Poor Attendance or Protected Leave, Which Is It?

California has some of the broadest protected leave laws in the US. This can make it challenging for employers to determine whether an employee has an attendance problem or is taking protected leave. The consequences for poor attendance and performance can be discipline, up to and including termination of employment, but employers may face a discrimination claim if an employee alleges their absence from work was a protected leave. So, the stakes are high when employers get this wrong!  

What Protected Leaves Are There in California? 

Federal and state protected leave laws that operate in California provide employees with a very wide range of protected leaves. A summary of the operative leave laws is below:  

A Few of the Federal Leave Laws 

• Family and Medical Leave Act (FMLA): Provides eligible employees with unpaid protected leave for certain family and medical reasons. 

• Americans with Disabilities Act (ADA): Prohibits discrimination against individuals with covered disabilities and requires employers to provide reasonable accommodations that do not create an undue hardship.    

A Few California State Laws 

Protected Leave and Wage Replacement 

• California Family Rights Act (CFRA): Like the FMLA, provides eligible employees with unpaid leave for family and medical reasons (other than pregnancy). 

• Pregnancy Disability Leave Law (PDLL): Provides leave and reasonable accommodation for pregnant employees with pregnancy-related disabilities. 

• Paid Family Leave Act (PFLA): Provides partial wage replacement for employees taking leave to care for a family member. 

Disability and Work-Related Injury Protections 

• Fair Employment and Housing Act (FEHA): Prohibits discrimination based on covered disability and provides for greater protections than the ADA. 

• Workers’ Compensation: Provides benefits to employees who are injured or become ill due to their job. 

Other California Leave Laws  

• California Elections Code section 14001: Provides up to two hours paid leave, plus additional protected time off, for employees to vote.  

• California Family-School Partnership Act: Provides leave for parents to participate in their children’s school activities. 

• California Healthy Workplaces Healthy Families Act: Requires employers to provide paid sick leave. 

• California Military and Veterans Code 394: Protects the employment rights of military service members. 

• Leave for victims of Domestic Violence, Sexual Assault or Stalking: Provides leave and reasonable accommodation for victims. 

• Leave for Alcohol or Drug Rehabilitation: Provides leave for employees seeking treatment. 

• Leave for Bone Marrow and Organ Donations. 

• Leave for Crime Victims to Testify. 

• Leave for Volunteer Firefighters. 

Employer Checklist: Determining If Leave Is Protected 

Step 1: Ensure you have a documented process for employees to notify you of an absence. This policy should include how notifications should be delivered and what details should be included.  

Tip: Set up an online form with checkboxes for common leave reasons for ease of tracking (i.e., paid sick leave, family leave, baby bonding, caregiver leave).  

Step 2: Analyze whether the leave is protected, by reflecting on the reasons for the absence provided by the employee against the protected leave categories in California. If the reason is unclear or potentially protected, you can (and in some circumstances should) consider whether you need to request additional information from the employee in a legally compliant manner.   

Step 3: Track and record the employee’s accrual and use of leave and paid time off. Your system should include methods for tracking the dates/times for leave, any documentation provided (alongside retention periods for the same), and access controls.  Certain leave laws also require designation letters to be sent to employees as well. 

Step 4: Communicate when the protected leave limits are approaching, or when the employee has unsatisfactory attendance.  

Communication can go a long way when it comes to managing employee expectations around protected leave, poor attendance, and the difference between the two.  

Here are some considerations and best practices when speaking with your employees about attendance: 

1. A little bit of trust goes a long way. For example, mandating doctor notes for every day of leave is cumbersome when it comes to your recordkeeping, and under many state leave laws is impermissible. It’s best to determine when medical certification is required and ensure it is legally compliant.   
2. Find a private space to discuss attendance issues.  
3. Be very specific when discussing attendance or leave. Stating ‘you’re always off sick’ or ‘you always take time off when the weather is good’ is not helpful and can lead to you developing a narrative (which may or may not be true). Dealing with facts is better communication and better for compliance.  
4. If the issue is poor attendance, clearly communicate what your attendance expectations are and the consequences for poor attendance (termination, lower bonuses or raises, etc.). It’s also a good idea to have an Attendance and Punctuality policy in your employee handbook. 
5. If the issue is related to protected leave, it is important to bear in mind that you cannot ask for specifics about medical conditions and/or diagnoses. When discussing accommodations, it’s best to keep the discussion broad and ask about what accommodation(s) the employee believes could enable them to perform the essential functions of their job (which typically includes regular attendance).  

Discussions around protected leave can be fraught with legal risk. We suggest consulting employment counsel before speaking with employees about protected leave (or potentially protected leave), and ensuring your HR team receives regular training.  

Reach out if you need help with employment compliance.  

• Employment Law