Currently, the California Family Rights Act (“CFRA”), which largely mirrors the Federal Family Medical Leave Act, requires employers with 50 or more employees within a 75-mile radius to grant a leave of absence to eligible employees of up to 12 workweeks in a 12-month period for permitted purposes, including to bond with a new child or to care for themselves or a child, parent, or spouse.
On January 1, 2018, the baby bonding requirements of the CFRA were expanded under the New Parent Leave Act to apply to employers with 20 or more employees within a 75-mile radius for eligible employees. Where both parents work for the same employer, the employer only has to grant a combined 12 weeks of leave for baby bonding purposes under the CFRA and New Parent Leave Act.
Governor Gavin Newsom approved a historic expansion of the California Family Right Act on September 17, 2020 when he signed into law Senate Bill (“SB”) 1383. Senate Bill (“SB”) 1383 expands coverage to Employers with as few as 5 employees, and further expands what are considered qualifying events.
The current CFRA law eligibility remains unchanged for 2021 and employee eligibility is dependent upon the employee working for the employer for at least 12 months and working at least 1,250 hours in the 12 months before commencing leave.
However, the definition of eligible employers and the definitions of family members will change effective January 1, 2021.
New Rules For January 1, 2021
CFRA 2021 not only expands who is a covered employer, it also expands what is a covered qualifying condition. The key provisions:
- The new law is effective January 1, 2021 with no stated retroactive effect.
- CFRA will encompass employers of only five employees or more. Small employers already taxed in a difficult year will soon learn that the law’s requirements are complicated and subject to strict notice requirements, deadlines and interplay with other State and Federal Laws.
NOTE: The FMLA will continue to apply only to private employers who employ 50 or more employees.
- CFRA leave is expanded to not only care for one’s self, spouse or child, but also for an ill grandparent, grandchild or sibling.
- CFRA leave is expanded to domestic partners.
- The definition of child is expanded to include a registered domestic partner’s children. While the current law provides leave for the birth of an employee’s child or placement of a child with an employee in connection with adoption or foster care, SB 1383 adds the “child of a domestic partner” to CFRA’s definition of “child.” By doing so, SB 1383 adds a new category of “child” with respect to whom an employee may be entitled to leave, either to care for or for bonding.
- The new law eliminates the Key Employee designation. CFRA authorized employers to deny reinstatement to “key employees” if the person was a highly paid, salaried employee and there would have been “substantial and grievous economic injury” to the employer to allow the leave and hold the position. The ability to make such designation is now removed from the law.
Complexities for Employers
The FMLA still only applies to Employers of 50 or more Employees. The FMLA does not require employers to grant leave to an employee to care for a grandparent, grandchild or sibling.
California employers may face employees requesting CFRA leave to care for a grandparent, and later in the same 12-month period requesting FMLA leave to care for a parent or spouse. In that event, a question will arise as to whether the employee is entitled to a total of 24 weeks of leave in one 12-month period (12 weeks under CFRA for care of the grandparent and an additional 12 weeks under the FMLA for their parent or spouse.)
The removal of the key employee designation will be detrimental to small business owners, as well as larger ones, because it strips employers of the ability to fill the positions of critical, high-ranking employees during their leave.
However, as noted above there may be situations where the Employer may still make such a designation under the FMLA, since the FMLA retains a key employee provision.
California’s New Parent Leave Act is Repealed
The New Parent Leave Act, enacted January 1, 2018, requires employers of 20-49 employees to provide eligible employees with up to 12 weeks of unpaid leave to bond with a newborn child, adopted child or foster child.
In making employers of only five or more employees subject to CFRA, SB 1383 renders the New Parent Leave Act redundant. For that reason, SB 1383 expressly repeals the New Parent Leave Act effective January 1, 2021.
What Employers Need to Do Now
Employers who will be subject to CFRA as of January 1, 2021 should prepare to comply. Actions to consider taking include:
- Small Employers need to prepare written policies and procedures relating to CFRA leave.
- All Employers need to update current CFRA leave policies, eliminate any policy related to the New Parent Leave Act and evaluate overall leave policies to determine if changes need to be made. Employers should distribute new policies to employees by January 1, 2021.
- Secure training for human resources personnel and any supervisory employees who may handle CFRA leave or questions from employees.
- Since CFRA and FMLA may no longer run concurrent and now have different eligibility requirements it may be necessary to review and update the “Notice of Eligibility and Rights and Responsibilities”, as well as the form “Designation Notice” to ensure as amended.
It is important that all employers update their policies and procedures as it relates to leave. Berliner Cohen, LLP has a dynamic employment law team that can assist you with this process. For questions or to schedule and update of your policies and handbook please Christine H. Long, Partner and Department Chair, Berliner Cohen LLP (408) 286-5800 or christine.long@berliner.com.