On September 17, California Governor Gavin Newsom signed Senate Bill 1383, which repeals the current version of the California Family Rights Act (CFRA) and replaces it with a newly expanded version to take effect on January 1, 2021.
Current CFRA-FMLA Interplay
Currently, CFRA largely tracks its federal Family Medical Leave Act (FMLA) counterpart by allowing employees up to 12 weeks of protected leave for family or medical care purposes. Both FMLA and the current CFRA apply to employers with 50 or more employees with the same eligibility requirements, including that an employee has (1) worked for the employer for at least 1,250 hours in the 12-month period before taking leave; (2) worked for the employer for at least 12 months; and (3) worked at a location with at least 50 employees within a 75-mile radius. With the exception of the ability to take military-related leave under FMLA, both CFRA and FMLA allow employees to take leave for the same qualifying reasons, including (1) to care for an employee’s own serious health condition; (2) to care for serious health conditions of certain family members; and (3) following the birth, adoption, or placement of a child.
Due to these similarities and as allowed under CFRA, employers often designate an employee’s leave under CFRA to run concurrently with FMLA leave. This effectively allows employers to limit an employee’s total amount of protected leave under CFRA and FMLA to a total of 12 weeks during a 12-month period (except that California’s separate Pregnancy Disability Leave Act requires up to four (4) months of additional time off, which is not required under FMLA).
SB 1383’s Updated CFRA - Effective 2021
SB 1383 replaces the current CFRA with an updated version in 2021 that expands its breadth and application. Specifically, the new CFRA:
- Now covers smaller employers with five (5) employees or more and eliminates the current CFRA’s geographical proximity requirement that employees work at a location where the employer has 50 or more employees within a 75-mile radius.
- Now requires leave to care for a wider group of defined family members, including grandparent, grandchild, sibling, spouse, domestic partner, and a domestic partner’s child.
- Adds certain qualifying military exigencies as a reason to take CFRA leave.
- Expands baby bonding leave by allowing parents with the same employer to each take 12 weeks of leave.
- Eliminates the “key employee” exemption currently permitted under CFRA.
- Repeals the now-redundant requirements of California’s New Parent Leave Act (which required employers with 20 to 49 employees to provide up to 12 weeks of unpaid leave to bond with a newborn, adopted, or foster child).
2021 CFRA vs. Current CFRA
The below chart illustrates key differences between the current and the new 2021 CFRA.
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Current CFRA
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2021 CFRA
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Covered Employers
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Companies with 50 or more California employees within 75 miles
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Companies with five (5) or more California employees, without regard to geographical proximity
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Eligible Employees
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-Has been employed for at least 12 months prior to taking leave
-Has worked at least 1,250 hours during the 12 months prior to taking leave
-Works for an employer with at least 50 full-time or part-time employees within 75 miles of the employee’s worksite
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-Has been employed for at least 12 months prior to taking leave
-Has worked at least 1,250 hours during the 12 months prior to taking leave
-Works for an employer with at least five (5) full-time or part-time employees within 75 miles of the employee’s worksite
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Qualifying Reasons for Leave
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-Birth, adoption, or foster care placement of child
-Employee’s own serious health condition
-Serious health condition of an employee’s child, parent, spouse, or registered domestic partner
“Child” includes a biological, adopted, or foster child, a stepchild, a legal ward, or a person to whom the employee stands in loco parentis
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-Birth, adoption, or foster care placement of child
-Employee’s own serious health condition
-Serious health condition of an employee’s child, parent, grandparent, grandchild, sibling, spouse, or domestic partner
“Child” includes a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or a person to whom the employee stands in loco parentis
-Military-related leave for qualifying exigency for covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent
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Benefits
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Up to 12 workweeks of unpaid job-protected leave with reinstatement and continuation of health insurance benefits
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Same as current CFRA
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Bonding Limitations
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Employers that employ parents of the same child may limit unpaid protected leave to a total of 12 workweeks between both parents
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Employers that employ parents of the same child must grant 12 workweeks of unpaid protected leave to each parent
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Exemptions
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Allows employer to refuse reinstatement to a salaried “key employee” returning from leave if:
-The employee is among the highest paid 10% of employees within 75 miles of the employee’s worksite, and
-The refusal is “necessary to prevent substantial and grievous economic injury to the operations”
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No “key employee” exemption available
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Potential Pitfalls and Complications
Employers and their HR teams should understand these nuances so they are ready to appropriately respond to and designate employee requests for leave come January 1. Instead of presuming that an employee’s CFRA and FMLA leave may run concurrently, employers must now carefully consider the qualifying reason for leave to determine whether the employee’s leave triggers CFRA, FMLA, or both. For instance, an employee who requests leave to care for a grandparent will qualify for CFRA, but not FMLA. Likewise, an employee assigned to a smaller satellite office with just five (5) employees may qualify for CFRA, but not FMLA (which only applies to employees who work at a worksite with at least 50 employees within a 75-mile radius).
This expansion of CFRA-qualifying reasons also creates the potential for employees to take up to a total of 24 weeks of leave in a 12-month period — 12 weeks under CFRA and 12 weeks under FMLA. For example, if an employee takes leave under CFRA to care for a grandparent (which is not covered under the FMLA), that same employee may also be eligible to take 12 weeks of additional leave to care for his own medical condition under FMLA (because that time off is covered under the FMLA, and the employee did not use FMLA in taking time off to care for his grandparent). These differences could prove further complicated if the Families First Coronavirus Response Act (FFCRA) is extended into 2021 because the paid leave for COVID-19-related childcare issues under the Emergency Family and Medical Leave Expansion Act (EFMLEA) runs concurrently with an employee’s FMLA leave.
The 2021 CFRA also expands family and medical care leave to small employers with just five (5) employees, many of which have no prior experience in managing FMLA or CFRA leaves. These small employers — already hit hard by the COVID-19 pandemic — must now comprehend and administer CFRA’s technical requirements, including mandatory posters, new policies, customized notices of leave rights and designation, and guaranteed job reinstatement upon returning from leave.
The end of the year presents an ideal time for employers to review and update their employment policies and practices to ensure compliance with new legislation for the coming year. With 2021’s expanded version of CFRA, employers — both big and small — should start implementing or updating their family and medical care policies and designation notices to prepare for its effect on their operations come January 1.
