For parents, raising a young child is one of the most important, yet rewarding parts of life. Establishing a bond with your child may be the single most significant aspect of your life. However, eligible employees are often denied paternity leave, and it is especially important for gay employees to understand the applicable paternity leave laws in order to protect themselves against workplace discrimination. Here’s everything you need to know about paternity leave laws in California.
In California, employees can be granted paternity leave for the purpose of bonding with a new child following birth, adoption, or foster care placement. There are three key bodies of law for families navigating paternity leave: the federal Family and Medical Leave Act (the FMLA), the California Family Rights Act (the CFRA), and California Paid Family Leave (PFL). Under the FMLA and the CFRA, employers with 50 or more employees must give their eligible employees 12 weeks of unpaid paternity leave. Employees may also be eligible for PFL, in which case they may receive 60-70% of their wages for up to 8 weeks.
As of 2021, new laws in California have overhauled paternity/family leave, and so it is more important than ever to find the support you need to understand and invoke your rights.
What Is Paternity Leave?
“Paternity leave” refers to time given to new parents to bond with and raise their child following birth, adoption, or foster care placement. Paternity leave is common among gay couples who choose to raise a child. Since January 1, 2021, Governor Gavin Newsom has signed a new bill that essentially eliminates paternity leave in California in favor of the CFRA. This act basically eliminates New Family Leave laws and replaces them with rights under the CFRA. Under this new law, employers with 5 or more employees will need to offer at least 12 weeks of unpaid leave per year. This law extends to employees that have worked 1,250 hours within the past 12 months, so partial employees would not be able to take advantage of this.
Employers are also required to offer more unpaid leave for other reasons. For example, employers must provide additional leave if an employee faces certain family issues, medical issues, personal issues, and, of course, paternity issues. Additionally, if both parents are working at the same workplace together, the employer may not simply issue 12 weeks of leave combined for both of the employees; each employee is individually entitled to 12 weeks of unpaid leave.
The CFRA, however, is limited to unpaid leave. For many families, this is only part of the battle. Paid Family Leave provides a partial wage replacement for eligible individuals who take time off work to bond with a new child, including an adopted child. Therefore, PFL provides financial benefits to keep employees afloat while taking advantage of the time off they may be entitled to under the CFRA.
Notably, San Francisco requires employers to provide supplemental parental leave compensation in addition to the state-wide requirements.
Does my employer provide paternity leave?
The legislation is in place to protect paternity rights. The California Family Rights Act (the CFRA) and federally-mandated Family Medical Leave Act (the FMLA) require employers with 50 or more employees to give their workers 12 weeks of unpaid paternity leave. Similarly, the CFRA now extends to employers with as few as 5 employees, as opposed to the previous system, which required 20. Under the new CFRA, California employees will be eligible for up to 12 weeks of unpaid leave to eligible employees for covered reasons. Critically, these rights under the CFRA have been extended to all employees.
Am I eligible for paternity leave?
In order to be eligible for paternity leave under the CFRA, an employee must:
- Have worked for the employer for at least 12 months
- Have worked 1,250 hours within the past 12 months; and
- Have worked at a location that employs 50 employees within a 75-mile radius (eliminated as of January 1, 2021).
As of January 1, 2021, the CFRA has taken over the FMLA, allowing all employees who work in a company with over 5 employees to take time off to care for their child. The law states that all employees are entitled to 12 weeks of unpaid leave in California. The new law also states that the company cannot deny leaving to an employee if they are in the 10% wage earners bracket, nor may employers cap the time off to a combined 12 weeks to both spouses (where applicable). This means that each individual employee gets 12 weeks of time off; they need not split it between themselves
How much time do I get off for paternity leave?
California employees typically get up to 12 weeks of paternity during their child’s first year since birth, adoption, or foster placement. Mothers and fathers are entitled to the same amount of parental leave. In California, it is illegal to discriminate against parental leave based on sex or gender identity.
However, women typically receive more time off work because of pregnancy. “Pregnancy disability leave” provides up to four months of leave for eligible mothers before the birth of their child, in addition to the 12 weeks discussed above. If a cisgender man were denied pregnancy disability leave, this would not be considered discrimination.
Will I be paid during my paternity leave?
Under the CFRA, there is no requirement for California employers to compensate their employees while on parental leave. Therefore, most employers do not pay employees during their time off. Instead, an employee may request compensation that would have been used for vacation time, sick days, or paid time off (PTO).
However, California, unlike many other states, has a paid family leave program. With PFL, Parents are often eligible to receive partial wages during their parental leave. California generally pays 60 percent of employees’ wages for six weeks of their parental leave. Low-income earners may even be compensated up to 70% of their usual wages. In addition, employees may supplement this partial wage replacement with their aforementioned vacation time, sick days, and PTO in order to receive up to 100% of their typical, full-time compensation.
Whereas CFRA’s unpaid leave can last up to 12 weeks, UPL wage replacement benefits can only last up to 8 weeks. Employees can elect to enjoy the benefits of both UPL and the CFRA all at once, or they can break it up over the first year following their child’s birth, adoption, or foster care placement (though your employer may require you to take the leave in two-week stints).
Will I return to my normal duties on the job after my paternity leave?
California is exceptionally protective of employee’s right to return to work following paternity leave. Employers must reinstate employees to the same or a similar position to the one they had. Even if the employee is no longer qualified for the position for any reason, the employer must provide reasonable time for the employee to fulfill any requirements. These protections follow even if an employee was replaced or the position was restructured out of existence. For example, if a person worked as a corporate manager at a specific location, their employer must find an analogous position for the employee, complete with comparable compensation, benefits, responsibilities, schedule, status, etc.; the company cannot simply place the employee as a low-level employee 100 miles from where they once worked.
How do I request paternity leave?
California employees should give a minimum of 30 days’ notice to their employer when requesting paternity leave for a foreseeable event, such as adoption, birth, or foster placement. This way, an employer cannot deny the request for CFRA or FMLA leave for insufficient notice.
The request may be verbal, and it need not invoke the CFRA or the FMLA. However, the request must specify the reason for the leave.
Contact Pride Legal
If you or a loved one has been denied parental leave, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.