Expanded California Family Rights Act will make more employees eligible for protected paid leave
AB 1867 also establishes a pilot CFRA violation mediation program for small employers
Employers should update policies and handbooks and factor in these CFRA changes when tracking CFRA and FMLA leaves
California employees have one more thing to be grateful for this year, just in time for Thanksgiving. On September 17, 2020, Gov. Gavin Newsom signed Senate Bill No. 1383 into law, effectively expanding the existing family and medical leave protections for working families. This new law, which becomes effective January 1, 2021, makes several significant changes to the existing family and medical leave law, commonly referred to as the California Family Rights Act (CFRA).
Key Change #1: CFRA leave now covers all private sector employers with five or more employees
Currently, CFRA provides that those employers with 50 or more employees within a 75-mile radius must grant a request by an employee who has worked at least 1,250 hours within the previous 12-month period to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child or to care for themselves or an immediate family member with a serious health condition. This meant that an employer with 49 or fewer employees could lawfully deny a request for CFRA-protected leave.
Under SB 1383, the threshold will now be lowered so that any private sector employer with five or more employees must now grant a request for CFRA leave by a requesting employee, so long as the employee (1) worked for the employer for at least 12 months of service over a seven-year period, and (2) worked at least 1,250 hours in the 12-month period prior to taking CFRA leave. During the employee’s leave, the employer must maintain and pay the employee’s group health plan under the same conditions as it would have had the employee continued in employment.
Key Change #2: CFRA leave expands the types of leaves available
SB 1383 also expands the reasons for which an employee can request CFRA leave by expanding coverage to more family members and allowing for qualifying exigency leave.
Under the prior statute, eligible employees were allowed CFRA leave to take care of immediate family members with a serious health condition. Immediate family members were limited to the employee’s child, parent, spouse, or domestic partner. Following the passage of SB 1383, however, covered family members now include adult children, children of domestic partners, grandparents, grandchildren, parents-in-law, and siblings.
Additionally, SB 1383 brings CFRA more in line with FMLA by now allowing for “qualifying exigency” leave. Specifically, a qualifying employee may now request leave for a qualifying exigency related to the covered active duty or call to covered active duty of the employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.
Key Change #3: CFRA leave eliminates prior restrictions
Finally, SB 1383 further expands its protection by eliminating two of its prior restrictions. Specifically, under existing law, a covered employer may lawfully refuse a request for CFRA leave from a “key employee”—that is, an otherwise eligible salaried employee who is among the highest paid 10 percent of the covered employer’s employees. Additionally, under existing law, if both parents of a child are employed by the same employer, the parents were limited to a collective 12 workweeks of unpaid protected leave.
These restrictions are eliminated effective January 1, 2021. Key employees, thus, will receive the same protections as any other employee. Additionally, for parents who are both employed by the same employer, the new law now entitles each of the parents to take up to 12 weeks for CFRA leave.
Key Change #4: Small employer family leave mediation program (AB 1867)
A companion bill to SB 1383, AB 1867 establishes a small employer family leave mediation program for employers with between five and 19 employees. This pilot program allows a small employer to request mediation to resolve an alleged CFRA violation within 30 days of receipt of a right-to-sue notice based on such violation.
If an employer or employee requests mediation, the employee is prohibited from pursuing a civil action until the mediation is complete. In exchange, the employee’s statute of limitations on claims will be tolled until the mediation is complete.
This provision of AB 1867 will take effect when SB 1383 does on January 1, 2021, and will end on January 1, 2024.
Recommendations for employers
While this new law will most impact those employers with five to 49 employees who were not previously covered under the existing CFRA law, all employers regardless of size, should take the following steps to ensure compliance ahead of January 1, 2021:
- Coach your Human Resources personnel and supervisors on the new SB 1383 changes
- Factor in the above-mentioned CFRA changes when tracking CFRA and FMLA leaves, as there will more instances where an employee takes leave under CFRA without having FMLA leave run concurrently
- Revise existing policies and employee handbooks to reflect the expanded CFRA leave applications mentioned above
- Ask your Goldberg Segalla employment attorney any questions you may have in order to ensure compliance with these new provisions
For more information or immediate guidance, contact:
- Jin Oh
- Caroline J. Berdzik
- Peter J. Woo
- Kristin Klein Wheaton
- Or another member of the Employment and Labor practice