Granting Leave for Family Care

Decide what your company can afford to do, then draw up a policy that applies equally to all your employees

Several of my employees have asked for time off to care for aging relatives. I've always granted these requests when possible. But am I legally obligated to do so?

—A.V., La Jolla, Calif.

It can present a real hardship for a small business when employees need substantial time away from work to care for loved ones. With many Baby Boomers responsible for both young children and elderly parents simultaneously, these requests are becoming more common. Some employers choose to permit time off only up to what the law requires for employees. Others are more generous, particularly with unpaid leave. You will have to decide what your company can afford to do, and then draw up a leave of absence policy that applies fairly to all your workers (see, Spring, 2007, "A Plumper Payroll").

"When a good balance is struck, the employer may be able to recruit and retain employees better," says Mark Terman, an attorney at Los Angeles firm Reish Luftman Reicher & Cohen. "If you're contemplating a discretionary personal leave policy, be careful to make decisions fairly in the context of your company's business needs at the time. To oversimplify: Granting leave to a Caucasian male under 40 and later denying leave to a Latina may draw a question about whether unlawful discrimination has occurred."

As to what the law requires: If your company has fewer than 50 employees, you have no legal obligation to grant unpaid time off to your workers with elder-care issues.

Participating in Ongoing Treatment

If you have 50 or more employees, your company is subject to both the Federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Together, they require an employer to provide up to 12 weeks (over one year's time) continuous or intermittent unpaid leave of absence to full-time employees who must care for a spouse, child, or parent with a serious health condition.

"Under these statutes, parent means a biological parent or an individual who had the daily responsibilities to care for and financially support the employee when the employee was a child. Caring for a family member includes both physical and psychological care. That can range from a parent who is hospitalized, in hospice care, undergoing treatment, at home alone, or one who needs help getting to doctors' visits due to a serious health condition," Terman says. "Care can also include making arrangements for care such as a transfer to a nursing home. The key is that the employee must be participating in the ongoing treatment of the parent's serious health condition."

As the employer, you can require your employee to show you certification from a health-care provider that verifies the serious health condition involved. It would be illegal for you to discipline or discriminate against employees who ask for family medical leave.

State by State Differences

Since you're a California-based employer, if you provide paid sick leave to your employees, you're also obliged to allow them to use up to half of their annual sick leave to attend to the illness of their child, parent, spouse, or domestic partner. In this context, parent means biological, foster, adoptive, step-parent, or legal guardian, Terman says. "Employers can require reasonable verification of the need for the use of sick leave for this purpose, just like it can when the employee is away for sick leave," he adds.

Other than the partial use of sick leave, there's no law requiring you to provide paid leave of absence in these circumstances. You can decide to do so if you want, however. You also must inform your employees taking unpaid leave about California Paid Family Leave, which provides up to six weeks' partial wage replacement to eligible employees who must take time off to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new minor child. The program is funded by employee payroll deductions, similar to state disability insurance.

Because the various state and federal rules involved in this issue are quite complicated, Terman suggests that you consult an attorney or human resources professional before you design a specific policy for your company. Sites with additional information on the federal law, and on the state law include proper medical certification forms. More information on the California Paid Family Leave Program, and a pamphlet you can give to your employees, can be found at its Web site.

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