Expansion of the CFRA: Good News for Employees and Tough News for Employers in Small Companies

The California Family Rights Act (CFRA), at California Government Code sections 12945.1 to 12945.2, is a California state law that has applied in the past to employers with 50 or more employees and permits employees to take up to twelve (12) weeks of unpaid and work-protected leave for various personal or medical reasons. In September 2020, Governor Gavin Newsom signed Senate Bill 1383, expanding the scope of CFRA as of January 1, 2021 to obligate employers with only five (5) or more employees to provide CFRA leave, for a larger number of reasons.

In this article, we compare some of the key provisions under the existing law with the new provisions in the amendment that was effective January 1, 2021.

Provisions Under the Former CFRA

As noted above, the former CFRA only covered employers with 50 or more employees, and at least 50 company employees needed to work within 75 miles of the worksite of an employee who applied for CFRA leave.  An employee qualifies for CFRA leave if they have worked for the employer for at least one year and have accumulated at least 1,250 work hours in the 12 months before the requested leave.

Employees who qualify under CFRA are eligible for up to 12 workweeks of unpaid, work-protected leave, and under the pre-2021 law, an employee could request leave if they:

• had any serious health condition that interfered with their ability to work, apart from a pregnancy-related disability;
• needed to care for a newly-born child, or a newly-adopted child; or
• needed to care for their domestic partner, spouse, child, or parent who has a medical condition.

Provisions Under the New CFRA

Senate Bill 1383 changed several requirements as of January 1, 2021.  Here, we discuss four significant changes.

First, CFRA now covers smaller employers with only five or more employees, who now must provide employees up to 12 weeks of unpaid, but job-protected leave. This change is a significant one, considering that the impact of an absent employee of a small team, for example, a “mom and pop” shop, for three months could place a large burden on the other employees and business operations.

Second, the new law expanded the definition of a “family member” whose needs trigger an employee’s CFRA leave.  An employee does not only qualify for leave if they need to care for their spouse, child, domestic partner, or parent. Under the new CFRA, an employee may take leave to care for other family members with serious medical conditions, such as their siblings, adult children, grandparents and grandchildren.

Third, the requirement for 50 employees within a 75-mile radius of the requesting employee’s worksite was eliminated.

Fourth, leave has been expanded to cover the employee’s child-bonding, so that both parents are eligible to take separate CFRA leave, rather than only one.

Comparison with the Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA), at 29 U.S.C. section 2601, et seq., mirrors many provisions of the pre-2021 CFRA. As a few examples of differences, pre-2021 and current FMLA covers pregnancy disability leave and CFRA does not; FMLA and the pre-2021 CFRA provided that the qualifying family members justifying employees’ leave are children, spouses, and parents; only one parent is eligible for child bonding leave under FMLA; and FMLA provides up to 26 weeks of job-protected leave in one year for an employee to care for the serious injury or illness of a family member in the Armed Forces or is providing military caregiver leave.

Under the new CFRA, an employee can take their 12 weeks of leave to care for their grandparent, for example, and then the same employee can take another 12 weeks of leave to care for their child under the FMLA. This means that an employee in a small company can potentially take a leave of up to 6 months, while the employer must hold their job open. If the employee is taking leave to care for a service member under certain circumstances, the FMLA leave alone could extend to 26 weeks, and the CFRA leave could extend for another 12 weeks, for a total of 38 weeks.

Some Limitations Eliminated

Apart from providing new provisions, the new law also eliminated some limitations. For instance, Senate Bill 1383 does not allow employers to combine the leave of two parents who work in the same company when they want to take their leave because of:

• the birth of a child; or
• the adoption or foster care placement of a child.

An employer covered by the new CFRA must allow each parent  to take their 12 weeks of unpaid, work-protected leave.  This could mean that a married couple employed in a small, five-employee business could both be absent for 12 weeks concurrently, or could take 12 weeks each, sequentially, to render the employer short-handed for 24 weeks.

Small companies now must update their policies, forms and handbook, so that they will comply with the new law, already in effect .  Otherwise, an employee could bring a claim, or staff could be misled about their rights.

Reach Us for More Information

To get more information on the newly signed SB 1383, call the Desert Hot Springs employment law attorneys for employees at Sloat Law Group today at 760-779-1313.

Resource:

edd.ca.gov/disability/faqs-fmla-cfra.htm