NEW CALIFORNIA FAMILY RIGHTS ACT (CFRA) SUBSTANTIALLY IMPACTS MANY EMPLOYERS

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 This new law repealed the current California Family Rights Act (CFRA) and eliminated the California New Parent Leave Act and replaced it with the new CFRA, found under California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.