On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
California law now includes so many job-protected leaves of absence that employers can be forgiven for asking, “can employees be required to come to work?”
Many observers conclude that this trend has made employee leave of absence rights the most complicated area of California employment law, an already-complex subject.
More than 20 different laws now grant employees the legal right to take time off from work for personal reasons.
Consistent with this trend, The Family-School Partnership Act was amended, effective January 1, 2016, to significantly expand employee rights to take time off in connection with their children’s school activities.
Previously, employers with 25 or more employees were required to allow employees to take up to 40 hours of unpaid time each year to participate in school or childcare-related activities.
Effective January 1, 2016, this law (Labor Code, section 230.8) was amended to greatly expand not only the reasons employees can take time off, but the list of “family members” who are entitled to protected leave.
Employees now have the right to miss work for the purpose of enrolling or re-enrolling children in a school or licensed daycare facility or to address a “childcare provider or school emergency,” which the statute defines to include situations where a child is unable to remain in school or daycare due to any of the following reasons:
- The school or daycare facility has requested that the child be picked up;
- The child’s behavioral or disciplinary problems;
- Closure or unexpected unavailability of the school/provider; or
- A natural disaster including, but not limited to, fire, earthquake or flood.
The statute prohibits employers from firing or otherwise discriminating against employee/family members of children attending kindergarten or grades 1-12 (or a licensed daycare facility) for requesting or taking time off.
The law previously provided job-protected leave to “family members,” a term the statute restricted to parents, guardians and grandparents. However, the amended statute significantly expands the definition of “family member,” to include a child (whether biological, adoptive, foster, stepchild, legal ward or to whom an employee stands in loco parentis), a parent (whether biological, adoptive, foster, stepparent, legal guardian of an employee or his/her spouse/registered domestic partner or person who stood in loco parentis when the employee was a child), a spouse, registered domestic partner, a grandparent, a grandchild or a sibling.
Moreover, the new law amends “kin care” protections requiring employers to allow employees to use one half of their accrued sick leave to care for a “family member” permitting an employee to use sick leave for the purpose of the illness or preventive care of a child, parent, spouse, registered domestic partner, grandparent, grandchild or sibling.
In order to qualify for time off under the amended statute, an employee is required to provide reasonable notice to the employer of the planned absence prior to taking time off, although the term “reasonable notice” is not defined.
The new law recognizes the rights of employers to require written verification of an employee/family member’s school “participation.” However, it requires employers to accept whatever documentation of the employee’s school participation/absence the school/facility deems appropriate.
Employer liability for violations of the new law is significant and can involve, for example, three times the amount of the employee’s lost wages and work-related benefits.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/