California’s CFRA Expansion Brings Increased Leave Rights

With the new year came a significant expansion of the California Family Rights Act (“CFRA”), which provides up to 12 weeks of unpaid, protected family and medical leave for certain employees. 

Under CFRA, specified employers are prohibited from refusing to grant certain leave requests by employees.  Employees granted a CFRA leave request must be guaranteed employment in the same or a comparable position upon termination of the leave.  CFRA also generally requires employers to maintain and pay for coverage under the employee’s group health plan for the duration of the leave at the level coverage would have been provided if the employee had continued working during the leave.

Under Senate Bill 1383, which went into effect January 1, 2021, private employers covered by CFRA now include any person who directly employs 5 or more employees.  Prior to this expansion, private employers covered by CFRA were only those with 50 or more employees. 

Qualifying Reasons For Leave

Qualified employees may be eligible for up to 12 workweeks of unpaid protected leave during any 12-month period:

1. for the birth of a child of the employee or placement of a child with an employee in connection with the adoption or foster care of the child by the employee;

2. for the employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee;

3. to care for certain family members who have a serious health condition;

4. due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Covered family members used to include a spouse, domestic partner, parent, minor child, or dependent adult.  Now covered family members also include a child (not just minor child), grandparent, grandchild, and sibling.  Child, as defined, includes a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or person to whom the employee stands in loco parentis.  This definition now includes adult children.  Parent, as defined, includes 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.  A grandchild means a child of the employee’s child and a grandparent means a parent of the employee’s parent.  Sibling includes a person related to another person by blood, adoption, or affinity through a common legal or biological parent.

Given these expanded categories covered by CFRA, such leave may not always run concurrently with the Federal Family and Medical Leave Act (“FMLA”).  Employers will want to carefully track all leave requests to properly comply with both the CFRA and FMLA.

You may also recall that California recently expanded its baby-bonding leave to smaller employers.  Specifically, California’s 2018 New Parent Leave Act (“NPLA”), provided for 12 workweeks of unpaid protected baby-bonding leave for employees working at a worksite in which the employer employs at least 20 employees within 75 miles.  The protections of the NPLA are now included within CFRA, and the separate NPLA has been repealed.

Eligibility for Leave

CFRA still requires an employee to have at least 1,250 hours of service with the employer during the previous 12-month period in order to qualify for leave.

Significantly, employees no longer need to be among 50 employees within 75 miles to qualify for leave; there is now no geographic limitation to eligibility for CFRA leave, so long as the employer has 5 or more employees.

The CFRA expansion also eliminated the so-called “key employee” exception.  Specifically, there is no longer an exception from complying with CFRA for an employee who is a salaried employee and is among the highest paid 10% of the employer’s employees. 

Finally, there is no longer an ability to split the total leave among two parents when both parents of a child are employed by the same employer.  Now, the total amount of leave would need to be granted to each such parent.  Employers can no longer require parents split the leave in any way.

A Note About Pregnancy Leave

Although the CFRA expansion touches on leave for baby-bonding, the legislation specifies that existing pregnancy, childbirth, and related medical condition leave provisions are separate and distinct protections from CFRA protections.  By definition, use of CFRA leave to care for an employee’s own serious health condition does not include any leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

Small Employer Family Leave Mediation Pilot Program

Under Government Code Section 12945.21, the California Department of Fair Employment and Housing (“DFEH”), the state agency that enforces CFRA, is tasked with creating a small employer family leave mediation pilot program for employers with between 5 and 19 employees.  Under the pilot program, an employer may, within 30 days of receipt of a right-to-sue notice alleging a violation of CFRA, request all parties to participate in the DFEH’s dispute resolution division.  The DFEH is supposed to include in a right-to-sue notice information about the right to participate in the mediation pilot program.  If an employer or employee requests such mediation, the employee cannot file suit under CFRA until the mediation is complete.  An employee’s statute of limitations, including for all related claims not under CFRA, are tolled upon receipt of a request to participate in the DFEH’s dispute resolution division until mediation is complete.  Section 12945.21 remains in effect until January 1, 2024.

Next Steps for Employers

Now is a good time to revisit your handbooks, leave policies and training to make sure your company’s policies and procedures comply with the expanded CFRA requirements.  The DFEH has added updated facts sheets, required posters, and other leave-related information on its website.  We will also keep an eye on the CFRA regulations in effect.  Employers with questions about how to comply with the new requirements or how to navigate tricky leave questions are encouraged to consult with employment counsel.

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Conn Maciel Carey LLP
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