48 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com donate an organ. Employers must grant an additional unpaid leave of absence, up to 30 business days during a one-year period, for the purpose of organ donation.210 The one-year period is measured forward from the date an employee’s leave begins. Employers may require employees to use up to five days of earned but unused sick leave or vacation or paid time off during the initial bone-marrow donation leave, and up to two weeks of earned but unused sick leave, vacation, or other paid time off during the initial organ-donation leave. These leaves are not a break in service for purposes of any right to salary adjustments, seniority, or accrual of sick leave, vacation, or annual leave, and employers must maintain and pay for group health coverage during the leaves. These leaves do not run concurrently with FMLA and CFRA leaves. Employees returning from leave generally must be reinstated to their same position or an equivalent position.211 2.16 Bereavement Leave Effective January 1, 2023, California has added an unpaid bereavement leave entitlement for all California employees who have completed 30 days of employment with an employer.212 Eligible employees make take up to five days of unpaid leave for the death of their spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.213 Leave need not be taken all at once, but must be completed within three months of the death of the family member.214 If an employer has an existing bereavement leave policy, then leave under the employer policy and the new law run concurrently. If the employer policy does not provide a full five days of leave or does not cover certain family members now covered by law, then employees are entitled to additional unpaid time off in accordance with the new law.215 Employees may use available paid time off such as sick time, vacation, or PTO rather than taking the time off as unpaid.216 Employers may request that employees provide documentation to support their bereavement leave within 30 days of the first day of leave. Documentation may include a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.217 1 DFEH regulations define the four months as the equivalent of what the employee works in four months (17.33 weeks). If an employee’s hours vary from month to month, then the average number of hours per week is used, calculated by looking back for 17.33 weeks. 2 Cal. Code Regs. §§ 11042(a)(1), 11035(l). 2 DFEH regulations define pregnancy-related conditions to include morning sickness, preeclampsyia, pre- and post-natal care, and postpartum depression. 2 Cal. Code Regs. § 11035(f). 3 Gov’t Code § 12945(a)(1). 4 2 Cal. Code Regs. § 11043(a). 5 Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013) (employee placed on bed rest during most of her pregnancy, and then terminated after 19 weeks of pregnancy leave—three months before her due date—may have been entitled to entitled to additional, disability leave, under FEHA, if the employer could not show that the extended leave would have imposed an undue hardship on the company); 2 Cal. Code Regs. § 11047. 6 Gov’t Code § 12945(a)(2)(C). 7 2 Cal. Code Regs. § 11041(c). The position to which an employee is transferred must have the equivalent pay and benefits as the employee’s regular job. 8 Gov’t Code § 12945(a)(2)(A). Employers may recover from employees the premium paid to maintain their coverage during a leave to the extent that (1) employees fail to return to work after the pregnancy disability leave and (2) the failure to return from leave is for a reason other than either (a) taking leave under the California Family Rights Act or (b) the continuation, recurrence, or onset of a condition that entitles the employee to a pregnancy disability leave or other circumstances beyond the employee’s control. 9 An even longer leave could be required if pregnancy-related conditions require further leave under the reasonable-accommodation provisions of FEHA. See Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013); 2 Cal. Code Regs. § 11047. 10 Gov’t Code § 12945(a)(4).
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