By Ki Lin Tay, Esq.
Jaimee K. Wellerstein, Esq.
On September 17, 2020, Governor Gavin Newsom signed new legislation that will expand the California Family Rights Act (CFRA), significantly impacting both small and large California employers across the board.
The new legislation, Senate (SB) Bill 1383, expands CFRA to apply to all employers with as few as five employees, and expands the Act’s definition of “family members,” requiring employers to grant job-protected family and medical leave to employees in order to care for several additional categories of qualifying family members.
SB 1383 becomes effective January 1, 2021. California employers are advised to immediately develop compliance plans, policies, and procedures to prepare for implementation of the expanded CFRA come the new year.
Current Family and Medical Leave Law
The current CFRA is modelled largely on the federal Family and Medical Leave Act (FMLA). Much like the FMLA, CFRA applies to private employers with 50 or more employees each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Employees are eligible for CFRA leave if they have at least 12 months of service with their employer, have worked at least 1,250 hours during the 12 month period prior to commencement of leave, and worked at a worksite with at least 50 employees within a 75 mile radius. Employees eligible for CFRA leave may take up to 12 workweeks of leave in a 12 month period for the employee’s own serious health condition, or the serious health condition of the employee’s child, parent, spouse, registered domestic partner, or registered domestic partner’s child, as well as for the birth or placement of a child for adoption or foster care.
California’s New Parent Leave Act Will Be Repealed
For employees not covered under CFRA or the FMLA, California’s New Parent Leave Act (NPLA) allows employees to take up to 12 weeks of “baby bonding” leave to bond with a new child if they have at least 12 months of service with their employer, have worked at least 1,250 hours during the 12 month period prior to commencement of leave, and work at a worksite with at least 20 or more employees employed within a 75 mile radius. The purpose of NPLA was to make leave available to employees who did not otherwise qualify for family and medical leave because they worked for smaller employers. Since SB 1383 will expand CFRA to apply to smaller employers, the NPLA will soon be rendered redundant; as such, NPLA will be repealed on January 1, 2021, once SB 1383 becomes effective.
Small Employers Will Now Be Subject to CFRA
The new statute – SB 1383 – is poised to reach countless California employers not currently subject to the FMLA’s requirements, requiring small employers to provide family and medical leave in situations where the FMLA does not.
Where CFRA currently applies only to private sector employers of 50 employees or more, SB 1383 will expand CFRA to apply to private employers with five or more employees, while eliminating the requirement that employees must work within 75 miles of the worksite. That is, small employers in California – those with as few as five employees – will be obligated to provide eligible employees up to 12 weeks of job-protected family and medical leave every year. Further, employers subject to the new law must maintain and pay for the eligible employee’s coverage under a group health plan for the duration of the leave at the level and conditions the coverage would have bene provided if the employee had continued employment during the duration of the leave.
With CFRA applying to much smaller employers as of the new year, there will be a significant adjustment period for small employers who have never had to comply with a family and medical leave law like the FMLA or CFRA. Small employers that will be subject to CFRA will discover that the law’s requirements are intricate and often subject to strict deadlines. As such, it is imperative that employers immediately become familiar with the obligations and requirements of the new law to mitigate the significant risks of non-compliance.
Expansion of Covered Family Members and Uses
CFRA allows eligible employees to take unpaid leave for a variety of reasons, including to care for a “family member” with a serious health condition. CFRA currently defines “family member” to include a spouse, a parent, or a minor child under the age of 18 years or adult dependent child.
SB 1383 will significantly expand the definition of “family members”, and for the first time, eligible employees will be entitled to take CFRA leave to care for family members not previously encompassed by CFRA, including siblings, grandparents, grandchildren, and domestic partners. Further, the definition of “child” is expanded by SB 1383 to cover all adult children, irrespective of whether they are dependents, and children of a domestic partner.
As a result, this also expands the obligations of large employers, as large employers will now be required to provide leave to employees that wish to provide care for a wider array of family members with a serious health condition.
Additional Changes to Current Law
SB 1383 makes some additional key changes to CFRA. First, the new law eliminates the limitation on the amount of leave parents may take in connection with the birth, adoption, or foster care placement of a child when both parents are employed by the same employer. Currently, in such a situation, employers are not required to provide more than an aggregate total of 12 weeks of leave if both parents are employed by the same employer. SB 1383 may now require employers to provide 12 weeks of leave to each parent employee in these circumstances.
Second, SB 1383 removes language from CFRA which allows employers to deny reinstatement to “key employees” following a leave, where such denial of reinstatement is necessary to prevent substantial economic injury to the employer. This exception for employers was previously allowed by CFRA, but will now be a thing of the past with the passing of SB 1383.
New Law Creates a Stacking Problem as State and Federal Leave May Not Run Concurrently
Employers face a troubling dilemma presented by SB 1383 if they employ 50 employees or more and are covered under both the FMLA and CFRA. Generally, family and medical leave under FMLA and CFRA run concurrently, which means that employees are only entitled to take an aggregate of 12 weeks of leave under both statutes in total. However, since SB 1383 will expand the definition of “family member” under CFRA in a manner that is inconsistent with the federal definition under FMLA, employees may stack the two leaves together and be eligible for 12 weeks of leave to care for a “family member” as FMLA defines it, and another 12 weeks to care for a “family member” as CFRA defines it. Thus, an employer could be faced with providing up to 24 weeks of leave to such qualifying employees.
Given the complexities of the new California Family Rights Act, and the significant impact the changing landscape of leave laws will have on employers, California employers of all size should consider the following action items well in advance of the January 1, 2021 effective date in order to avoid costly mistakes:
- Small employers should work with employment counsel to update their employee handbooks to include the new CFRA leave and/or develop policies and procedures in order to implement and comply with the new leave requirements enacted by SB 1383. Employers should circulate updated policies and procedures to employees no later than January 1, 2021.
- Small employers who will now be subject to CFRA should become familiar with their new family and medical leave obligations and train administrative professionals, human resource staff, supervisors and other managerial personnel so they are prepared to receive and process requests or answer questions related to the new CFRA leave laws.
- Small employers in particular will be faced with managing leave administration for the first time. As such, small employers should start the planning process now to ensure that they have the resources needed to accurately track and monitor protected leaves for their workforce.
- All employers, including those already covered by CFRA, should start making revisions to existing CFRA policies and procedures in order to incorporate the new amendments, as well as eliminate any policies or procedures relating to the soon-to-be defunct NPLA.
- All employers should review and update their leave administration procedures and leave forms, including the form Notice of Eligibility and Rights and Responsibilities and form Designation Notice, to account for the newly amended CFRA obligations.
Have questions about the new California Family Rights Act or any other pressing employment law issues? Contact your attorneys at Bradley, Gmelich & Wellerstein LLP. We are here to help.