Contact Us For Your FREE Consultation: mmarxen@marxenlaw.com | (619) 362-5219

DISCLAIMER: This blog is made available by the lawyer for informational/educational purposes only and the lawyer does not warrant that the information will be updated/current as of the date you access it. The blog is in no way intended to provide all of the information required for your needs but rather is intended to provide a general understanding of the law and/or issue discussed, not to provide specific legal advice. By accessing this blog, you understand that there is no attorney-client relationship between you and the publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Additionally, all information contained on this blog is attorney-work product and may not be copied, pasted, and represented as the work product of another individual.

I am Unable to Work: What Are my Options?

By: Marissa C. Marxen

September 27, 2017

Qualifying employees have several options for taking time off work to attend to medical needs or the care of family. Such individuals may pursue unpaid leave through the avenue of family leave or Paid Family Leave (“PFL”) through state disability insurance (“SDI”), or under certain circumstances, workers’ compensation.

A leave of absence is granted when an employee has a necessary absence from duty, which is supported by a physician’s or other licensed practitioner’s medical certification. The California Family Rights Act, (Cal. Gov. Code § 12945.2, et seq.) (the “CFRA”), and the federal Family and Medical Leave Act of 1993, (29 U.S.C. § 2601, et seq.) (“FMLA”) apply to employers with fifty (50) or more employees. Both statutes require qualifying employers to provide time off for (1) personal illness/serious health condition; (2) attending to the illness of a qualifying family members; and (3) the birth or adoption of a child. If you qualify as an eligible employee, you can take up to twelve (12) weeks off of work during any twelve (12) month period. (Cal. Code Regs. tit. 2, § 11087(h); Cal. Gov’t Code § 12945.2(p) & (s); 29 U.S.C.A. § 2612; 29 C.F.R. § 825.701; Cal. Gov’t Code § 12945.2(p) & (s).) In order to qualify, an employee must (1) have worked for the employer for 1,250 hours in the previous twelve month period and (2) work for an employer with 50 or more employees within a 75 mile radius. (Cal. Code Regs. tit. 2, § 11087(e); 29 U.S.C. § 2611(2) & 29 C.F.R. § 825.110.) An employer is not required to pay an employee during leave, but the employee may elect to use paid vacation time, paid leave, or paid time off so that he or she will be paid. (Cal. Code Regs. tit. 2, § 11092(b); 29 C.F.R. § 825.207.) Employers also have the option of requiring employees to use their vacation time, sick leave, or paid time off. (Cal. Code Regs. tit. 2, § 11092(b); 29 C.F.R. § 825.207.) Upon returning to work, the employee will be reinstated to the same or a comparable job unless there have been layoffs. (Cal. Code Regs. tit. 2, § 11089; 29 U.S.C.A. § 2614(a); 29 C.F.R. §§ 825.214 & 825.216)

A stress leave under the FMLA or CFRA is unpaid, but an employee may be eligible for SDI or workers’ compensation while on leave.

SDI is a wage continuation program for employees with non-work-related injuries or illnesses. Generally, employees can receive approximately fifty-five percent (55%) of their pay (from $50.00 to as much as $1,173.00 weekly) for up to six (6) weeks to qualifying employees.

Finally, under California’s workers’ compensation law, an eligible employee may receive payment for a work-related psychiatric injury if he or she has been diagnosed with a mental disorder requiring treatment or a medical leave. (Cal. Lab. Code § 3208.3.) Additionally, if the injury was truly job related, the employer should have provided notice to the employee that he or she may be eligible for workers compensation benefits.

The below chart provides an brief summary of some pertinent questions employees may have: