California Bill Will Broaden Leave to Care for Designated Person

Editor's Note: Gov. Gavin Newsom signed the bill on Sept. 29.

​The California Legislature recently passed a bill that would guarantee up to 12 weeks of unpaid leave to care for a designated person with a serious illness. Legislators sent it to Gov. Gavin Newsom, who has until Sept. 30 to sign or veto it.

By amending the California Family Rights Act (CFRA), the bill would expand the definition of who an employee could take leave to care for. The bill defines "designated person" as "any individual related by blood or whose association with the employee is the equivalent of a family relationship." Employers can limit employees to one designated person per 12-month period.

The bill is "perhaps reflective of a concern that the statutory focus upon nuclear family relationships for leave purposes ignores modern realities and so-called chosen families," said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego.

"My guess is that [the bill] will be signed into law," said Michael Nader, an attorney with Ogletree Deakins in Sacramento, Calif.

Original Statute

The CFRA originally passed in 1993 and has seen several expansions since then. It now covers private employers with five or more employees.

It applies to employees with more than 12 months of service with the employer, as well as at least 1,250 hours of service with the employer during the 12-month period before the leave starts. It's job-protected leave, which means after the leave ends, the employer must reinstate the employee to the same job or a job that's comparable in duties, location, seniority, pay and benefits.

The CFRA guarantees unpaid leave for the following reasons:

• Birth of a child, including the child of the employee's domestic partner.
• Placement of a child for adoption or foster care.
• Caring for a child, parent, parent-in-law, spouse, registered domestic partner, sibling, grandparent or grandchild with a serious health condition.
• The employee's serious health condition, excluding pregnancy.
• A qualifying military exigency related to the call to active duty of an employee's spouse, domestic partner, child or parent in the U.S. Armed Forces.
  

It would be unlawful for an employer to fire, fine, suspend, discriminate against or refuse to hire someone because they exercised their right to take family leave.

Employers can require employees to submit certification from a health care provider verifying the serious health condition of the individual requiring care. Employers must continue workers' health insurance while they are on leave but do not have to make pension or retirement plan payments for employees during leave periods. When the need for leave is foreseeable, employees must provide their employer with reasonable advance notice of the need for the leave.

Using standard documents for leave requests can help employers keep track of the leave and ensure that they are complying with the law.

"Consider creating and implementing forms to satisfy documentation requirements under the CFRA, such as for employees to request family medical leave," recommended Jessica Mead, an attorney with Collins + Collins in South Pasadena, Calif. "Supervisors and human resources staff should be trained on CFRA requirements, including documentation and timing requirements."

If the bill becomes law, "California employers will need to develop new procedures to manage the risks related to leave requests from designated persons," including "increased risks of retaliation and wrongful termination claims," Nader said.

Leave Benefits

In recent years, some states and cities have gone beyond what's mandated in the federal Family and Medical Leave Act.

Eleven states—California, Colorado, Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington—and the District of Columbia require employers to offer paid family and medical leave, funded through employee-paid payroll taxes, according to the National Conference of State Legislatures.

At least 85 percent of U.S. employers offer up to 12 weeks of unpaid leave to care for immediate family, while 35 percent offer up to 12 weeks of unpaid leave to care for an extended family member, according to the Society for Human Resource Management's 2022 Benefits Survey. Thirty-one percent of employers provide paid leave to care for immediate family, while 17 percent provide paid leave to care for an extended family member.