should also avoid writing a request for leave too close to the day on which you want to go on leave. Employers prefer to receive sufficient notice, and may even require several weeks’ notice. Ensure you follow all appropriate procedures so you can go on properly documented and authorized leave.

Contact Eldessouky Law for help

If you want to gain a better understanding of what your leave of absence rights will be in specific circumstances, contact Eldessouky Law for guidance. Our employment law attorneys can help you determine how your rights apply and how to proceed with enforcing them. Call 714-409-8991 to schedule a free, no-obligation consultation today.

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