California Expands Scope of Household and Medical Depart Protection | McGuireWoods LLP

Effective January 1, 2021, California employers with five or more employees must grant their employees family and sick leave under a newly enacted version of the California Family Rights Act (CFRA). The new version of the CFRA extends the definition of “family members” for whom an insured employee can request leave, removes certain usage restrictions and entitles some employees to unpaid sheltered leave of up to 24 weeks within a 12 month period. These and other significant changes are the result of Senate Act (SB) 1383, signed by California Governor Gavin Newsom on September 17, 2020.

CFRA covers employees who work for an employer with five or more employees

Currently, a person who works for an employer with 50 or more employees is entitled to 12 working weeks of unpaid CFRA Protected Leave within a 12 month period to attend to their serious health condition or the serious health condition of the employee’s minor child, Parent or spouse. The new version of CFRA drastically reduces the number of employees who trigger CFRA coverage to just five employees. SB 1383 will serve to repeal California’s New Parent Leave Act (NPLA) effective December 31, 2020, as the NPLA is no longer required given the extensive new coverage under the CFRA, as described below. (With NPLA, individuals working for employers with 20 or more employees can take 12 weeks of unpaid sheltered leave over a 12 month period to bond with a new child.)

The new CFRA regulations also remove CFRA’s current exemption from coverage for employers with fewer than 50 workers within 75 miles of the worker’s construction site. The other current vacation qualifications – an employee must have been in the employer’s service for at least 12 months and have worked at least 1,250 hours in the 12 months prior to the vacation – remain, however. The new CFRA, like the current one, continues to require that employers guarantee that workers will be reinstated in the same or a comparable position upon their return from CFRA leave. However, the new CFRA removes the “key worker” exception, which allowed an employer to deny CFRA leave to workers who are in the top 10 percent of their workforce if it is “necessary to cause significant and severe economic damage to the Prevent employers’ operations.

Extended definition of “family member”; Leave for family members called up for military service

Under current law, employees are entitled to CFRA vacation to bond with a new child and take care of the employee’s own or a “family member’s” own serious health. Currently, family members include minor children, adult dependent children, spouses, and parents. According to the new version of the CFRA, however, family members also include siblings, grandparents, grandchildren and domestic partners. Family members also include all adult children, regardless of whether they are dependent on an employee, and the children of life partners.

The new CFRA is more in line with the Federal Family Leave Act (FMLA) and allows employees to take unpaid sheltered leave within a period of 12 months to 12 working weeks to meet a “qualifying need” related to insured active service or call the insured active duty of an employee’s spouse, domestic partner, child, or parent in the U.S. Forces. (The FMLA does not include domestic partners in the definition of the family doctor leave “Qualifying Exigency”.)

Parents with the same employer can take “baby bonding” leave. 24 weeks vacation for other needs

SB 1383 also removes the current CFRA mandate that if both parents are employed by the same employer it only takes 12 weeks total to bond with a newborn, adopted child, or nursing home. Once the new CFRA law comes into effect and both parents are employed by the same employer, they will each be entitled to 12 weeks (or a total of 24 weeks) of unpaid sheltered baby bond leave.

With the significant changes SB 1383 is making to the CFRA definition of “family members” and the inclusion of domestic partners in the definition of “qualified requirement” for military service, there is now potential for certain insured employees from both the FMLA and the US from the CFRA for up to 24 weeks of unpaid sheltered vacation for a period of 12 months. You are currently leaving the FMLA and running it under the CFRA at the same time. Under the new law, an employee covered by the FMLA must take a 12-month vacation for a reason covered by the CFRA but not the FMLA – for example, for a sibling, grandparent, grandchild, or domestic worker to mentor partner or because a domestic partner is called up for military service – the employee is allowed to take up to 24 weeks of unpaid sheltered leave (12 weeks under the FMLA and 12 weeks under the CFRA).

Next Steps to CFRA Compliance for Small and Large Employers

Employers with five to 49 employees who are not currently covered by the CFRA must adopt new guidelines and procedures to comply with SB 1383. Supervisors and staff must also be trained to properly implement the requirements of the new CFRA. Employers with 50 or more employees will need to revise the existing guidelines to reflect the changes on the first of the year and ensure that all appropriate employees are trained on the new requirements. In addition, both small and large employers will need to consider or re-examine how they track vacation under the FMLA and CFRA as they do not always work at the same time.