California Family Rights Act Expanded To Cover Small Employers And More Family Members In 2021
Posted October 12, 2020

On September 17, 2020, Governor Newsom signed Senate Bill (“SB”) 1383 into law. As of January 1, 2021, the majority of California employers will now be required to provide their qualifying employees with up to 12 weeks of unpaid leave per year under the California Family Rights Act (“CFRA”). SB 1383 also expands the scope of “family members” and eliminates the “key employee” exception from the CFRA.

The CFRA originally applied only to employers with 50 or more employees who worked within a 75-mile radius. As of January 1, 2021, all employers with five or more employees must comply with CFRA requirements. There will no longer be any requirement that the employees work within a specified radius.

Covered employers must provide employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period. To qualify for CFRA leave, the employee must have more than 12 months of service with the employer and have worked at least 1,250 hours in the 12-month period before the leave begins.

CFRA leave may be taken for the following reasons:

  • the birth of a child or placement of a child with the employee in connection with an adoption or foster care (the definition of “child” will now include the child of a domestic partner and children of any age);
  • to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;
  • because of employee’s own serious health condition; and
  • 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.

Historically, the leave provided by the CFRA and the federal Family and Medical Leave Act (FMLA) ran concurrently in almost all situations (usually except pregnancy). Now that the allowable reasons for leave have been expanded by SB 1383, it is possible that an employee will be able to take 12 weeks of CFRA leave in addition to 12 weeks of FMLA leave in any situation where the CFRA leave is for a reason not covered by the FMLA. However, this would only apply to employers with 50 or more employees because smaller employers are not covered under the FMLA.

SB 1383 did not change the rules regarding the use of accrued time off during CFRA leave. The employee may elect, or the employer may require, that the employee take their accrued and unused vacation or PTO time for any of the reasons described above, as well as sick time for leave related to the employee’s own serious health condition. The employee shall not use sick time for the other reasons above unless mutually agreed by the employer and employee. Be careful about forcing use of leave time, however, as other overlapping leave laws may not allow that practice.

The CFRA will still require that the employer maintain and pay for group health coverage during the 12-week leave period in the same manner as if the employee had continued to work.

When an employer employs both parents of a child, the employer will now be required to provide each parent with 12 weeks of CFRA leave. Before SB 1383, parents of the same employer had to share the 12 weeks of available leave.

SB 1383 also removes the “key employee” exception, which allowed covered employers to refuse to reinstate an employee to the same or comparable position if the employee was in the highest paid 10% of employees within a 75-mile radius, the refusal was necessary to prevent substantial and grievous economic injury to the operations of the employer and the employer put the key employee on notice that they would not be reinstated to the same or a comparable position. The elimination of this exception will have little practical effect on employers because it was almost impossible to meet the “key employee” exception.

Finally, as of January 1, 2021, SB 1383 will repeal the New Parent Leave Act (“baby bonding”) that applied to employers with 20 or more employees. This section will be moot because the entire CFRA will cover all employers with 5 or more employees.

PRACTICE TIP: Small and large employers must update their leave of absence policies to reflect this change before the law goes into effect on January 1, 2021. Small employers who were not previously covered by the CFRA must now include the CFRA leave laws in their policies. Larger employers must revise their policies to incorporate the changes.

For assistance with updating your employee manual or for questions regarding employment issues specific to your company, contact the employment attorneys at LightGabler.

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