CBA Publications >> CBA Regulatory Compliance Bulletin >> Vol 2002 No.22 November 14, 2002

Vol 2002 No. 22 November 14, 2002

Summary of Family Temporary Disability Insurance Program

With the signing of SB 1661, California becomes the first state to require paid leave to employees in connection with the care of an injured or sick family member, or the birth, adoption, or foster care placement of a new child. In passing SB 1661, the legislature determined that the majority of California workers are unable to take family care leave because they are unable to afford leave without pay.

Background. California' state disability insurance (SDI) program, which is financed through mandatory payroll contributions by employees, replaces a portion of a sick or injured employee's earnings during disability leave from work. The Employment Development Department (EDD) considers a normal pregnancy a disability, allowing up to four weeks pre-partum and six weeks post-partum leave without requiring a worker to obtain additional information from a physician beyond stating that the disability is for a normal pregnancy.

The California Family Rights Act ("CFRA") permits an employee to take up to 12 workweeks to care for a baby or family member. CFRA applies to employers with 50 or more employees and to employees with more than one year of employment and who have worked at least 1,250 hours during the previous 12-month period. Leave taken pursuant to the CFRA is unpaid. Employers with 50 or more employers may also be subject to the federal Family Medical Leave Act, whose provisions are similar to the CFRA.
Additionally, the Fair Employment and Housing Act makes it an unlawful employment practice for an employer to refuse to allow a female employee affected by pregnancy, childbirth, or related medical condition to take leave on account of pregnancy for a reasonable period of time, not to exceed four months.

Summary of FTDI. Under the new Family Temporary Disability Insurance ("FTDI") program created by SB 1661, California employees are eligible to receive approximately 55% of their salary for six weeks within a 12-month period while on family care leave. The program applies to all employers regardless of size, and will be funded by mandatory employee payroll deductions into the California state disability insurance system ("SDI"). The average additional employee contribution, beginning in January 2004, is expected to be about $27 a year per employee. Employers have no monetary obligations under the new law.

Definitions. The term "family care leave" is defined as (i) leave taken because of the birth of a child of the employee (or the employee's domestic partner), adoption of, or assumption of foster care of, a child, or because of the serious health condition of the child of the employee, spouse or domestic partner; or (ii) leave taken to care for a parent, spouse, or domestic partner with a serious health condition.

"Family member" means child, parent, spouse, or domestic partner.

"Parent" is defined as a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.

"Domestic partners," defined in Section 297 of the Family Code, refer to two adults who have "chosen to share one another's lives in an intimate and committed relationship of mutual caring."

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or continuing supervision by a health care provider.

Other terms. The maximum amount payable under the FTDI program is six times the employee's "weekly benefit amount" as the term is used in connection with SDI payments. A waiting period of 7 consecutive days (during which the employee is taking family care leave) applies before the employee is entitled to receive FTDI benefits.

An employer may require an employee to take up to two weeks of earned but unused vacation leave prior to the taking of FTDI leave, in which instance, up to one week of such vacation time will be applied to the waiting period.

As with SDI benefits, an employee seeking FTDI benefits must obtain a certificate from a physician, which must contain (i) a diagnosis and diagnostic code prescribed in the International Classification of Diseases, or, where no diagnosis has yet been obtained, a detailed statement of symptoms; (ii) the date, if known, on which the condition commenced; (iii) the probable duration of the condition; (iv) an estimate of the amount of time the employee is needed to care for child or family member; and (v) a statement that the serious health condition warrants the employee's provision of care, which includes providing psychological comfort, arranging for care, and directly providing or participating in the medical care. The EDD will develop a standard certification form.

Individuals are not entitled to receive FTDI benefits together with certain other benefits, including state or federal unemployment pay, certain workers compensation and state disability benefits, or where another family member is able and available to provide care for the same period of time that the employee is providing the required care. If the employee is entitled to take leave under the FMLA or the CFRA, the employee must take FTDI leave concurrent with leave taken under those laws.

SB 1661 will be effective on January 1, 2004 (meaning payroll deductions commence on this date), and benefits will be payable under the FTDI program for leave beginning on or after July 1, 2004.