Notable changes to the California Family Rights Act (“CFRA”) recently went into effect on January 1, 2021. The CFRA enables eligible employees to take up to 12 weeks of unpaid family care and medical leave in a 12-month period. An eligible employee is one who has worked for the employer for more than 12 months and who has worked at least 1,250 hours in the 12-month period prior to requesting leave.
Prior to the enactment of Senate Bill 1383 (“SB 1383”), the CFRA largely mirrored the federal Family and Medical Leave Act (“FMLA”), requiring larger employers with 50 or more employees to grant leave to eligible employees. Similar to the FMLA, the CFRA authorized eligible employees to take leave for the following reasons: (1) the birth of the employee's child or placement of a child with the employee in connection with adoption or foster care; (2) to care for an immediate family member—defined as the employee's spouse, parent, or child—with a serious health condition; or (3) for the employee's own serious health condition, other than disability due to pregnancy, that rendered the employee unable to work.
SB 1383 makes several significant changes to the CFRA and now departs from the FMLA in notable ways.
Small Employers Now Subject to the CFRA
Perhaps the most important change to the CFRA is subjecting small employers—those with 5 or more employees—to the requirement of providing family care and medical leave to eligible employees. Now, small employers in California face requirements under the CFRA to which they are not subject under the FMLA.
SB 1383 expressly repeals the New Parent Leave Act, which requires employers with 20-49 employees to provide eligible employees with up to 12 weeks of unpaid leave to bond with a newborn, adopted, or foster child. Broadening the employers subject to the CFRA to include those with 5 or more employees renders the New Parent Leave Act obsolete.
Expansion of the Definition of “Child” and Family Members
SB 1383 broadens the definition of “child” to include the child of the employee's domestic partner. Now, an eligible employee may take leave to care for or bond with the child of the employee's domestic partner.
SB 1383 also expands the definition of family members to include the employee's grandparent, grandchild, sibling, and domestic partner. Notably, the FMLA does not require employers to grant leave to an employee to care for a grandparent, grandchild, or sibling.
Addition of Leave for Qualifying Military Exigency
Prior to the enactment of SB 1383, the CFRA differed from the FMLA by not authorizing leave for military activities such as deployment. Beginning January 1, 2021, however, employees may take leave for a qualifying military exigency—defined in Section 3302.2 of the Unemployment Insurance Code—of the employee's spouse, domestic partner, child, or parent.
Removal of Key Employee Provision
Previously under the CFRA, employers could deny reinstatement to certain “key” employees—defined as those among the highest paid 10% of employees within 75 miles of the employee's worksite—if the employer demonstrated that denying reinstatement was necessary to prevent substantial and grievous economic injury to the employer's operations. SB 1383 removes this “key” employee provision, thus eliminating employers' ability to deny reinstatement or to fill the employee's position while the employee is on leave.
Changes Affecting Parents Who Work for the Same Employer
Before the enactment of SB 1383, parents who worked for the same employer could take up to 12 weeks of leave in a 12-month period between the two of them for the birth of a child or placement of a child in connection with adoption or foster care. SB 1383 requires employers to grant up to 12 weeks of leave in a 12-month period to each parent.
Employer Action Items
The differences between the CFRA and the FMLA raise important issues for which employers need to prepare. In some circumstances, employees may be entitled to take up to 24 weeks of leave within a 12-month period. For example, an employee who takes 12 weeks of leave under the FMLA for the employee's own serious health condition may be entitled to take another 12 weeks of leave under the CFRA to care for the employee's sibling with a serious health condition.
Small employers not previously subject to the CFRA should familiarize themselves with the law's provisions and inform all relevant personnel of the new requirements. Updates should be made to employee handbooks, leave policies, and any forms or documents used in connection with leave. Employers should consult with experienced employment counsel to ensure compliance and avoid costly litigation.
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