Written by Jeremy Mittman and Adé Jackson

OVERVIEW

There are changes on the horizon to California’s Family Rights Act (CFRA) as a result of Senate Bill 1383 that all employers need to be aware of. 

Under CFRA, covered employers must provide up to 12 weeks of unpaid leave during each 12-month period for purposes of family and medical leave.

Governor Newsom recently signed SB 1383, which expands the CFRA in ways that both small and large California employers need to prepare for. These major changes include: (1) CFRA now applies to employers with five or more employees, and (2) the scope of “family members” for whom employees can take leave has been expanded to include additional categories.

These changes are scheduled to go into effect on January 1, 2021.  This means covered California employers have a rapidly approaching deadline to take action and ensure their policies and practices are compliant.  

FOR SMALLER EMPLOYERS – EXPANDED SCOPE OF CFRA

The CFRA currently applies to private employers with 50 or more employees within 75 miles of the worksite. SB 1383 broadens the CFRA to apply to private employers with five or more employees and eliminates the requirement that employees work within 75 miles of the worksite in order to qualify. This is a major shift in which employers are required to provide family and medical leave (including baby bonding leave) in California.  This also means that the relatively recent “New Parent Leave Act” (which provided 12 weeks of baby bonding leave to employees who worked for an employer with 20 or more employees) is no longer necessary (and repealed as of January 1, 2021), since such leave is now available to employers with over 5 employees.  

FOR LARGER EMPLOYERS – BROADER MEANING OF “FAMILY MEMBERS”

One of the main purposes of CFRA is that it allows covered employees to take unpaid leave for various reasons, including to care for a “family member” with a serious health condition.    CFRA currently defines “family” to include a minor child (unless the child is an adult and dependent child), a spouse, or a parent. In a time where families and workforces are being hard-hit by Covid-19, this type of unpaid leave has become even more significant to both employees as well as employers. 

SB 1383 makes substantial changes to the definition of covered “family members” under the CFRA.  First, the list of family members is expanded to include siblings, grandparents, grandchildren, and domestic partners.  Second, the definition of “child” is expanded to cover all adult children (regardless of whether they are dependent or not) and children of a domestic partner.

As a result, large California employers need to be aware of the expanded definition of “family members” under the CFRA before SB 1383 becomes effective.  Following January 1^st, California employers, large and small, will have to provide leave to employees who are caring for these family members with serious health conditions. Especially for large California employers, this requires close analysis of previous policies to ensure compliance with the CFRA’s new definition of “family members.” Of particular significance, it should be noted that an employee who takes 12 weeks of CFRA leave in 2021 to care for a family member, e.g. a grandparent, would also have an additional 12 weeks to care for certain other family members, e.g. a parent, under the FMLA (which doesn’t cover grandparents or siblings).

THREE ADDITIONAL CHANGES TO CFRA

The upcoming changes to the CFRA also include three additional changes that all employers need to be aware of. 

1. Two parents, one employer:  First, it deletes the provision of the CFRA that specified that if both parents work for the same employer, the employer is not required to provide these employees more than a total of 12 weeks for leave in connection with the birth, adoption, or foster care placement of a child. SB 1383 now provides that such an employer is now be required to provide 12 weeks of leave to each employee so situated.
2. No “key employees”:  Second, SB 1383 removes language from the CFRA that authorizes an employer to refuse reinstatement to salaried employees who are among the highest 10% of the employees and where refusal is necessary to prevent substantial and grievous economic injury.
3. Military employees: Third, the new law requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to 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.

MAJOR TAKEAWAYS

Clearly, employers with less than 50 employees are going to be affected the most by this new law. But, as evident from the above, the changes to CFRA affect all employers, regardless of size, and all employers should ensure their policies are CFRA compliant—2021 is right around the corner.