CA Expands Family, Medical Go away Entitlements

By Jason Wilson Last updated Dec 4, 2020

Wednesday 23 September 2020

** This is an updated version of our post from September 2nd, 2020. **

A new California law will significantly expand the existing family and sick leave laws by expanding the requirement to allow small businesses with five employees to take sheltered vacation, allow vacation for additional reasons, and remove certain exemptions from employer’s obligations Give vacation.

Current law

The California Family Rights Act (“CFRA”) requires companies with 50 or more employees within a 75 mile radius to grant 12 weeks of unpaid sheltered vacation employees who have worked 1,250 hours in the past within a 12 month period, if any required by the employee’s own severe health to bond with a new child or to care for a qualified family member with a severe health. Applying the CFRA only to companies with 50 or more employees within a 75 mile radius complies with the requirements of the Federal Family and Sick Leave Act (“FMLA”).

In 2018, California passed the New Parent Leave Act, which expanded the requirement to provide 12 weeks of unpaid sheltered leave to bond a new child to businesses with only 20 employees within a 75 mile radius.

SB 1383

SB 1383, recently signed by Governor Newsom, is designed to expand the current law in many ways.

First, the law expands which companies are required to take family and sick leave that is protected from work.

B. 1383 defines employers as those with 5 or more employees. It is not required that these 5 employees be within 75 miles of each other. This means that small businesses with as few as 5 employees across the organization must grant eligible employees 12 weeks of protected vacation under the CFRA. This also means that employees of larger companies who work alone or at smaller locations are now insured.

In addition, SB 1383 expands the reasons why employees can take sheltered leave under the CFRA.

B. 1383 expands the family members that employees can take CFRA leave to provide care. Currently, the only family members for whom employees can take CFRA leave are the employee’s parent, child, spouse, or domestic partner. According to SB 1383, employees can also take leave to take care of grandparents, grandchildren or siblings in poor health. In particular, the FMLA does not provide for leave to care for a grandparent, grandson or sibling, which means that employees who take CFRA leave to care for a grandparent, grandchild or sibling are still 12 weeks of health and safety leave available for other qualifying reasons if they are eligible for FMLA leave.
B. 1383 also provides for 12 working weeks of unpaid sheltered leave over a 12 month period, as there is a legitimate need in connection with covered active service or the call for covered active service of the spouse, domestic partner, child or parent of a worker’s Forces of United States. Vacation for this reason falls largely under the FMLA, so these sheets can run concurrently with the FMLA vacation if the vacation is protectable under both laws.

SB 1383 also removes two existing CFRA exemptions.

If the employer employs both parents of a child, the employer can currently limit the total amount of vacation the parents take to bond with the child to a total of 12 working weeks. B. 1383 removes this restriction, which means that the employer is obliged to grant both parents – possibly at the same time – up to 12 weeks’ imprisonment leave.
B. 1383 also removes the current key employee exception, which allows employers to refuse to reinstate employees who are among the highest paid 10 percent of the company’s workforce within a 75 mile radius. In the version revised by SB 1383, the CFRA no longer contains an exception for “key employees”.

Certain parts of the CFRA remain unchanged under SB 1383. Employees must have been employed for at least 12 months and have worked at least 1,250 hours in the last 12 months in order to be entitled to vacation. In addition, if the vacation is eligible for FMLA protection, the CFRA vacation may continue to coincide with the FMLA vacation, with the exception of vacation taken under the FMLA for disability due to pregnancy, childbirth, or similar medical conditions. The employee’s obligation to provide notification and documentation also remains.

Before SB 1383 comes into effect, smaller businesses will need to draft CFRA vacation policies and initiate vacation procedures. Once the law goes into effect, they will need to approve, manage, and track employee leave. Larger companies will also need to update their CFRA policies and forms as employees can take leave for additional reasons and existing exemptions no longer apply.

SB 1383 comes into force on January 1, 2021.