By Kevin Cleveland and David L. Cohen
In a move that is bad for small employers in California, SB 1383 has been signed into law making major changes to the California Family Rights Act (CFRA). Amongst other things, it will require employers with five or more employees to provide CFRA leave.
The CFRA currently applies to companies with 50 or more employees within a 75 mile radius. It requires companies to provide up to 12 weeks of unpaid job and benefit protected leave during a 12 month period to employees who have worked more than 1250 hours during the previous year and have worked for the employer for more than 12 months. The leave can be used to take care of an employee’s own serious health condition, to bond with a new child, or to care for a qualifying family member with a serious health condition. However, California more recently lowered the requirement to 20 employees for baby bonding leave. Before the passage of SB 1383, CFRA largely mirrored the Federal Family Medical Leave Act (“FMLA”) in terms of which employees it protected and what constituted family leave.
SB 1383 makes the following changes to current California law effectively January 1, 2021:
1. It lowers the employee requirement from 50 down to five employees.
2. It eliminates the 75-mile radius requirement to be a covered employer.
3. It keeps the requirement that employees must have worked for the company for at least 12 months and have worked 1250 hours in the prior 12 month period to be eligible.
4. It adds coverage for a “qualifying exigency” for the active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces. This change allows CFRA to mirror leave available under the FMLA more closely.
5. It expands the family members you can take care of while on a CFRA leave. Specifically, it broadens the prior definition from an employee’s parent, child, spouse, or domestic partner to include a grandparent, grandchild, or sibling with a serious health condition.
6. It removes the exception which allowed employers to not reinstate highly compensated/key employees in certain instances.
7. It removes the limitation on leave to care for a child when both parents work for the same employer. Previously the two parents combined could only take 12 weeks of leave, now they will have 24 weeks available.
8. These changes will take effect on January 1, 2021 and will replace the current version of Government Code section 12945.2 and will eliminate current Government Code section 12945.6 (requiring baby bonding leave for companies over 20 employees).
It is worth noting that grandparents, grandchildren, and siblings are not covered under the FMLA. So if an employee who qualifies for both CFRA and FMLA were to take CFRA leave to care for a grandparent, grandchild, or sibling, they would not exhaust their FMLA leave. As a result, they could still take FMLA leave if they had a serious health condition of their own to deal with; if they have to take care of a spouse, child, parent, or domestic partner; baby bonding; or for a qualifying exigency relating to service in the Armed Forces (as discussed above). However, CFRA and FMLA leaves may still run concurrently as long as the employee qualifies for leave under both laws.
Key Takeaway
Since Governor Newsom signed this bill into law, any company employing five or more will now be required to offer eligible employees CFRA leave January 1, 2021. In response, those companies will want to draft updated leave policies and institute leave procedures for the identification and handling of CFRA leaves once the law is in effect. Larger companies with over 50 employees who were already providing CFRA, will still need to update their policies and forms due to the changes in what CFRA covers in time for the January 1, 2021 implementation date.