Paternity Leave

New fathers have a legal right to take up to 12 weeks of family leave. The leave may be used for any of the following reasons:

  • To bond with a child who was born to, adopted by, or placed for foster care with, the employee;
  • To care for the employee's parent, spouse, or child who has a serious health condition; or
  • Because the employee is suffering from a serious health condition rendering them unable to perform the functions of their job, or their family member (i.e., wife or child) is suffering from a serious health condition and the employee has to provide care for that family member.

Parental Leave (small employers)

The following requirements must be met before an employee of a small employer may take leave to bond with a new child after the child's birth, adoption, or foster care placement:

  • The employer must have at least 20 employees within 75 miles of the employee's worksite;
  • The employee worked more than 12 months for the employer prior to the date that the period of leave is taken; and
  • In the past 12-month period, the employee worked at least 1,250 hours for the employer.

Baby Bonding Leave (larger employers)

The following requirements must be met before an employee of a larger employer may take leave to bond with a new child after the child's birth, adoption, or foster care placement:

  • The employer must have at least 50 employees within 75 miles of the employee's worksite;
  • The employee worked more than 12 months for the employer prior to the date that the period of leave is taken; and
  • In the past 12-month period, the employee worked at least 1,250 hours for the employer.

Leave For A Serious Health Condition (larger employers)

As mentioned above, in addition to taking leave for the purpose of child bonding, eligible employees can use family leave to care for their own serious health condition or the serious health condition of a parent, their spouse, or their child. This type of leave can be useful when a pregnant spouse suffers from pregnancy-related complications, or if the newborn has medical complications.

To be eligible for this type of leave, the following requirements must be met:

  • The employer must have at least 50 employees within 75 miles of the employee's worksite;
  • The employee worked more than 12 months for the employer prior to the date that the period of leave is taken; and
  • In the past 12-month period, the employee worked at least 1,250 hours for the employer.

A serious health condition, for these purposes, is a physical or mental condition that involves either of the following:

  • Inpatient care in a hospital, hospice, or residential health care facility; or
  • Continuing treatment or continuing supervision by a healthcare provider.

Providing Notice Of Leave

Employee wishing to take family leave must provide his employer with notice of the need to take family leave. That notice should include, at a minimum, the following information:

  • The time the leave is anticipated to be taken,
  • The expected duration of the leave, and
  • Facts sufficient to make the employer aware that the employee needs family leave.

This notice can be made verbally, but it is a better idea to do it in writing.

If the need for the family leave is foreseeable, employers can require their employees to give at least 30-days' advance notice before the leave is to begin. The employer can also ask questions designed to determine whether an absence is potentially CFRA- or FMLA-qualifying, and the employee must respond to those questions.

If the need for family leave is sudden or unexpected, notice must be given by the employee as soon as is practicable.

Returning To Work

After taking leave the employee is entitled to be reinstated to the same or a comparable position. If the employer chooses to reinstate the employee in a different position, the new position must be equivalent to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status.

The new position must also involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Additionally, if an employee returns to the job and is no longer qualified for the job due to missing training or other events which happened while he was off work, he must be afforded a reasonable opportunity to fulfill those key requirements.

No Retaliation

Equally important is the prohibition against retaliation towards an employee who takes a leave of absence. Retaliation may include reinstatement to a less desirable position, demotion, write ups, suspension and even wrongful termination.

Contact Us Today To Discuss Your Unique Situation

If you were denied the opportunity to bond with your new family member, take leave to care for your spouse or child's serious health condition, or were retaliated against for taking leave(s) then you should contact us. Le Clerc & Le Clerc LLP's lawyers have extensive experience in representing employees who took legally protected time off work. Call us today at 415-445-0900 or contact us online to schedule a free initial consultation.