January 1, 2021 – Expanded Leave Entitlements Under the California Family Rights Act

Effective January 1, 2021, California employers with five or more employees will be required to provide family and medical leave pursuant to a newly enacted version of the California Family Rights Act (“CFRA”).  Senate Bill 1383 also expands the definition of “family members,” allows leave to be taken for additional reasons, and eliminates two existing CFRA exemptions.

Current Law

Currently, the CFRA requires private companies with 50 or more employees within a 75-mile radius of the worksite (and public employers of any size) to provide eligible employees with up to 12 workweeks of unpaid leave during a 12-month period, if needed, due to an employee’s own serious health condition, to bond with a new child, or to care for a  family member with a serious health condition.  To be eligible for leave, an employee must have been employed by the company for at least 12 months and must have worked at least 1,250 hours during the previous 12-month period of employment.

Changes to the CFRA – Effective January 1, 2021

• Expanded Eligibility: Companies with five or more employees will be required to provide unpaid family and medical leave. Governor Newsom stated the expanded eligibility will impact “nearly 6 million Californians.”
• Elimination of the 75-mile Radius Requirement: Additionally, SB 1383 eliminates the 75-mile radius requirement. Thus, if a company has 5 or more employees located anywhere throughout the state, it will be covered by the CFRA.
• Expanded Definition of “Family Members”: Currently the CFRA and the Family Medical Leave Act (“FMLA”) define family members as an employee’s parent, minor child, adult dependent child, or spouse. SB 1383 expands the definition of family members to include grandparent, grandchild, sibling, and domestic partner.  The definition of “child” has been expanded to cover all adult children, regardless of whether they are dependent, and children of a domestic partner.   Because SB 1383 expands the definition of family members to include individuals who are not included in the FMLA’s definition, there is the potential for a California employee working for an employer with 50 or more employees to receive up to 24 workweeks of unpaid leave.  For example, an employee could take 12 workweeks of leave under the CFRA to care for a grandparent and take an additional 12 workweeks of leave under the FMLA to care for a spouse.
• Leave for Military Exigency: Eligible employees will be entitled to up to 12 weeks of unpaid leave due to a qualifying exigency related to covered active duty or call to active duty of an employee’s spouse, domestic partner, child, or parent in the United States Armed Services.
• Leave Entitlement for Parents who Work for the Same Employer: Currently, if both parents work for the same employer, the employer can limit the total amount of leave taken by the parents to bond with the child to a total of 12 workweeks. SB 1383 removes this limitation thereby requiring employers to provide up to 12 workweeks of bonding time to each parent.
• Elimination of “Key Employee” Exception: SB 1383 eliminates the current key employee exception, which allows employers to refuse reinstatement to salaried employees who are among the highest paid 10 percent of the company’s employees.
• California’s New Parent Act Leave is Repealed: The New Parent Leave Act (“NPLA”) provides employees who work for employers with 20 or more employees to take 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child. As SB 1383 applies to employers of five or more employees and provides for leave for new parents, the NPLA is redundant and will no longer be in effect come January 1, 2021.

Mediation Program for Small Employers

While SB 1383 was pending in the legislative process, Governor Newsom signed AB 1867 which, among other things, establishes a “small employer family leave mediation program” applicable to companies with between five and 19 employees.  In order to participate in the mediation program, the employer must request a mediation within 30 days of receipt of a Right-To-Sue letter issued by the California Department of Fair Employment and Housing (“DFEH”).  Once the request is made, the employee cannot pursue a claim in civil court until the mediation is complete.  This mediation program will be in effect until January 1, 2024, unless extended.

Action Items for Employers

1. Create or update policies regarding family and leave entitlement under the CFRA. For employers already covered by the CFRA, update policies to include the expanded definition of family members, include leave related to military exigency, and provide that both spouses of an employer may be eligible to take leave to bond with a child.  Also, the 75-mile radius requirement and the key employee exemption should be removed from any existing policies.
2. Ensure the company is utilizing an updated Notice of Eligibility and Rights and Responsibilities and form Designation Notice to ensure compliance with CFRA, as amended.
3. Determine whether employees will be required to (or permitted to) use paid sick leave, vacation, and/or PTO while out on leave. The company’s policy should be set forth in the Employee Handbook.
4. For companies with five to 19 employees, create a process for reviewing a DFEH Right-To-Sue letter to ensure a timely response if the employer wants to participate in the mediation process.

The Kullman Firm, with licensed California attorneys, regularly advises clients on California employment issues.  If you have questions about COVID-19 or the California legislation discussed above, please contact the Kullman Firm attorney with whom you regularly work for the most current guidance on these matters.