California Employers Must Prepare for CFRA Leave Expansion

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California lawmakers significantly expanded employee access to family and medical leave under the California Family Rights Act (CFRA). Here's what employers need to know about changes that will take effect Jan. 1, 2021.

"Now employees of all but the tiniest of employers have the right to take unpaid time off for their own serious health condition; for caring for a family member with a serious health condition; and for the birth, adoption or foster care placement of a child," explained David Monks, an attorney with Fisher Phillips in San Diego.

Currently, California businesses with 50 or more employees must provide eligible workers with up to 12 weeks of job-protected, unpaid leave under CFRA and the federal Family and Medical Leave Act (FMLA). California employers with 20 to 49 workers need to provide only the job-protected baby-bonding leave.

Significantly, under SB 1383, CFRA will now cover employers with at least five employees. Providing leaves of absence has traditionally been seen as a hardship for small employers, noted Leonora "Lenny" Schloss, an attorney with Jackson Lewis in Los Angeles. Administering CFRA leave is complicated and can be particularly hard for businesses that may have only one HR practitioner or outsource the HR function altogether.

SB 1383 also eliminates the requirement that eligible employees work at a location where the employer has 50 or more employees within a 75-mile radius. "That means that employers with a large number of employees overall but were not previously covered because the number of employees in California was small, or they were not concentrated around a single worksite, could now be covered where they had not been before," noted Gary McLaughlin, an attorney with Akin Gump in Los Angeles.

Training on the expanded coverage is essential. "All employers should train their staff to properly administer and manage leaves of absence, keeping in mind that disputes involving leaves of absence are one of the most common sources of employment lawsuits," said Mark Payne, an attorney with Troutman Pepper in Orange County.

Expanded Coverage

In addition to applying to smaller businesses, CFRA will now cover:

  • Leave to care for more family members, such as grandparents, grandchildren and siblings, in addition to parents, children, spouses and registered domestic partners.
  • Key employees who are currently exempt under certain circumstances.
  • 12 weeks of baby-bonding leave for both parents, even if they work for the same employer. Currently, parents have to split the leave time.
  • Leave for certain qualifying reasons related to the active military duty of an employee's spouse, domestic partner, child or parent.

Now that CFRA will require employers to provide time off for employees to care for a wider group of family members, CFRA leave will not always run concurrently with FMLA leave. So employees may be eligible to take as much as 24 weeks off under CFRA and the FMLA, Payne noted.

For example, an employee could take 12 weeks of CFRA leave to care for a sibling (a reason that is not covered by the FMLA) and then take 12 additional weeks of FMLA leave to care for a parent (a reason that is covered by both CFRA and the FMLA).

All employers—large and small—will need to ensure that their employment policies and notices to employees are updated to include and address the new qualifying reasons for time off, Payne said. Employers also will need to obtain and display a new poster that includes the updates.

Tips for Employers

CFRA administration can be complicated, Schloss said, and small employers may have difficulty covering an extended absence because they don't have the luxury of shifting work to other employees.

"Hiring temporary staff and not full-time replacements is going to be important," she noted. "This is an area where employers mess up because they have to guarantee reinstatement."

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

McLaughlin at Akin Gump agreed that small employers have the greatest difficulty covering absences for extended periods. "However … the law will impact large employers, as well," he said. Since the new law expands the definition of "family member" and makes other changes, employers that are currently covered will need to update their policies.

Employers that were already covered by CFRA should also consider whether any additional employees in California will become eligible for leave due to the elimination of the 75-mile-radius requirement. "This could include, for example, small groups of employees who work at remote locations in the state," McLaughlin said.

Employers should be on the lookout for revised regulations that reflect the law's changes. "Employers with no HR-experienced personnel should seriously consider retaining a human resources consultant to assist with creating and implementing a CFRA policy and protocol," Fisher Phillips' Monks said, "and all employers should have an employment law attorney available to help with the unusual, tricky, touchy situations that will inevitably arise."

Schloss said employers should be proactive. "Don't wait until you get your first leave request. Get policies ready now, and make sure managers are trained."

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