Legal Question in Medical Leave in California

My employer only allows us to take a certain number of sick leave hours per year. Under the FMLA, can we use a larger portion of those hours without being diciplined??


Asked on 1/18/11, 6:50 pm

2 Answers from Attorneys

Lisa Howard Law Offices of Lisa M. Howard

There is no legal requirement under California law for employers to provide paid sick leave. Employees should refer to their employer’s policy with respect to paid sick leave. However, most employers participate in the State Disability Insurance Plan (SDI), which they pay for through payroll deductions. (Unemployment Insurance Code §2601, et seq.) Employers are required to give newly hired employees and employees leaving work due to pregnancy or non-occupational sickness or injury a copy of a notice of their disability insurance rights and benefits due to sickness, injury or pregnancy. (Unemployment Insurance Code §2613) Additional information concerning disability insurance can be obtained from your local office of the Employment Development Department (EDD) or through their website at www.edd.ca.gov.

If an employer has a sick leave policy, the employer must permit an employee to use in any calendar year, the employee’s accrued and available sick leave, in an amount not less than the sick leave that would be accrued during 6 months at the employee’s current rate of sick leave, to attend to an illness of a child, parent, domestic partner, or spouse of the employee. (Labor Code §233)

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Answered on 1/24/11, 5:37 am
Terry A. Nelson Nelson & Lawless

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’ [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused leave[s] as part of the 12 weeks, so as to make that portion 'paid'. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider. Being out sick with the minor illness or injury does not fall within the protections.

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Answered on 1/24/11, 12:12 pm


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