Feature
by Margaret J. Grover
Beginning in July 2004, California will become the first state in the nation to provide paid Family Temporary Disability Insurance (FTDI) leave. Nearly half of the other states have also considered providing paid family leave. No doubt, other states will follow California’s lead and adopt provisions for paid family leave in the next few years.
Length of FTDI Leave
Under California’s disability insurance program,
employees will be eligible for up to six weeks of compensated
time off from work in order to care for a seriously
ill child, spouse, parent, domestic partner or to bond
with a new child.
Eligibility for FTDI Leave
There are no minimum employer size or employee service
requirements; any employer that has employees covered
by California State Disability Insurance (SDI) or a
voluntary plan is covered by FTDI. The employee can
take FTDI leave when he or she is needed to provide
or participate in the family member’s medical
care, to provide psychological comfort or to arrange
third-party care. An employee is not eligible for FTDI
leave on any day that another family member is able
and available to provide the required care.
Payment of Benefits
Employees will receive FTDI benefits at the same rate
they currently receive SDI benefits for their own disability.
Typically, this is just over half of the employee’s
wages, with a maximum weekly amount. The costs of the
FTDI benefits will be paid through an increase in employee
SDI contributions beginning on January 1, 2004.
Waiting Period
There is a seven-day waiting period for each FTDI leave
before the employee is eligible to receive benefits.
FMLA/CFRA Leave Issues
If the employee is entitled to leave under the federal
Family and Medical Leave Act (FMLA) or the California
Family Rights Act (CFRA), the FTDI leave will not extend
the amount of protected time off. Instead, the FTDI
leave will run concurrently with the FMLA or CFRA leave.
FTDI leave is different from FMLA and CFRA because there
are no minimum employer size or employee service requirements;
any employer that has employees covered by SDI or a
voluntary plan is covered by FTDI. In addition, the
FTDI leave statute does not carry a requirement that
the employee provide advance notice of the need for
leave. Employers should be aware, however, that the
FTDI provides no guarantee that the employee will be
able to return to work after taking the FTDI leave.
Any right to return to work will be governed by the
FMLA, CFRA or public policy. Employers can apply policies
that prohibit excessive absenteeism to FTDI leave in
the same manner that the employer applies its absenteeism
policy to the employee’s absence. Although there
is no right to reinstatement, employees will certainly
assert that a refusal to reinstate following FTDI is
a termination in violation of public policy.
Medical Certification
Employees may be required to provide medical releases
for FTDI leave similar to those required for the employee’s
own medical condition. Employers may require a certificate
from the treating physician or practitioner affirming
that the employee is needed to provide care for his
or her child, parent, spouse or domestic partner and
provide an estimate of the amount of time that the employee
will be needed to care for that family member.
Use of Vacation
Employers may require employees to use up to two weeks
of accrued vacation leave before that employee receives
disability benefits for family care leave. If the employer
elects to require use of vacation, one week of the vacation
time will apply to the seven-day waiting period. In
most instances when the employer requires use of vacation
leave, the employee will be eligible for FTDI payments
immediately after receiving her or his vacation pay.
Notification Required
Employers will be obligated to notify their employees
of the ability to take FTDI leave. Beginning on January
1, 2004, the director of the FTDI Program will publish
a notice informing workers of their disability insurance
rights and benefits due to the employee’s own
sickness, injury, or pregnancy, or the employee’s
need to provide care for any sick or injured family
member or new child who is unable to care for himself
or herself. Employers must give this to each new employee
hired on or after January 1, 2004, and to each employee
leaving work on or after July 1, 2004, due to pregnancy,
non-occupational sickness or injury, or the need to
provide care for any sick or injured family member or
new child who is unable to care for himself or herself.
Planning for FTDI Leave
Employers should anticipate that the ability to receive
some pay during time off might dramatically increase
the use of time off to care for family members. Employers
who are not covered by the FMLA or CFRA will probably
experience the greatest impact from FTDI leave, as employees
who had no right to take time off to care for family
members will now believe that FTDI leave is protected
time off for that purpose.
Even before the FTDI leave becomes effective, employers should review their employee handbooks, leave policies and workplace notices to make sure that the FTDI leave and notice provisions are adequately covered. Employers must decide whether they will require employees to use vacation leave before receiving FTDI benefits and, if so, what amount of vacation leave will be used. In addition to the statutorily required notices, employers should determine, in advance, what guidelines they will follow in reinstating employees who take FTDI leave.
Reprinted courtesy of the PPMA news. The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Ms. Grover is a partner in the San Francisco office of Haight, Brown & Bonesteel, LLP, where she focuses on advising employers in preventing and defending claims by employees. She can be reached at 415-986-7700. Copyright © 2004.