Employee Leave Rights Expanded Under CFRA to Include Small Employers

Posted: October 2, 2020 |

Governor Newsom signed Senate Bill 1383 which expands the California Family Rights Act (CFRA) to require employers with five or more employees to provide up to 12 workweeks of unpaid protected leave during any 12-month period to an eligible employee (1) to bond with a new child, (2) to care for themselves, a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, or (3) because of a qualifying exigency or call related to covered active duty of an employee’s spouse, domestic partner, child or parent in the U.S. Armed Forces.

The new legislation also expands employee leave rights for employers with 50 or more employees. It broadens the definition of “family members” beyond what is covered under the federal Family and Medical Leave Act (FMLA), which may require large employers to administer leave under the CFRA and the Family Medical Leave Act (FMLA) separately, for the same employee. For example, under the revised CFRA an employee may take up to 12 weeks of protected leave to care for a sibling and then take up to an additional 12 weeks thereafter for the employee’s own illness under the FMLA, for total of 24 weeks of protected leave.

Currently, the CFRA applies to California employers with 50 or more employees within 75 miles of the worksite. Beginning January 1, 2021, California employers with five or more employees are included under its provisions. Here are some takeaways from the new law:

  • The CFRA is expanding to include employers with 5 or more employees rather than 50 or more employees.
  • To be eligible for the protected leave, an employee must have at least 1,250 hours of service with the employer during the previous 12-month period.
  • Family care and medical leave under the CFRA will not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave of absence.
  • The current CFRA applies to employers with 50 or more employees within a 75-mile radius of the worksite but under the amended CFRA, the 75-mile radius requirement has been eliminated.
  • Language allowing employers to refuse reinstatement to “key” salaried employees who are among the highest 10% earners has been eliminated.
  • If both parents work for the same employer, both parents may be eligible to take 12 weeks of leave each. Before the new legislation, parents needing leave for the birth, adoption or foster care placement of a child were entitled to a total of 12 weeks of unpaid leave between them when working for the same employer.
  • The definition of “family member” for whom an employee can take leave has been expanded beyond the employee’s minor child, spouse, and parent. The definition now encompasses siblings, grandparents, grandchildren, domestic partner, and adult children including children of a domestic partner.
  • Because the CFRA expands the definition of “family member” differently than the Family Medical Leave Act (FMLA) it is possible that an employee would be entitled to 12 weeks of unpaid leave under the CFRA that does not run concurrently with leave under the FMLA thus enabling the employee to receive 24 weeks of unpaid leave if providing care to more than one person if one of the individuals does not fall under the FMLA definition of a “family member.”
  • This is not a change, but employers should be aware that they must maintain and pay for coverage under a “group health plan” during the extent of an employee’s leave of absence under the CFRA.
  • The New Parent Leave Act (NPLA) child bonding protections will become part of the CFRA, and the NPLA will be repealed on January 1, 2021.

Virtually all California employers will need to update their policies, employee handbook, and other forms to reflect the changes imposed by this new legislation. The employment attorneys at Ferruzzo & Ferruzzo, LLP are available to answer questions regarding the effect of these changes on your business and best practices to prepare for the new law.

This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group.

Colleen M. McCarthy

Colleen M. McCarthy, Esq. is a Partner and chairs the Firm’s Employment Practices Group. She has dedicated her practice to representing and protecting employers, with a particular emphasis on risk mitigation through preventative counseling and sound practical advice. For almost 20 years, Colleen McCarthy has counseled employers about the complicated employment laws that impact their businesses to ensure that they are in compliance, and to reduce the chance of costly litigation. Colleen McCarthy may be reached by phone at (949) 608-6900 or email cmccarthy@ferruzzo.com.