California adopts paid family leave. (An Advertising Supplement to the Los Angeles Business Journal: Los Angeles Law Firms).

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, however, have 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 work 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 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 than 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 any 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, 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 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, nonoccupational 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 will 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 before receiving FTDI benefits and, if so, what amount of vacation 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.

Ms. Grover is one of the lead partner's in Haight, Brown, & Bonesteel's employment law department. She represent employers in a wide range of employment related matters. Her counseling typically focuses on preventive employment practices, designed to assure compliance with applicable laws and regulations and to provide the best defensive posture in the event of litigation. She can be reached at [e-mail].