Vincent W Davis

Family Leave (FMLA), Vacation Time, and Time Off

Family Leave Act (FMLA)

Under the Family and Medical Leave Act (FMLA) California law provides that some employers must provide leave to employees who have worked with the company for more than a year for the birth or adoption of a child or when the employee, a spouse or close family relative suffers from a serious health condition. It shall be an unlawful employment practice for an employer to refuse to hire or to discharge, fine, suspend, expel or discriminate against any individual because of an individual’s exercise of the right to family care and medical leave.


Vacation Time, Family Leave and Time Off – Employees have no right to take paid vacation unless the employer has agreed to provide paid vacation time.  Employers can provide “waiting times” such that no vacation accrues during the first year (for example) so long as the policy is not a pretense, and no vacation is earned or occurred during that first year.

However, employers cannot provide “use it or lose it” policies such that an individual who does not use all of his or her accrued vacation pay by a particular time forfeits the right to be paid for those days at a later date.  But, employers may “cap” an employees vacation.

Sick Leave

Generally, paid sick leave is only available to employees at the discretion of the employer.  All employers who offer sick leave to their employees must allow them to use a portion of the sick leave to attend to an ill child, parent, spouse, or domestic partner.  However, unlike vacation pay, sick leave is not paid out upon termination of employment.

Pregnancy Disability

Pregnancy Disability - Maternity LeaveEach female employee is eligible for pregnancy disability leave if she becomes disabled by pregnancy, childbirth, or related medical conditions.  A woman is disabled if, in the opinion of her health care provider, she is unable to work at all because of pregnancy, childbirth, or related medical conditions, is unable to perform any one or more of the essential functions of her job, or is unable to perform those functions without undue risk to herself, to the successful completion of her pregnancy, or to other persons or if she is suffering from severe “morning sickness” or needs to take time off for prenatal care.

Generally, four months is the maximum period of pregnancy leave.  The four months may be taken intermittently or on a reduced work schedule when medically advisable.


Up to 12 workweeks of federal FMLA leave (for eligible employees) may be taken during a 12-month period for any of the following reasons:

  • The birth of the employee’s son or daughter or to care for the employee’s newborn son or daughter;
  • The placement of a son or daughter with the employee for adoption or foster care;
  • Care of the employee’s spouse, son or daughter, or parent who has a serious health condition;
  • The employee’s own serious health condition that renders the employee unable to perform one or more of the essential functions of the employee’s position; or
  • A “qualifying exigency” arising out of the fact that the employee’s son or daughter, parent, or spouse is on “covered active duty” in the Armed Forces, or has been notified of an impending call to “covered active duty” status.

In addition, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a “covered servicemember” may take up to 26 workweeks of leave to care for the “covered servicemember” in a single 12-month period.

What Can an Employer Demand to Prove the Need for Family Leave?

If you, as an employee, require time off work under the provisions of the Family Leave Laws to care for a child, a spouse or a parent who has a serious illness, your employer may request that the medical issue be supported by a written certification attesting to the condition by a health care provider of the qualifying family member requiring care. That written notification should be sufficient if it includes most or all of the following:

  • The approximate date on which the serious health condition began
  • The estimated duration of the health condition
  • An estimate of the amount of time required of the employee to care for the family member
  • A statement that the health condition warrants the direct participation of a family member to provide care or supervision

CFRA is basically the same as FMLA except:

  • Leave for a “qualifying exigency” and leave to care for a “covered servicemember” are not available under the CFRA;
  • under the CFRA the term “employee’s own serious health condition” does not include the employee’s disability caused by pregnancy, childbirth, or related medical conditions; and
  • under the California Domestic Partners Rights and Responsibilities Act of 2003 (DPRRA) registered domestic partners must be treated the same as spouses for most purposes.

Under California and Federal law an employee, other than a “key employee”, returning to work from leave is entitled to be restored to the same position the employee held when the leave began, or to an equivalent position (virtually identical position) with equivalent benefits, pay, and other terms and conditions of employment.

Both the CFRA and the FMLA require employers to maintain an employee’s coverage under any group health benefit plan (medical, dental, and vision) during qualifying leave in the same manner as if the employee were actively working

If an employee is laid off while taking FMLA or CFRA leave and his or her employment is terminated, then the employer’s responsibility to continue the leave, maintain group health plan benefits, and reinstate the employee ceases when the employee is terminated, if the employer had no continuing obligations under a collective bargaining agreement or otherwise.


