What Employee Leaves Are Legally Protected in California?

What Employee Leaves Are Legally Protected in California?

Why the Answer Is More Complex and Fact-Specific Than Most Employers Realize

One of the most common questions employers ask is deceptively simple: “What employee leaves of absence are legally protected?” There is no simple, formulaic checklist that applies universally to every circumstance. Legally protected employee leave is created by overlapping federal, state, and local laws and ordinances, and whether an absence is legally protected is frequently a fact-specific, individualized determination. The answer may depend on eligibility requirements, employer size, timing, notice, and the underlying reason for the absence. Whether an absence is excused or unexcused does not depend solely on whether the employee uses the correct legal terminology, produces a doctor’s note at the outset, or perfectly follows internal call-in procedures.

In many situations, leave protection is triggered by the underlying facts the employer knows or reasonably should know, not by labels or paperwork alone. What follows is an overview of the most common forms of legally protected leave under federal law, California law, and certain public health exclusion rules. This article is intended as a practical reference point for employers, but it is neither exhaustive nor a substitute for a fact-specific legal analysis of any particular absence.

Federal Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act provides up to twelve workweeks of unpaid, job-protected leave in a twelve-month period for eligible employees of covered employers. Covered employers are those with fifty or more employees within a seventy-five-mile radius and all public employers of any size. Employees must meet minimum service and hours requirements. Qualifying reasons include the employee’s own serious health condition, care for a spouse, parent, or child with a serious health condition, bonding with a new child, and certain military-related exigencies. FMLA also provides up to twenty-six weeks of leave to care for a covered servicemember with a serious injury or illness. See 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825.

California Family Rights Act (CFRA)

California’s Family Rights Act (CFRA) expands upon the FMLA and applies to employers with five or more employees. CFRA provides up to twelve workweeks of job-protected leave for an employee’s own serious health condition, bonding with a new child, or care for a qualifying family member. California defines “family member” broadly and includes parents-in-law, grandparents, grandchildren, siblings, and a designated person. CFRA does not cover pregnancy-related disability, which is addressed separately under California law. See Government Code § 12945.2; 2 C.C.R. §§ 11087–11098.

Similar principles apply under both CFRA and FMLA when an employer becomes aware that an absence may qualify as protected leave. An employee is not required to conclusively establish eligibility before the leave is provisionally protected. Once the employer has information suggesting the absence may be CFRA- or FMLA-qualifying, the employer must treat the leave as potentially protected while the certification process is pending, rather than automatically classifying the absence as unexcused.

Both CFRA and FMLA regulations require employers to allow at least fifteen calendar days for an employee to return a requested medical certification, absent extenuating circumstances. During that regulatory window, the employer may not deny the leave or treat the absence as unprotected solely because the certification has not yet been received. See 2 C.C.R. § 11091(b)(1); 29 C.F.R. § 825.305(b).

Once the employer receives sufficient information to determine whether the leave qualifies, the employer has an affirmative duty to designate the leave in writing. Under both CFRA and FMLA, the designation notice must be provided within five business days of receiving the medical certification or otherwise obtaining enough information to determine that the leave is qualifying. Failure to timely designate leave can constitute unlawful interference with statutory rights. See 2 C.C.R. § 11091(d); 29 C.F.R. § 825.300(d)(1).

Pregnancy Disability Leave (PDL)

California requires employers with five or more employees to provide up to four months of job-protected leave for employees disabled by pregnancy, childbirth, or related medical conditions. Pregnancy Disability Leave (PDL) is separate from CFRA and may run before CFRA bonding leave, allowing eligible employees to take both. Although employers may request medical certification in appropriate circumstances, the right to PDL does not depend on the employee’s use of specific terminology or advance notice. See Government Code § 12945; 2 C.C.R. §§ 11035–11049.

Reproductive Loss Event Leave

California law provides eligible employees with protected time off following a reproductive loss event. This includes circumstances such as miscarriage, stillbirth, failed adoption, failed surrogacy, or an unsuccessful assisted reproduction procedure. Employers with five or more employees must provide up to five days of job-protected leave for a qualifying reproductive loss event, and the leave must be taken within a specified period following the event. Although the leave is generally unpaid, employees may use available accrued paid sick leave or other paid time off if permitted by policy. See Government Code § 12945.6.

Disability Leave as a Reasonable Accommodation Under the ADA and FEHA

Unpaid leave may also be required as a reasonable accommodation for a qualified employee with a disability under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA). Unlike FMLA or CFRA, disability accommodation leave is not limited to a fixed number of weeks and depends on an individualized interactive process.

Under the ADA, an employer’s duty to engage in the interactive process may be triggered when the employer knows or has reason to know that the employee has a disability and may need an accommodation, even if the employee does not expressly request one. The EEOC has explained that this obligation may arise where the disability and resulting limitations are apparent, or where the employer reasonably understands that a medical condition is affecting the employee’s ability to work. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002).

California law goes further. FEHA regulations impose an affirmative duty on employers to engage in a timely, good-faith interactive process once the employer becomes aware of the need for a reasonable accommodation, regardless of whether the employee submits a formal request or uses legal terminology. The duty is triggered by knowledge of the need for accommodation, not by the employee’s compliance with internal procedures. See 2 C.C.R. § 11069(a)-(b).

Because the interactive process is intended to be flexible and ongoing, it is often advisable for employers to provide provisional accommodations while medical information is being clarified. Temporarily allowing medical leave, modified duties, or schedule adjustments while awaiting medical certification is consistent with FEHA’s requirement that employers not delay or obstruct the interactive process. Neither FEHA nor the ADA requires an employer to withhold accommodation until documentation is received, and unnecessary delay can itself create liability. See 2 C.C.R. § 11069(b); EEOC Enforcement Guidance (Oct. 17, 2002).

