California Family Rights Act Expands To Cover Nearly All California Employers - What You Need To Do Now

By Swerdlow Florence Sanchez Swerdlow & Wimmer

December 14, 2020

On January 1, 2021, the California Family Rights Act (“CFRA”) will significantly expand by applying to all employers with as few as 5 employees and creating the right to take leaves to care for more family members with serious health conditions. As a result of these changes, CFRA will deviate further from the federal Family and Medical Leave Act (“FMLA”), and could, under certain circumstances, create entitlements for employees for up to 24 weeks of protected leave in a 12-month period. Whether you are a small employer who has never dealt with family and medical leave or a larger employer with experience administering FMLA and CFRA leaves, you will be impacted by this new law and must adopt written policies, update your handbook, and train your supervisors on the new requirements. Below is a summary of key aspects of the new law.

CFRA Will Apply To Small Employers With Five Or More Employees.

As of January 1, 2021, CFRA will define “employer” to include all employers with just five or more employees. This includes all types of employers, including public agencies and household employers. In addition, the revisions eliminate the requirement that 50 or more employees work within a 75-mile radius for an employee to qualify for CFRA leave. The new five employee threshold deviates from the FMLA, which continues to limit eligibility for leave to only those employees who work for employers with 50 or more employees within a 75-mile radius.

Employers with 5-49 employees who were not previously covered under CFRA will become covered on January 1, 2021, and will have to provide qualified employees the following leave entitlements:

- Up to 12 weeks of unpaid leave for qualifying purposes in a 12-month period;
- Continuation of health-insurance benefits at the same level as if the employee had been continuously employed during the CFRA leave; and
- The right to reinstatement to the employee’s same job or a comparable position.
- To be eligible for CFRA leave, employees must be employed at least 1 year and have worked 1250 hours during 12 months (which need not be consecutive).

As a result of the expansion of CFRA to employers with 5 or more employees, the existing New Parent Leave Act, which provides CFRA-like bonding leave rights to employers with 20-49 employees, is being repealed as it is no longer necessary.

Additional Qualifying Reasons To Use CFRA Leave.

The new CFRA also broadens the definition of “family member” for whom employees can take leave to provide care. Currently, employees can take CFRA leave for their own serious health conditions, as well as the serious health condition of a spouse, registered domestic partner, parent or child. The new CFRA adds grandparents, grandchildren, and siblings to the list. The new CFRA also expands the definition of “child.” Currently, an employee may only take leave to care for a minor or dependent child. Under the new CFRA, an employee will be able to take leave to care for a domestic partner’s child and for a child with a serious health condition regardless of the child’s age.

Other Key Changes To CFRA.

The new CFRA eliminates the existing restriction that allows an employer who employs both parents of a new child to limit the total amount of CFRA leave for bonding to 12 weeks between the two parents. Both parents now will be entitled to 12 weeks of leave for bonding with a newborn, adopted child, or foster care child.

In addition, the new CFRA eliminates the “key employee” exception to an employee’s right to reinstatement. Under the current law, there is a limited “key employee” exemption that permits an employer to deny reinstatement to an employee who uses CFRA leave if the employee is among the highest paid 10% of employees. By eliminating this exemption, the new CFRA requires an employer to provide a right to reinstatement to all employees who qualify for CFRA leave. As a result of this change, absent fraud, the only permissible instance to deny a right to reinstatement is where the employee’s employment would have otherwise ended or been modified, such as in a layoff.

In conjunction with the CFRA expansion, there will be a mediation pilot program for employers with 5-19 employees and their employees. This program will allow these smaller employers and their employees to request mediation within 30 days of receipt of a right-to-sue notice alleging violation of the new CFRA through the California Department of Fair Employment and Housing (“DFEH”). If either the employer or the employee requests mediation, the employee will not be able to pursue a civil action until the completion of mediation.

Potential Stacking of CRFA and FMLA Leaves.

Because of the expanded reach of the new CFRA, employers covered by both CFRA and FMLA will be at an increased risk of having to provide up to 24 weeks of protected family medical leave under both laws, instead of just 12 weeks of leave in a 12-month period. The FMLA continues to define “family member” as limited to the parents, minor and dependent children, and spouse of the employee. However, an employee who is eligible for both CFRA and FMLA leave, and takes 12 weeks of CFRA leave to care for a grandparent, grandchild or sibling, would be using CFRA leave only and not FMLA leave. The employee then would be able to use up to 12 weeks of FMLA leave to care for themselves, a spouse, child or parent.

Time To Update Your Employee Handbook And Leave Practices.

All employers with five or more employees now need to update their employee handbooks and leave of absence documentation to comply with CFRA, and they must train their staff on the new law.

Employers with 5-49 employees who have not previously been covered by CFRA will need to provide for CFRA leaves of absence. CFRA is a complex law and administering CFRA leave requires knowledge of its interactions with paid leave and its use of specific employee notifications and medical certifications.

Employers with 50 or more employees who have been covered by CFRA and FMLA will need to revise existing leave policies to account for these changes. In addition, employers should ensure that they understand and track when CFRA and FMLA run concurrently versus when they run separately.

In addition, all employers will need to obtain a new CFRA poster from the DFEH and display it beginning on January 1, 2021.

In light of these extensive changes, we recommend you contact your Swerdlow Florence Sanchez Swerdlow & Wimmer attorney to ensure your leave policies and practices are up to date and in line with these new changes to California law.