Dec 06, 2020
The California Family Rights Act: A Dramatic Expansion Brings Leave Requirements to Small Employers
Dec 06, 2020
By Lisa Spann Maslow
Starting January 1, 2021, a dramatic expansion of the California Family Rights Act (CFRA) requires California employers with a mere five or more employees to grant workers up to 12 weeks unpaid leave per year for family care, medical leave and/or military family leave.
To qualify for leave, an employee must have completed at least one year’s service (including 1,250 hours worked in the preceding 12 months). An employer must reinstate the employee to the same or a comparable position upon termination of the leave.
The new law repeals and replaces both the existing CFRA and the New Parent Leave Act, which currently apply to employers with at least 50 and 20 employees, respectively. The 2021 CFRA no longer requires that an employee work within 75 miles of other employees in order to qualify for leave—an important exception for employee coverage under the federal Family Medical Leave Act. This means that California employers with 50 or more employees—already subject to state and federal family medical leave laws—should review their existing leave policies to ensure compliance with the amended CFRA.
Medical leave covers employee absences due to a “serious health condition” that makes an employee unable to perform his or her job functions, except for leave due to an employee’s pregnancy, childbirth or related medical conditions (which is protected under a different state law).
Serious health condition means an illness, injury, impairment or physical or mental condition that involves either:
- Inpatient care in a hospital, hospice, or residential health care facility, or
- Continuing treatment or continuing supervision by a health care provider.
Serious health conditions covered by CFRA may also be subject to workers’ compensation law or eligible for EDD State Disability Insurance benefits.
Pregnant employees have a separate right to up to four months job-protected leave for pregnancy and maternity-related disability under the California Fair Employment and Housing Act (FEHA). This right applies to employees regardless of length of service who work for an employer with five or more employees.
Family Care Leave.
Family care leave covers:
- Birth of an employee’s child, or the placement and initial care of an adopted or foster care child; and
- Care of an employee's spouse, domestic partner, child, parent, grandchild, grandparent, or sibling who has a serious health condition.
Both types of family leave are eligible for up to eight weeks of EDD Paid Family Leave Insurance benefits.
Military Family Leave.
Military family leave covers:
- Leave because of a “qualifying exigency” related to the “covered active duty” or call to covered active duty of an employee's spouse, domestic partner, child or parent in the Armed Forces of the United States, as specified in section 3302.2 of the California Unemployment Insurance Code.
- Covered active duty means, with respect to a member of the regular Armed Forces of the United States, duty during the deployment of the member to a foreign country and, with respect to a member of the reserve components of the Armed Forces of the United States, duty during the deployment of the member to a foreign country under a federal call or order to active duty.
- Qualifying exigency is defined at great length in UIC section 3302.2.
Military family leave is eligible for up to eight weeks of EDD Paid Family Leave Insurance benefits.
Generally Applicable Requirements.
Employee Notice Requirements
- If an employee’s need for leave is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
- If the employee’s need for leave is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
Medical Certification Requirements
An employer may require that leave requests due to the serious health condition of an employee or the employee’s family member be supported by a certification issued by the “health care provider” of the employee or family member. That certification shall be sufficient if it includes all of the following:
- The date on which the serious health condition commenced;
- The probable duration of the condition;
- For employee medical leave, a statement that, due to the serious health condition, the employee is unable to perform their job function;
- For family care leave, a statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
If additional leave is required beyond the time estimated by the health care provider, the employer may require that the employee provide subsequent recertification of the need for leave.
Health care provider means any of the following:
- A physician, surgeon, osteopathic physician or surgeon licensed in California or in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
- Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the federal Family Medical Leave Act.
Employers may not directly contact a health care provider for certification or other medical information about an employee or employee’s family member. Employees must communicate certification requests to the health care provider. DFEH has a model CFRA medical certification form on its website. Note that a separate certification form must be used for FEHA pregnancy/maternity disability leaves.
Compensation During Leave
- Employees may be required to use accrued vacation during any type of CFRA leave.
- Employers may require employees to use accrued sick leave during leaves due to the employee’s serious health condition. Both employees and employers must agree whether accrued sick leave may be applied during leaves to care for an ill or injured family member.
- Whether an employee uses paid leave benefits during CFRA leave may impact an employer’s duty to continue to provide paid health and welfare group insurance benefits, as discussed below.
- Vacation, sick leave or other employer paid leave benefits must be integrated with EDD benefits (SDI or PFL) received during CFRA leave to equal no more than 100 percent of the employee’s regular pay.
Group Health Insurance Benefits
- Employers with 50 or more employees must continue to provide health insurance coverage during CFRA leave for up to 12 weeks under the same conditions as coverage would have been provided if the employee had been actively at work. An employee may elect to continue medical insurance coverage for dependents at the employee’s expense during leave.
- Employees who work for smaller companies or firms shall continue to be entitled to participate in their employer’s group health plans at their own expense during leave. However, their employer must continue to provide health insurance coverage as if the employee were working during the period of CFRA leave in which an employee’s accrued vacation or sick leave is applied.
- Employees may be required to pay premiums at the group rate for coverage under group life insurance, short-term or long-term disability or accident insurance, or other similar employee benefit plans during the period of unpaid leave (i.e., when no accrued vacation or sick leave is used). The nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
Starting January 1, 2021, most California public and private employers will be subject to the sweeping new requirements of the California Family Rights Act. The amendments to CFRA affect employers with as few as five employees. CFRA does not require any changes in existing collective bargaining agreements during the life of the contract “or until January 1, 1993, whichever occurs first.” (Apparently the legislators and Governor did not read through the end of the amended statute.)
CFRA family care, medical and family military leave will soon be a right, not a benefit, for most California employees with at least one year’s service. It will be illegal to refuse an eligible employee’s request for CFRA leave, or to discriminate or penalize an employee for requesting or taking CFRA leave. Employers should update their leave policies to ensure compliance with the new law.
Lisa Maslow is a labor and employment law attorney and independent workplace investigator based in Mill Valley. She specializes in helping employers and employees avoid needless litigation through compliance or prompt resolution of wage and hour, discrimination and other employment law disputes. Lisa is a member of the MCBA Labor and Employment Law and Diversity sections, the Association of Latino Marin Attorneys (ALMA), and Marin County Women Lawyers. She may be contacted at the Law Offices of Lisa Spann Maslow, P.C., 415/380-9470, or email@example.com.