California law also provides certain protections for employees who voluntarily seek treatment for alcohol or drug rehabilitation. Employers with twenty-five or more employees must make reasonable efforts to accommodate an employee’s request for time off to participate in an alcohol or drug rehabilitation program, provided the accommodation does not impose an undue hardship. Employees may be required to use available accrued paid leave for this purpose, and employers are prohibited from retaliating against employees for seeking rehabilitation treatment. See Labor Code §§ 1025–1028.

Paid Sick Leave Under California and Local Law

California’s Healthy Workplaces, Healthy Families Act requires employers to provide paid sick leave that employees may use for their own illness or preventive care, or to care for specified family members. Use of accrued paid sick leave is a protected activity, and employers may not retaliate against employees for lawful use. Many local ordinances impose more generous requirements. See Labor Code §§ 245–249. See our more expansive article about California’s paid sick leave law here.

Workers’ Compensation and Industrial Injury Leave

Absences related to industrial injuries are protected through multiple legal frameworks. Employees are entitled to workers’ compensation benefits, and employers may not retaliate against employees for filing or intending to file a claim. An industrial injury may also trigger rights under FMLA, CFRA, ADA, or FEHA depending on the circumstances. See Labor Code § 132a.

Military Leave and Military Family Leave

Federal and California law protect employees who take leave for military service, training, or related obligations. The Uniformed Services Employment and Reemployment Rights Act provides job protection and reinstatement rights, and California law supplements those protections. See 38 U.S.C. § 4301 et seq.; Cal. Mil. & Vet. Code §§ 389–395.01.

California law also protects employees who are volunteer members of the California Wing of the Civil Air Patrol when they are called to respond to an emergency operational mission. Employers with more than 15 employees must provide eligible employees up to ten days of unpaid Civil Air Patrol leave per calendar year to participate in such missions, subject to notice and verification requirements, and must reinstate them to the same or equivalent position upon their return. Employers may not require employees to exhaust other paid leave before taking this leave. See California Labor Code §§ 1500–1507.

California further provides protected leave rights for employees who serve as volunteer firefighters, reserve peace officers, or emergency rescue personnel. Non-exempt employees are entitled to take unpaid time off to perform emergency duties, and qualifying employees may also take protected leave for related training. Employers are prohibited from retaliating against employees for taking leave under these emergency responder statutes. See Labor Code §§ 230.3 and 230.4.

Jury Duty, Witness, and Court-Related Leave

California law prohibits employers from retaliating against employees for serving on a jury or complying with a subpoena or court order. See Labor Code § 230; Government Code § 12945.8.

Crime Victim, Domestic Violence, Sexual Assault, and Stalking Leave

California law provides protected leave and accommodation rights for employees who are victims of domestic violence, sexual assault, stalking, or certain other crimes. Protected activities include seeking medical attention, obtaining restraining orders, participating in safety planning, and cooperating with law enforcement. See Labor Code §§ 230, 230.1; Gov. Code § 12945.8.

School and Childcare-Related Leave

Employers with twenty-five or more employees must allow eligible employees to take time off to participate in specified school activities or address certain childcare emergencies. See Labor Code § 230.8.

Voting Leave and Elections Officer Service Leave

Employees must be allowed paid time off to vote if they lack sufficient time outside working hours, and retaliation is prohibited. See Elections Code § 14000.

California law also protects employees who take time off to serve as an elections officer (poll worker). Employers may not discharge or discriminate against an employee for taking leave to perform this civic duty when the employee has been appointed as an elections official. See Elections Code § 12312.

Organ and Bone Marrow Donation Leave

California provides protected leave for organ and bone marrow donation, with paid and unpaid components depending on employer size. See Labor Code §§ 1508–1513.

Bereavement Leave

Employers with five or more employees must provide up to five days of job-protected bereavement leave following the death of a qualifying family member. See Government Code § 12945.7.

Public Health and Safety Exclusion Leaves

Some absences are protected because the law requires the employee to be excluded from work. California’s Retail Food Code mandates exclusion of food employees who exhibit certain symptoms or diagnoses that pose a risk of foodborne illness. These exclusions are not discretionary and may not be treated as misconduct. See Health & Safety Code §§ 113949.1–113949.2.

Public health orders and Cal/OSHA regulations have also required exclusion from work following infectious disease exposure or illness, including COVID-19 in certain circumstances. While many emergency mandates have expired, Cal/OSHA’s general duty and exclusion rules continue to apply where workplace transmission risks exist. See 8 C.C.R. § 3205.

Why “Unexcused Absence” Is a Legal Conclusion, Not a Starting Assumption

An absence should not always be labeled “unexcused” simply because the employee did not provide a doctor’s note, did not formally request leave in advance, or did not immediately return medical certification. Many leave protections attach based on facts known to the employer, even before documentation is complete. Disability accommodation duties, CFRA and FMLA protections, paid sick leave rights, reproductive loss leave rights, rehabilitation accommodation rights, and public health exclusion rules can all apply while information is still being gathered. Employers should pause discipline, provisionally protect the absence, and complete the required interactive, certification, and designation processes before reaching conclusions. Misclassifying protected leave as unexcused is a leading source of retaliation, interference, and wrongful termination claims.

The Core Takeaway

Ultimately, whether an absence is legally protected rarely turns on a single factor. It does not depend solely on whether a doctor’s note was immediately provided or whether the employee followed a perfect script. Employers are expected to evaluate the underlying facts, recognize potential legal triggers, and engage in clarification or interactive processes where appropriate. Treating unscheduled absences as automatically unprotected until proven otherwise is a common and expensive mistake.