Paternity Leave Law in CA

Brad Nakase, Attorney

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Although it seems normal for a woman to ask for time off when having a baby, California does have laws that protect fathers as well. Paternity leave is something that is allowed in California and certain rules must be followed by employers if this leave is requested. Leave should be freely given by an employer.[1]

Laws covering paternity leaves of absences

An employee, regardless of sex, has the right to take off 12 weeks of leave during a 12-month period if:

  • The employee needs time to take care of son or daughter that is just born or
  • Receiving of a child through adoption or through foster care.[2]

This law covers fathers wanting to take paternity leave as well as women wanting to take maternity leave as long as it is requested.

When and how to ask for paternity leave?

Reasonable notice should be given to an employer including when the leave will be taken and how long the employee plans to be out of the office.[3]

It can be done verbally or in writing.[4] Writing is the best option because it gives employers notice but also acts as evidence if there ever is a problem in the future.

Paternity leave must be given freely by an employer if the employee entitled.[5]

An employer can also request medical documentation if it so pleases and the employee must give it; usually a doctor note suffices. However, the employer can demand the request to be made 30 days before the planned leave.[6]

 Wage, Salary, and Payment during paternity leave

Paternity leave, similar to maternity leave, is usually unpaid. However, an employee may use vacation days or other paid time off during this period in order to receive wages.[7] In some instances, an employer can force an employee to use this time off during leave. Further, if leave extends over the 12 week period, then in order to keep your position, vacation time must be used.

Getting your job back after paternity leave

Most people wonder what happens to his or her position while he or she is gone – is it given away? If he or she takes leave will they have a job when they return? Fortunately, under California law[8], an employee who returns from leave is entitled to her same or comparable position upon returning.[9] However, there is an exception to this expectation. If a company has layoffs, the company closes, or goes bankrupt, the guarantee for a position is hindered.[10]

Infant and Baby Bonding Time Leave

Family and bonding time leave is an example of other types of leave that can be requested.[11] This allows an eligible employee, man or woman, to take up to 12 weeks of leave per year, either at once or any time within one year of the child’s birth or adoption.

However, this only applies in certain situations:

  • Employer must employ at least 20 people within 75 miles of employee’s worksite;
  • Employee must have worked more than 12 months for employer prior to period of leave taken and
  • In past 12 months, employee must have worked at least 1,250 hours for the employer.[12]

If these requirements are met, California law will likely require the employer to entitle the employee to family leave. Upon returning, he or she must be given the same or comparable position he or she had at the time of taking the leave.[13]

Further, if added training is needed or the employee’s skills are no longer up to the standard of the position, the employer must give a reasonable time for the employee to catch up and learn.[14]

Paternity Leave

The New Parent Leave Act, which is similar to that above, entitled an employee to 12 weeks of paternity leave.[15] However, this Act only applies to smaller employers with less employees, specifically 20 to 49 employees.[16] An employee is not paid during this time but has his position protected.

Child Bonding Leave

Child bonding leave is another option when asking for paternity leave.[17] This leave requires an employer to have 50 or more employees and is also limited to up to 12 weeks. An employee is not paid during this time but has his position protected.

Of the above options, only one may be chosen, not all. Further, in most instances, the 12 weeks can be used throughout the year and not all at once. However, some require the time to be taken consecutively.

In order to determine which one fits you the best, it is important to speak with your human resource department, someone who has taken the leave himself, or speak with an attorney.

If a violation occurs by employer, what can I do?

Employees have a few options if they have been denied. First, is to resolve the dispute with the employer usually privately or with human resources or the employee may file a suit in court. However, if the employee wants to bring a claim under state law (California’s Department of Fair Employment and Housing), he must do so within one year from the violation.[18] If the employee does so and is approved by the Department, he has one year to file a civil suit in court.[19]

Legal Reference

[1] 29 U.S.C. § 2612(a)

[2] 29 U.S.C. § 2612(a)(4

[3] Gov. Code, § 12945, subd. (a)(1)

[4] California Code of Ordinances Sec. 2.72.100

[5] Cal. Code Regs., tit. 2, § 11042, subd. (c)

[6] Cal. Code Regs., tit. 2, § 11091, subd. (a)(2)

[7] Gov. Code, §§ 12945.2

[8] Cal. Code Regs § 11043

[9] Cal. Code Regs § 12945.2

[10] Cal. Code Regs § 11043

[11] Cal. Code Regs § 12945.2 (I)

[12] Cal. Code Regs § 12945.2 (c)(2)

[13] Cal. Code Regs § 12945.2 [14] Cal. Code Regs., tit. 2, § 11089, subd. (a)(2)(B)

[15] Gov. Code, § 12945.6, subd. (a)

[16] Gov. Code, § 12945.6, subd. (a)

[17] Gov. Code, § 12945.2

[18] Gov. Code, § 12960

[19] Gov. Code, § 12965, subd. (d)(2)

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