Governor Newsom just signed Senate Bill 1383. The new law historically expands California Family Rights Act ("CFRA") to apply to employers with 5 or more employees. The law requires covered employers to provide up to 12 weeks of unpaid leave during each 12-month period for purposes of family and medical leave and also expands the scope of "family members" for whom employees can take leave. This new law will go into effect January 1, 2021. Given the short time period for compliance, it is critical to understand this new law now and make changes in your compliance plans.
Current CFRA Expires December 31, 2020 – The current CFRA, which models the federal Family and Medical Leave Act ("FMLA"), is applicable to employers with 50 or more employees within 75 miles of the worksite (and public employers of any size). It requires such employers to provide a 12 week, unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent or a spouse, with a serious health condition, if the employee has worked at least 1,250 hours in the previous 12 months for that employer.
California Employers With 5 or More Employees Will Have To Offer CFRA Benefits To Their Covered Employees
The new CFRA will now apply to any employer in California that directly employs 5 or more persons (and public employers of any size). This is a huge expansion of CFRA rights from the prior 50-person minimum threshold. California Employers with 5 - 49 employees must modify their policies and practices in providing family care and medical leave. Importantly, the employer must maintain health care coverage for such employees for the duration of the leave at the level and under the conditions coverage would have been provided prior to the leave (but only if the employer was already providing health insurance coverage).
CFRA Leave Is Expanded To Care For An Ill Grandparent, Grandchild or Sibling
Starting January 1, 2021, covered employers must provide family care and medical leave for the following reasons:
- For the birth of a child of the employee or placement of an adopted or foster child;
- To care for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a serious health condition;
- An employee's own serious health condition that makes the employee unable to perform his or her job functions;
- A qualifying exigency related to active duty or call to covered active duty of an employee's spouse, domestic partner, child or parent in the Armed Forces.
The third reason has been expanded to include care for a grandparent, grandchild or sibling. Domestic partner is also added as a family member whose illness entitles eligible employees to CFRA leave. "Child of a domestic partner" has also been added to CFRA's definition of "child," which means that an eligible employee is entitled to CFRA leave for care or bonding based on this new category. The definition of "child" is also expanded to cover all adult children (even if they are not under 18 years of age or dependent). Thus, as of January 1, 2021, California employers with just 5 or more employees will have to provide CFRA leave for the care of these family members.
The new CFRA deletes the provision that if both parents work for the same employer, the employer is not required to provide more than a total of 12 weeks of leave in connection with the birth, adoption or foster care placement of a child. Therefore, employers may now be required to provide both parents with 12 weeks of leave in such a situation.
New CFRA Removes Key Employee Provision
The old CFRA allowed an employer to refuse to reinstate an employee returning from CFRA leave to the same or comparable position if the employee is salaried and among 10% of the highest paid employees within 75 miles of his/her worksite. The refusal to return the employee must have been necessary to prevent substantial and grievous economic injury to the employer's operations.
The new CFRA omits this "key employee" provision, meaning potentially that employers can no longer use this defense in refusing to reinstatement an employee. The FMLA retains a key employee provision.
New Parent Leave Act Is Repealed
The New Parent Leave Act, which became effective January 1, 2018, is repealed with the new CFRA. The New Parent Leave Act, applicable to employers with 20 to 49 employees, required such employers to provide eligible employees with up to 12 weeks of unpaid leave to bond with a newborn child, adopted child or foster child. Because the new CFRA drops the threshold to 5 employees, the New Parent Leave Act becomes redundant and as such is repealed as of January 1, 2021.
The implications of this new law are far-reaching as it subjects many more small California employers to the requirements of the CFRA and having to navigate the complex terrain of leave law. In preparation for January 1, 2021, employers should take the time to update and revise their written policies and forms, and train human resources and supervisory personnel to ensure compliance with the new CFRA.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or 704-765-1409, or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Janet S. Soultanian
Ballard Rosenberg Golper & Savitt, LLP