|
California
employers with as few as five employees must provide family and medical
leave rights to their employees pursuant to Senate Bill 1383 (SB 1383), signed by Governor Gavin Newsom on
September 17, 2020. This new law repealed the current California Family
Rights Act (CFRA) and eliminated the California New Parent Leave Act and
replaced it with the new CFRA, found under California Government Code
Section 12945.2 et seq.
The new CFRA
significantly expands the leave’s reach to more employers, substantially
increases the reasons for which an employee can take CFRA leave and
increases the scope of the family members for whom CFRA leave may be used.
This new law goes
into effect on January 1, 2021.
Expanded Eligibility
to Small Employers
Under pre-existing
law, employers were not required to provide family care and medical leave
under CFRA if the employee seeking leave worked at a worksite with fewer
than 50 employees within a 75-mile radius. Similarly, employers were not
required to provide “baby bonding” leave under the New Parent Leave Act
(NPLA), if the employee seeking leave worked at a worksite with fewer than
20 employees within a 75-mile radius.
SB 1383 expands the
obligation to provide leave to small employers not previously covered. The
new law requires employers with at least five employees to provide eligible
employees with up to 12 workweeks of unpaid job-protected leave during any
12-month period for certain covered reasons (as explained below). The
employer must maintain and pay for the employee’s coverage under a group
health plan for the duration of the leave at the level and under the
conditions coverage would have been provided if the employee had continued
in employment continuously for the duration of the leave.
Additional Covered
Family Members and Expanded Reasons for Leave
SB 1383 expands the
covered family members and potential reasons for which an eligible employee
may take leave. Under SB 1383, eligible employees may take leave to bond
with a new child of the employee or to care for themselves or a child
(regardless of the child’s age), parent, grandparent, grandchild, sibling,
spouse, or domestic partner.
Under the prior CFRA
statute, leave for purposes of caring for a family member was available
only if the family member was the employee’s child (who had to be under 18
years old or 18 and over and incapable of self-care due to mental or
physical disability), a parent, spouse, or domestic partner. However,
with the enactment of SB 1383, all eligible employees will be able to care
for all those previously provided under the law plus grandparents,
grandchildren, siblings, and children of all ages.
SB 1383 also
requires an employer that employs both parents of a child to grant up to 12
weeks of leave to each employee. Under pre-existing law, the employer only
had to grant both employees a combined total of 12 weeks of leave.
In addition, the new
law requires employers to provide up to 12 weeks of unpaid job-protected leave
during any 12-month period 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.
Furthermore, SB 1383
does not permit an employer to refuse reinstatement of “key employees” as
was previously allowed by CFRA under qualifying circumstances.
Under SB 1383,
employees will still need to meet eligibility requirements, including 12
months of service and 1,250 hours worked for the employer in the previous
12-month period, to qualify for family and medical leave.
Risk of 24 Weeks of
Protected Family and Medical Leave for Larger Employers
SB 1383 also
creates a unique issue for employers that have 50 or more employees and are
therefore covered under both the new CFRA and the federal Family and
Medical Leave Act (FMLA). Generally, leaves under CFRA and FMLA run
concurrently, which means an employee is generally only eligible for
a total of 12 weeks of unpaid leave under both laws. However,
SB 1383 now expands the definition of “family member” under the new CFRA in
a manner that is different from the definition under the federal FMLA.
This, therefore, creates a situation in which an employee could be eligible
for 12 weeks of leave under the new CFRA but also remain eligible for a
full additional 12 weeks under FMLA.
For example,
suppose an employee working for an employer with 50 or more employees needs
to take family leave to care for his brother that has a serious health
condition. Under SB 1383, the employee would be eligible to take up to 12
weeks of CFRA leave. However, since “siblings” are not covered under the
federal FMLA, that same employee is potentially still eligible to take 12
weeks of leave under the FMLA to care for a sick child, parent or spouse.
Accordingly, under this example, an employer could be faced with providing
up to 24 weeks of leave to such an employee.
What Should
Employers Do Now
Smaller employers
who previously were not covered by CFRA need to immediately begin the
process of preparing for January 1, 2021 and speak with their employment
counsel and HR personnel to develop proper policies and procedures and
update their employee handbooks. Similarly, given the expanded
definition of “family member” under the new CFRA, even employers that were
already covered by CFRA will need to update their policies, procedures,
forms and employee handbooks.
D Vasquez Law is
here to help. Contact us today! This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.
|
