An HR Advisor Demystifies Parental Leave

If you’re preparing to take leave, for example parental leave, and you find yourself completely confused about what you’re entitled to—trust me, you’re not alone. Leave policies are among the most confusing to individuals and organizations alike. Since almost all of my clients request training on the topic, I figured I would write an article to try to demystify it.

A few notes before we dive in:

• I’m assuming that most of you are reading this as employees, but the information is essentially the same for employers. I also assume most employees and employers have aligned interests: get people the leave they need to take care of their families, while maximizing the organization’s resources (and of course, following the law).
• I am focusing this article on California leave policies, with one San Francisco-specific call-out, but many states have equivalent laws, so this framing should still be helpful for those of you navigating leave in states other than California.
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If there’s one thing you take away about California leave policies, it should be that time doesn’t equal money. In other words, there are a set of laws and policies governing how much time you can take off work and have your job protected, and there are a different set of laws and policies related to how you get paid during your time off. While many of those laws intersect (e.g., you can get Paid Family Leave (PAY) while on California Family Rights Act Leave (TIME OFF)), in many cases you can get one without the other (i.e., job protected time but no pay, or pay but without the legal job protection). So bottom line: If you’re trying to figure out what you’re entitled to in an upcoming leave, make sure you’re clear on both how much job-protected TIME you get and how much PAY.

Let’s start with the time component. Here are the primary laws/policies related to job-protected time off:

• Pregnancy Disability Leave (PDL): as long as you are medically disabled by pregnancy or childbirth up to 4 months, can be taken intermittently, for employees of organizations with 5+ employees

• California Family Rights Act (CFRA): 12 weeks per 12 month period, can be taken intermittently, some eligibility criteria (e.g., how long you’ve worked with your employer), for employees of organizations with 5+ employees

• Family & Medical Leave Act (FMLA): 12 weeks per 12 month period, can be taken intermittently, some eligibility criteria (e.g., how long you’ve worked with your employer), for employees of organizations with 50+ employees‍

• Note: CFRA and PDL are basically California-specific versions of FMLA, with a lower threshold for number of employees. If you work at an organization with 50+ employees, this essentially means you’re double protected, not that you get double the time off. The FMLA protection usually just runs concurrently with either PDL or CFRA.

• All other company-provided leaves (e.g., bereavement leave, jury duty leave)

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Here are the primary ways you can get paid while on leave:

• State Disability Insurance (SDI) - paid by the state, as long as you’re disabled, typically 60-70% of your gross wages up to a cap, some eligibility criteria (e.g., have paid into CASDI from paycheck deductions within a certain time period, be employed or actively looking)

• Paid Family Leave (PFL) - paid by the state for 8 weeks, typically 60-70% of your gross wages up to a cap, similar eligibility criteria as SDI

• Vacation / Sick Time - paid by your employer from your accruals (which means you are expending that balance and therefore won’t have access to whatever amount you use when you return to work), typically 100% of your gross wages or 30-40% of your gross wages on top of the state payments

• Family Leave Top-Off - paid by your employer voluntarily (this can range from nothing, to a 6-week “top-off” in small companies to make your salary whole on top of the state payments, to up to 16 weeks or more fully paid leave in larger companies)

• SF Paid Parental Leave Ordinance - a required top-off of the state payment for the 8 weeks of PFL to get you to 100% of your gross wages (though the company can use up to 2 weeks of one’s accrued sick or vacation time to cover some of that), paid by your employer but mandated by SF with certain eligibility criteria (e.g., 20+ employees worldwide, you work at least 40% of your time in SF)

So how do all of these pieces come together? Of course it depends on your specific leave (e.g., leave to give birth, leave as the non-birthing parent, leave to take care of an ill family member) and your employer’s policies (e.g., top-off to state payments, fully paid leave). But here are some common examples, with a short description of each.

Example 1: 

Person A goes out on PDL as soon as they become disabled, which can be up to 4 weeks before giving birth, and typically 6-8 weeks after birth (can be extended up to 4 months). Their FMLA job-protected time runs concurrently with PDL. As soon as they are no longer disabled per their doctor, they go onto CFRA (also known as “baby bonding”) for 12 weeks. After CFRA is over, their job is no longer legally protected, though many companies would voluntarily extend (unpaid) leave. So that’s the TIME component.

Now for the PAY component: While they are disabled, they can get SDI, which is typically 60-70% of their wages earned 5 to 18 months before their disability starts (payment estimator here). There is a one-week waiting period before the SDI starts, so to be paid that week requires either using their accrued sick or vacation time, or some other form of company payment. Once they are no longer disabled, they can get PFL for 8 weeks, at the same rate as SDI.

During this whole time, if they want to make the equivalent of their full salary, the options include: the company voluntarily topping them off or using their accrued sick or vacation time until it is used up. After that, if they have CFRA time remaining, they can stay on unpaid (but job-protected) leave. Variations of this example can include: a longer PDL for complicated pregnancy/birth (and therefore longer SDI), more company-paid leave, and San Francisco’s mandated Supplemental Compensation (FAQs here).

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Example 2:

Person B, the non-birthing parent, is taking time off to care for the baby. The situation is similar to example 1 minus the disability; as such, they are not eligible for Pregnancy Disability Leave or State Disability Insurance. Instead, they get 12 weeks off from CFRA (and FMLA runs concurrently if they are eligible). For 8 of those 12 weeks, they can get PFL, with the same payout rate as for SDI in the previous example. And again similar to the example above, their pay can be “made whole” through a combination of company pay and sick or vacation accruals. Note that CFRA can be taken intermittently, and the same is true above. So for example, they could take 6 weeks off right when the baby is born, and 6 weeks later when their partner goes back to work. It just needs to be used within one year of the child’s birth or placement.

If one were to take time off to care for a sick family member, the leave would look very similar to this, though likely without any company top-off.

Finally, here are a few pointers to keep in mind:

Benefits

• Benefits must continue during PDL, CFRA, and FMLA leaves

• Accrual of sick and vacation time generally continues if the employee is on paid leave, and it generally ceases if they are on unpaid leave (but it is company-specific)

Timing

• PDL can extend up to 4 months (based on doctor’s certification)

• PDL, CFRA, and FMLA leaves can be taken intermittently

• Employers can of course grant unpaid leave longer than these CA-mandated leaves

Documentation and Paperwork

• Employers can require medical certifications for an employee’s need to take PDL or CFRA

• The employee is responsible for submitting to the state for SDI or PFL and sending the employer the statements, at which point the employer will process any top-off

• If you inform your employer that you need to go out on leave, ideally they would walk you through a spreadsheet similar to the ones above, personalized to you, and email it to you, along with any documentation you need to complete. If you need to pay a benefits premium while on unpaid leave, the employer should be responsible for reminding you

And that’s all! Once you’re ready to apply for the state’s partial wage-replacement benefits, go to EDD’s website, and of course, partner closely with your company’s HR.