Changes Coming to California Family Leave Law for Employers with 5+ Employees

In an update we emailed out earlier this month to our Weekly Brief subscribers, we noted that the laws surrounding worker leave in California are in a state of flux. A spotlight was placed on the upcoming changes to protected leave entitlements for employees, which will become effective January 1, 2021. This blog post will highlight the significant changes for small business in California.

The California Family Rights Act (CFRA)

The California Family Rights Act outlines leave entitlements for California workers. At present, companies with 50 or more employees are required to provide eligible employees up to 12 weeks of protected leave annually following the birth or adoption of a child or to recuperate following a serious illness or injury. Employees may also use the leave entitlement to care for a parent, spouse, domestic partner, or child with a serious health condition.

The scope of those laws will be significantly extended come January first of next year when Senate Bill No 1383 comes into effect.

SB1383 repeals and replaces the current California Family Rights Act and eliminates the New Parent Leave Act. You can read SB 1383 here.

The Expanded Scope of the CFRA

There are a number of significant changes coming under the expanded scope of the CFRA, including:

Expanding the Scope of Eligible Employers

Currently, CFRA applies to employers with 50 or more employees.  The new CFRA expands coverage to small businesses.

Employers with five or more employees will now be required to provide eligible employees with 12 weeks of protected leave.

Under the current CFRA, for an employee to qualify for CFRA leave, the employee must work at a site that has 50 or more employees within a 75-mile radius.

This means businesses with as few as five employees company-wide will be required to provide protected leave to eligible employees.

Larger companies with a distributed workforce or several smaller offices will now also fall under the scope of the CFRA.

More Family Members Fall Under the Purview of the CFRA

Employees will now be permitted to take protected leave to care for additional family members including:

– a parent,

– a grandparent,

– a grandchild,

– a sibling,

– a spouse or domestic partner, or

– a child

The definition of a ‘child’ includes biological, adopted, or fostered children, as well as a stepchild, a legal ward, or a child of a person standing in loco parentis. The definition of parent reflects these same relationships.

Significantly, the legislature expanded the definition of “child” to include a domestic partner’s child and a child of any age, not just a minor child.

Definition of Eligible Employees under the CFRA

Not all your employees will be eligible for protected leave, however. Employees must have worked for you for 12 months and during the previous 12-month period, they must have worked at least 1,250 hours.

Baby Bonding Leave

Under the current CFRA, an employer is only required to provide 12 weeks total for baby bonding leave if both parents work for the employer.

The new CFRA eliminates this restriction. This means employers must provide both employees with 12 weeks of leave, for a total of 24 weeks of baby bonding leave.

California Employees May Be Eligible for 24 weeks of Protected Family & Medical Leave

California employers who also are covered by the Family and Medical Leave Act are faced with an increased risk of having to provide 24 weeks protected leave to eligible employees.

Where a leave qualifies for both FMLA and CFRA, the leave runs concurrently. But, if a leave qualifies only for the CFRA, then that 12-week leave entitlement would be in addition to the 12-week entitlement allowed by the FMLA.

Here’s what that looks like in practice:

If an employee uses 12 weeks of CFRA leave to care for an ailing grandparent, the employee would still be entitled to 12 weeks of protected leave for a qualifying reason under FMLA.

Leave Entitlements Under the FMLA

The Family and Medical Leave Act applies to employers with 50 or more employees. Employees are eligible for FMLA leave if they meet three specific requirements.

First, the employee must have worked for the employer at least 12 months in total. Next, they must have worked for an employer for at least 1,250 hours over the past twelve months. Finally, they must work at a location where the company employs 50 or more employees within 75 miles.

Additionally, employees are only entitled to the 12 weeks leave in the following circumstances:

–  For the birth and care of the newborn child of an employee;

–  For placement with the employee of a child for adoption or foster care;

–  To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or

–  To take medical leave when the employee is unable to work because of a serious health condition.

You can read more about the FMLA on the Department of Justice webpage.

Steps Towards Compliance for Employers

California employers should start preparing to comply with the new laws as soon as possible.

You’ll need to take the following actions:

(1) Amend your handbook (i you have one) to include a CFRA policy.

(2) Allocate a member of your managerial team to handle leave requests (if you don’t have a dedicated HR team).

(3) Make Employee Leave Request Forms available.

You can create your own, but we anticipate that the California Government will publish appropriate leave certification forms.

(4) Display the updated CFRA poster in your workplace. It will be available here in due course.

(5) Take time to understand your rights as an employer.

Seek Help From CGL’s Attorneys

If you’re uncertain about your workplace obligations, reach out. Our experienced attorneys are here to ensure your workplace documents and processes are compliant.

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