Caring for a Child With a Serious Illness: Your Workplace Rights

  1. You May Be Eligible for Job-Protected Time Off to Care For Your Child’s Serious Illness.

    If you meet certain requirements*, you have the right to take up to 12 weeks of unpaid leave from work per year to care for your child’s serious health condition.  In most cases, after your leave, you must be returned to your same or equivalent job.  Your employer cannot count your leave against you in any employment decision.

    You do not have to take your 12 weeks of family medical leave all at once.  If your child has an acute condition and you only need to use 3 weeks of leave during and following her hospitalization, you may take only 3 weeks, and 9 weeks of leave will remain available to you.  If your child has a chronic condition that flares up periodically, you can use leave in smaller increments or reduce your work schedule to accommodate your need to care for him.  For example, you may take 1 day or 1 hour a week to take your child to a weekly medical appointment.  Your job will also be protected if you need to leave work due to your child’s medical emergency.  Only the time you use will be counted against your 12-week entitlement each year.

    *To qualify for time off under the federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA), you must have worked for your employer for 1 year, your employer must have at least 50 employees within 75 miles of where you work, and you must have worked 1250 hours (about half-time) in the year before your leave begins.

  2. You May Be Entitled to Continuation of Health Insurance Benefits During Your Leave to Care for Your Child.

    If you are eligible for time off under the Family and Medical Leave Act and California Family Rights Act*, your employer must continue your health insurance benefits, if you have them, during your absence.  Your employer must continue to pay for your health insurance benefits at the same level and under the same conditions as would have been provided if you had not taken leave.  If your employer pays a portion of the premium and you pay a portion, you will need to continue paying your portion during your leave. 

  3. You May Be Eligible to Receive Pay While Taking Time Off to Tend to Your Ill Child.

    Under California’s Paid Family Leave program, any employee who pays into the State Disability Insurance Program may receive up to 6 weeks of partial wage replacement benefits per year while caring for a seriously ill child.  (Check your paystub to see if you contribute to “SDI.”)  After serving a 7-day waiting period, you will receive up to 55% of your weekly wage.  To apply, contact the Employment Development Department at http://www.edd.ca.gov/Disability/PFL_How_to_File_a_Claim.htm

    Neither California nor federal law requires employers to provide paid sick days to employees.  (Workers in San Francisco do have the right to Paid Sick Leave.  See below for more information.)  However, under California’s Kin Care Law, if your employer provides paid sick days, you must be allowed to use up to half your annual accrued sick leave to tend to your child’s illness.  KinCare leave may be used for an ordinary illness; a serious health condition is not required.

  4. If You Work in San Francisco, You May Have the Right to Paid Sick Days and to Request Workplace Flexibility to Care for Your Child.

    If you work in San Francisco, you are entitled to earn paid sick days to care for your ill child.  Time off under San Francisco’s Paid Sick Leave Ordinance may be used for an ordinary illness or to receive medical care, treatment or a diagnosis; it need not be a serious health condition. You can also use Paid Sick Leave if you need time off for a child’s medical emergency.

    Beginning in 2014, workers in San Francisco have the right to request flexible or predictable work arrangements to accommodate their caregiving responsibilities.  The San Francisco Family Friendly Workplace Ordinance grants employees who work in San Francisco for companies with 20 or more employees the right to request a flexible or predictable work arrangement to accommodate their caregiving responsibilities.  The employer must consider the request, but may deny it for a good faith business reason.  An employee may not be retaliated against for requesting or using a flexible or predictable work arrangement.  Additionally, the employer may not discriminate against a worker based on her status as a person with caregiving responsibilities.

    The chart below shows how FMLA/CFRA leave and Paid Family Leave work together while caring for a seriously ill child:

    Figure.1: How FMLA/CFRA leave and Paid Family Leave work together while caring for a seriously ill child

    Timeline showing the entitlement to leave for an employee who is caring for a seriously ill child

  5. Your Employer Cannot Discriminate Against You Because Your Child Has a Disability.

    Your employer may not discriminate against you (treat you worse) simply because you are “associated with” a child with a disability.  This form of discrimination is unlawful under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act.  For example, an employer may not refuse to hire a person whose child has a disability because the employer assumes the applicant would have to use frequent leave or arrive late due to caregiving responsibilities.

    If you work in San Francisco for an employer with 20 or more employees, beginning in 2014 the Family Friendly Workplace Ordinance will protect you from discrimination based on your status as a caregiver.  

  6. If You Develop Your Own Serious Illness or Disability While Caring For Your Child, You May Have Additional Workplace Rights.

    If you develop your own illness or disability in the course of caring for your child (for example, you are diagnosed with depression or anxiety due to your child’s illness, or you injure your back while lifting your child), you may have additional employment rights relating to your own condition.  You may be entitled to up to 12 weeks of job-protected time off for your own serious health condition under the Family and Medical Leave Act and California Family Rights Act. To qualify for this leave, you must have worked for your employer for 1 year, your employer must have at least 50 employees within 75 miles of where you work, and you must have worked 1250 hours (about half-time) in the year before your leave begins.

    In addition, under the California Fair Employment and Housing Act and the federal Americans with Disabilities Act, you may not be discriminated against based on your own disability, and employers must provide reasonable accommodations to workers with disabilities unless the accommodation creates an undue hardship for the employer.  Reasonable accommodations may include time off work (even if you are not eligible for FMLA/CFRA, or even if you exhausted your 12 weeks of FMLA/CFRA leave), a change in schedule, transfer, a structural change in the workplace, or a modification of a workplace policy.

    If you pay into the State Disability Insurance fund, you may also be entitled to partial wage replacement benefits from the Employment Development Department while you are unable to work due to your own illness or injury. (Check your paystub to see if you contribute to “SDI.”)  After serving a 7-day waiting period, you will receive up to 55% of your weekly wage.  To apply, contact the Employment Development Department at http://www.edd.ca.gov/Disability/DI_How_to_File_a_Claim.htm.  

    If you work in San Francisco, you may be entitled to Paid Sick Leave for your own illness.   

  7. If You Believe Your Workplace Rights Have Been Violated, You May File a Complaint with a Government Agency; Strict Time Limits Apply.

    If you think your employer has violated your rights, you may file an administrative complaint with the appropriate government agency.  Time limits apply.  You should take action immediately if you believe your rights have been violated.

    For more information about the application of the law to your particular situation, call the Work and Family Project of the Legal Aid Society-Employment Law Center at 800-880-8047 or www.las-elc.org/work-family.   

    For More Information/Advice About Your Family and Medical Leave Rights, Contact Legal Aid Society-Employment Law Center’s toll-free Work & Family Helpline at 800-880-8047.

For further information about your employment rights, contact the Work & Family Project.

Disclaimer

This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.