Actions to significantly expand California’s family and medical leave requirements have taken effect, so employers need to be prepared to respond appropriately to employees’ requests for time off.
In September 2020,
Gov. Gavin Newsom signed a law to expand the California Family Rights Act (CFRA). The new parts of the law took effect in January 2021 and January 2022, depending on when they were added.
The CFRA now covers private employers with five or more employees, rather than the 50 employees required before the expansion. The CFRA continues to apply to public employers, regardless of size. The new provisions removed the requirement that employees work within a 75-mile radius of each other to be covered by the CFRA. That means employees at small worksites and those working remotely may be eligible for CFRA leave.
California employees become eligible for CFRA leave if they have worked for the employer for at least 12 months and worked at least 1,250 hours within that time frame. The law covers part-time workers if they meet those two requirements.
The CFRA now guarantees up to 12 weeks of unpaid leave for the
- Birth of a child, including the child of the employee’s domestic partner.
- Placement of a child for adoption or foster care.
- Caring for a child, parent, parent-in-law, spouse, registered domestic partner, sibling, grandparent or grandchild with a serious health condition.
- The employee’s serious health condition, excluding pregnancy.
- A qualifying military exigency related to the call to active duty of an employee’s spouse, domestic partner, child or parent in the United States Armed Forces.
Previously, the reasons for taking CFRA leave included only caring for a sick family member. In 2021, a separate bill expanded the definition of family member to include a parent-in-law. It also removed the age restrictions on the definition of child. Previously, the child had to be 18 or younger, but now the leave is permitted regardless of the child’s age.
A bill that passed in the California Assembly this year would permit CFRA leave to care for any “designated person” with a serious illness. That term means any individual related by blood or whose association with the employee is equivalent to a family relationship. That proposal has not yet passed the state Senate.
The proposal is “perhaps reflective of a concern that the statutory focus upon nuclear family relationships for leave purposes ignores modern realities and so-called chosen families,” said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego. “In this regard, it would follow the lead of several states—Oregon, Connecticut, New Jersey and Colorado—and at least eight localities, including Los Angeles, that allow paid sick time or paid family and medical leave to cover designated persons.”
Under the new CFRA provisions, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave. While the CFRA doesn’t cover pregnancy, workers in California may be eligible for up to four months of
leave for pregnancy, childbirth and related medical conditions under the state’s separate pregnancy disability law.
Going Beyond the FMLA
Keep in mind that the CFRA is similar to, but not the same as, the federal Family and Medical Leave Act (FMLA). California goes beyond the federal statute, which also guarantees 12 weeks of unpaid leave but uses different definitions for family member and serious health condition. The FMLA also has a different requirement for the size of covered employers.
Like FMLA leave, CFRA leave is typically unpaid, although employees may use their accrued sick or vacation days. Employers must continue employees’ health insurance coverage during CFRA leave, according to
guidance from the state Department of Fair Employment and Housing, which enforces the CFRA.
Employers should “train HR professionals on the differences between CFRA and FMLA so that they are attuned to circumstances when a request for leave may be permissible under one statute but not another,” said Greg Demers, an attorney with Ropes & Gray in Boston. “Employers must understand the differences between the two statutes to accurately designate leave and notify employees who request leave whether they qualify under the FMLA or CFRA, or both.”
Like FMLA leave, CFRA leave is job-protected, meaning at the end of the leave, the employer must restore the worker to the same job or a job that’s similar in duties, location, seniority, pay and benefits.
Before the expansion, CFRA allowed an employer to refuse to reinstate an employee if that worker was a key employee (among the 10 percent of the highest-paid employees), and if reinstatement would cause substantial and grievous injury to the employer’s operations. The new CFRA provisions eliminated this “key employee” exemption.
To verify a serious health condition, employers may require employees to submit a certification from a health care provider without the diagnosis listed.
“California employers may require a certification that includes the date the serious health condition commenced, the anticipated duration of the serious health condition and a statement that the employee is unable to perform one or more essential job functions,” said Daniel Prokott, an attorney with Faegre Drinker in Minneapolis.
Immediate action steps include revising formal leave policies, posting a notice about CFRA rights at the worksite and communicating with employees.
“If they have not already done so, employers should update their employee handbooks and written leave policies,” said Gary McLaughlin, an attorney with Mitchell Silberberg & Knupp in Los Angeles.
“For employers with employees in many states, including California, it is advisable for the employer to develop a California-specific employee handbook or supplement to the employer’s core handbook that addresses certain California-specific requirements, including a policy that informs employees in California of their rights under the CFRA,” Prokott noted.
Ensure that you properly designate whether an employee’s leave qualifies for the CFRA and communicate that designation to the employee. “Failure to do so can create confusion,” McLaughlin said.