Both the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) make it unlawful for any covered employer to fail to make “reasonable accommodation” for the known disabilities of applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the employment position they hold or are applying for.

Religious Beliefs

Employers must reasonably accommodate employees’ requests for time off to observe religious holidays.

Employees Who Voluntarily Enter Drug or Alcohol Rehabilitation Programs

Private employers in California who regularly employing 25 or more employees must make a reasonable accommodation for any employee who wishes to voluntarily enter and participate in a drug or alcohol rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.

Voting Leave

An employee can take off necessary time, when added to available nonworking time, to vote in a statewide election. Unless otherwise agreed, the time must be taken at the shift’s beginning or end, whichever will minimize the time off.  Up to 2 hours of the time off is with pay.

Employees cannot be suspended or discharged for “absence while serving as an election officer on election day.”

Jury Duty or Serving As a Witness

Employees are entitled to take time off for jury duty or for a court appearance as a witness as required by law if they give the employer reasonable notice, and may not be discriminated against for doing so.

Leave For Military Service

It is a misdemeanor to discharge, refuse to hire, or otherwise discriminate against a person because of his or her membership in a state or federal military service or attendance at an ordered military duty or training.

National Guard and Reserves are entitled to a temporary leave of absence without pay, not to exceed 17 days annually, for required training or similar duty.

School Leave

An employee who is a parent or guardian of a child suspended from public school is entitled to take time off to attend a portion of the school day in his or her child’s or ward’s classroom if the school has asked the employee to do so and if the employee gives the employer reasonable advance notice.

Leaves for Victims of Domestic Violence or Sexual Assault

Time off to seek a temporary restraining orderAn employer may not discharge or in any manner discriminate, or retaliate against a victim of domestic violence or sexual assault who must take time off to seek a temporary restraining order or other injunctive relief to help ensure the health, safety, or welfare of the employee or his or her child.

Contact a California Labor Law Attorney

If you find yourself with a workplace issue regarding Family Leave or any other valid need for time off from work and you feel your employer is not being compliant with the law, contact an employment attorney at Vincent W. Davis & Associates to set up a no-cost, no-obligation consultation for a thorough assessment of your unique situation. Most employment issues can be preliminarily discussed by phone, and then if it is necessary to visit us in person, we have several conveniently-located offices in and around the Southern California counties and cities including, but not limited to:

  • Los Angeles
  • Los Angeles County
  • Orange County
  • Riverside County
  • San Bernardino County
  • Santa Ana</li
  • Beverly Hills
  • Anaheim
  • Irvine
  • Long Beach
  • Pasadena
  • And more…

Arcadia Office
150 N. Santa Anita Ave,
Suite 200
Arcadia, CA 91006
Phone: (626) 446-6442
Fax: (626)-446-6454

Beverly Hills Office
9465 Wilshire Blvd.
Suite 300
Beverly Hills, CA 90212
Phone: (310)-880-5733

La Mirada Office
Cerritos Towne Center
17777 Center Court Drive ,
Suite 600
Cerritos, California, 90703
Phone: 888-888-6542

Los Angeles Office
Gas Company Tower
555 West Fifth Street,
31st Floor
Los Angeles, California, 90013
Phone: (213)-400-4132

Long Beach Office
Landmark Square
111 West Ocean Blvd.,
Suite 400
Long beach, California, 90802

Irvine Office
Oracle Tower
17901 Von Karman Avenue,
Suite 600
Irvine, California, 92614
Phone: (949)-203-3971
Fax: (949)-203-3972

Ontario Office
Lakeshore Center
3281 E. Guasti Road,
7th Floor
City of Ontario, California, 91761

Riverside Office
Turner Riverwalk
11801 Pierce Street,
Suite 200
Riverside, California, 92505
Phone: (909)-996-5644

San Diego
Emerald Plaza
402 West Broadway,
Suite #400
San Diego, California, 92101
Phone: (619)-885-2070

Aliso Viejo
Ladera Corporate Terrace
999 Corporate Drive,
Suite 100
Ladera Ranch, California, 92694
Phone: (714) 721-3822