California Expands Its Family and Medical Leave Law
Late last week, Governor Newsom signed SB 1383 into law, greatly expanding coverage of the California Family Rights Act (CFRA). SB 1383 expands the scope of employers who are covered by CFRA to now include small employers with as few as five employees. SB 1383 also expands the qualifying reasons to use family and medical leave, and expands the categories of family members for whom leave may be taken. These changes, and more, are discussed below.
Small Employers Now Covered
Under current, pre-SB 1383 law, CFRA only applies to employers with fifty or more employees. A separate law (the New Parent Leave Act) requires employers with twenty or more employees to provide parental leave (baby-bonding leave). The new law effectively eliminates the New Parent Leave Act and sweeps its obligations into an expanded CFRA law. Under the newly amended CFRA, which takes effect January 1, 2021, employers with five or more employees will have to begin providing up to 12 weeks of unpaid leave to eligible employees for covered reasons.
Expanded Reasons to Use CFRA Leave
Under current CFRA law, eligible employees (those who have at least 12 months of service and who have worked at least 1,250 hours in the prior 12 months) must be permitted to take up to 12 weeks of unpaid, job-protected leave if they are unable to work because (1) the employee has a serious health condition (other than pregnancy-related disability, which is covered under a separate California leave law); (2) the employee needs to care for a family member with a serious health condition; or (3) the employee needs time to bond with a newborn or newly adopted child or foster care placement. SB 1383 expands the list of family members for whom an employee can take leave and adds qualifying exigencies related to a call to active duty in the armed forces as a covered reason to use CFRA leave.
Under current law, the family members an employee may take to care for include a spouse, domestic partner, parent, or child. SB 1383 expands the family member definition to include grandparents, grandchildren, and siblings.
SB 1383 also adds certain qualifying exigencies related to an employee’s family member being called to active military service to the list of reasons an employee may take CFRA leave. This amendment aligns CFRA with the federal FMLA provision that allows FMLA to be used for qualifying military exigencies.
Elimination of Certain Limitations on Leave and Reinstatement
SB 1383 also eliminates certain provisions of the current CFRA. First, it eliminates the current ability of employers to cap baby bonding leave to a combined total of 12 weeks in circumstances where both parents are employees.
Second, it eliminates the existing “key employee” provision that allows employers in some circumstances to deny reinstatement to an employee who is among the highest 10 percent of wage earners in the company.
Effective January 1, 2021, most employers in California will now have to provide up to 12 weeks of unpaid family and medical leave to employees for qualifying reasons. This is on top of four months of pregnancy disability leave, which employers with five or more employees must already provide to qualifying employees. Group health benefits must be continued on the same terms as if the employee was actively reporting to work during a covered leave, and reinstatement to the same or comparable position upon timely return from leave generally must be guaranteed. Small employers will need to familiarize themselves with the new law and take steps to adopt policies and procedures to ensure compliance.
Large employers who already covered by the FMLA and CFRA will also need to review the changes made to CFRA by SB 1383 and revise their policies and practices to ensure compliance effective January 1, 2021.
The amendments to CFRA leave open the possibility that in some circumstances an employee’s leave will be covered by CFRA but not by the FMLA. This is because CFRA will allow an employee to use leave to care for family members that are not covered by the FMLA. In that unique circumstance, leave under the two laws technically will not run concurrently, allowing for the possibility of an employee exhausting his or her 12 weeks of leave under CFRA and still being entitled to 12 weeks of leave under the FMLA (for a different reason that qualifies under the FMLA).