Protected Leave and Excessive Absenteeism

Questions often arise regarding the various laws governing leave use and whether a member’s use of leave is considered excessive.  The information below is adapted from the San Bernardino County Supervisors' Guide to Employee Relations.

Federal and State regulations protect employees while they are out on a qualified leave of absence. Therefore, when calculating excessive absenteeism, the following absences must be excluded:

·      Each Calendar Year, up to ½ of the employee’s annual Paid Sick Leave accruals is protected when used for the employee’s own illness, injury or preventative care, or for a covered family member’s illness, injury or preventative care.

·      Leave qualifying under the Family Medical Leave Act (FMLA) allows County employees a maximum of 12 weeks of leave per rolling calendar year for:

o   Absence due to employee’s own serious health condition, the serious health condition of a child, spouse, or parent, defined as in excess of three (3) calendar days.

o   A Request for Extended Sick and Special Leave (RESSL) form must be completed.

§  Additionally, you may qualify for Short-Term Disability Insurance (STD) and a packet should be provided. See your Payroll Specialist or contact SEBA for information.

·      Absence related to a pre-approved intermittent leave due to employee’s serious, chronic health condition or that of a child, spouse or parent. Examples of a serious, chronic health condition include asthma, cancer, or a child with a disability. This absence does not necessarily need to be more than 3 consecutive days.

·      Any absence due to prenatal care and pregnancy.

·      Leave qualifying under the California Family Rights Act (CFRA)

·      Absences due to occupational injury or illness are also protected under FMLA/CFRA.

·      Military leave.

·      Absences due to time off for child-related activities.

·      Absences due to seeking relief as a victim of domestic violence for reasons that do not allow for use of Paid Sick Leave.

 The California Family Rights Act is the State regulation pertaining to leave time. CFRA provides the same protection as the Family Medical Leave Act (FMLA) with the following additional benefits:

·      Includes a maximum of 12 weeks of “bonding time” to care for a newborn child or placement of child for adoption or foster care.

o   In all situations, with the exception of the above, CFRA runs concurrently with FMLA, meaning that employees are allowed a total of 12 weeks per rolling calendar year under both FMLA and CFRA.

o   An employee can utilize up to 16 weeks of Pregnancy Disability Leave (PDL) in conjunction with up to 12 weeks of CFRA leave for a total of 28 weeks.

·      Includes employee’s absence to care for a domestic partner with a serious health condition.

FMLA, CFRA, and PDL are job-protection laws, which means they protect your right to return to work after your leave ends. Leave under these laws is unpaid unless you choose to use your accrued leave banks. The County cannot require you to use paid leave; however, you must code at least ¼ hour of paid leave each pay period for the County to pay the employer-paid portion of your healthcare benefits. You are responsible for the employee-paid portion of your healthcare benefits, either by coding enough paid leave time or by paying for those benefits directly.