California Requires Smaller Employers Provide Family and Medical Leave, With Other Major Expansions

Senate Bill 1383, signed by Governor Gavin Newsom, extends family and medical leave requirements to employers with five or more employees. At the same time, among other changes, the new law expands the family members for whom an employee may take leave to provide care and increases leave available when both parents of a child work for the same employer. These other changes apply to all employers subject to the state’s family and medical leave law.

California’s Family and Medical Leave Law

California first enacted family and medical leave requirements in 1991 through the California Family Rights Act (CFRA). CFRA predated the 1993 enactment of the federal Family and Medical Leave Act (FMLA). Later, California amended CFRA and its implementing regulations so that they conformed with the FMLA in most respects.

In general, the CFRA and the FMLA have allowed qualifying employees to take up to 12 workweeks of leave unpaid in a 12-month period for (1) the employee’s own serious health condition (except for pregnancy or related conditions), (2) to care for a parent, child, or spouse with a serious health condition, and (3) because of the birth, adoption, or placement of a foster child with an employee. An employee taking FMLA or CFRA leave has been eligible for reinstatement to the same or a comparable position upon return from leave, as well as to have group health benefits continue during leave on the same terms as if the employee had continued working during the leave period. To be eligible, employees must have worked for an employer for a year and worked at least 1,250 hours in the previous 12 months. As with the FMLA, CFRA generally has applied to an employer only if it employed at least 50 employees within a 75-mile radius.

CFRA has been different from the FMLA in three important respects. First, it has included state-registered domestic partners within the definition of “spouse.” Second, CFRA has excluded “leave taken for disability on account of pregnancy, childbirth, or related medical conditions” from counting against an employee’s available CFRA leave. Separately, California allows employees of employers with five or more employees to take up to four months of pregnancy disability leave for such reasons. That leave runs concurrently with an employee’s federal FMLA leave, if FMLA applies to the employer. After the expiration of that pregnancy disability leave, an employee then remains eligible for up to 12 workweeks of CFRA leave for baby bonding purposes. Third, effective in 2018, the New Parent Leave Act extended CFRA leave to employees of employers with 20 or more employees within a 75-mile radius insofar as leave for the birth, adoption, or foster care placement of a child.

SB 1383 Extends CFRA Leave to Smaller Employers

SB 1383’s biggest change is its extension of family and medical leave under CFRA to employees of employers with only five or more employees. This change will make an estimated nearly six million California employees eligible for family and medical leave, according to the bill signing announcement from Governor Newsom’s office. SB 1383’s extension to smaller employers applies to eligibility for all types of CFRA leave as of January 1, 2021, including as the bill expanded CFRA leave in other respects.

More Family Members and Other Changes

SB 1383 expanded the family members for whom an employee may take leave to provide care. Eligible employees now will be able to use CFRA leave to provide care for their grandparent, grandchild, or sibling. The bill defined “grandparent” as “a child of the employee’s child,” with “grandparent” meaning “a parent of the employee’s parent.” Separately, CFRA defines “child” and “parent” as encompassing not only biological relationships, but also adoptive, foster, stepparent and stepchild relationships, guardian and legal ward relationships, and the child of an employee’s domestic partner. SB 1383 defined “sibling” as “a person related to another person by blood, adoption, or affinity through a common legal or biological parent.” As a result, CFRA leave to care for family members will extend well beyond what the FMLA allows.

The legislation also allows an employee to take CFRA leave for a “qualifying exigency” related to active military duty, or the call to active duty, by an employee’s spouse, domestic partner, child, or parent. This change recognizes a type of leave currently available under the federal FMLA, but which California’s CFRA had not provided. Yet, this change does not conform with the FMLA in one respect. It allows qualifying exigency leave concerning an employee’s state-registered domestic partner – which the FMLA does not provide.

SB 1383 expanded the parental, or “baby bonding,” leave available when both parents work for the same employer. Rather than only having to provide a combined total of 12 workweeks between those two parents, an employer must allow each of those employees to take up to 12 workweeks for these reasons.

The bill eliminated from the CFRA the so-called “key employee” exception to reinstating certain employees. This seldom-used provision allows an employer to refuse to reinstate an employee after leave if the employee is salaried and among the highest-paid 10 percent of the employer’s employees within 75 miles of the employee’s worksite, and “the refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.” The FMLA contains such an exception, but California employers now will no longer be able to use it with respect to CFRA leave or when leave concurrently qualifies as CFRA and FMLA leave.

Other Important Considerations

The expansion of family and medical leave to smaller employers through the CFRA is a significant change. Most of these employers may have no experience dealing with family and medical leave issues, and will have to prepare. Smaller employers – especially employers at or close to the new minimum threshold of five employees – may encounter inconvenience or even hardship in having to grant required leave and later reinstate an employee upon return. Importantly, however, the CFRA (like the FMLA) does not have any hardship or undue burden exception – or any employer discretion – over whether to grant CFRA leave. If an employee is eligible and qualifies for leave, including providing any required certification, the employer then must grant available CFRA leave.

Under the CFRA, for an employer to be deemed to have granted leave, an employer must give an employee a guarantee of employment in the same or comparable position at the end of the CFRA leave when granting the leave request. The reinstatement cannot be to just any position, even if paying similarly. CFRA requires that an employee’s positon upon reinstatement have “the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.” The FMLA contains a similar requirement, with regulations under both laws having additional details. Even if an employer hired a replacement during an employee’s leave, an employee returning from FMLA and CFRA leave still must be reinstated accordingly.

Another important consideration is that, under federal and California law, an employee may be eligible for additional leave even after using all of the FMLA or CFRA leave available. If an employee requires additional leave because he or she has a position that qualifies as a “disability,” the employee may qualify for additional leave for a definite period as a reasonable accommodation. In that situation, an employer should engage in an interactive process with the employee to determine whether it must grant reasonable accommodation leave.

Furthermore, all employers covered by CFRA – or who will be – must be mindful of the fact that the reasons for which leave may be taken under FMLA and CFRA do not overlap. Depending on the reasons an employee takes FMLA or CFRA leave, an employee may not be limited to 12 workweeks of leave in a year between the two laws. If leave qualifies simultaneously for FMLA and CFRA leave (e.g., leave to care for the employee’s non-pregnancy-related health condition or to care for an ill child or parent), then the employee will be using FMLA and CFRA leave concurrently (if the FMLA applies to the employer as well). However, if only CFRA provides for a particular type of leave, the leave taken for that purpose counts only as CFRA leave and not against an employee’s FMLA leave availability. For example, an employee may take six weeks of CFRA leave to care for an ill domestic partner, grandparent, or sibling. Because the FMLA does not provide for such leave, that time does not count against the employee’s available leave under the FMLA. As a result, California employers subject to both the FMLA and the CFRA must take care to designate and track correctly leave taken under each of these laws.

What to Do Now

SB 1383 is a significant change in family and medical leave requirements for California employers. All employers in California who have at least five employees employed within a 75-mile radius must take immediate steps to be ready to comply with the changes on January 1, 2021. Smaller employers who have not had enough employees for the CFRA to apply – or who only were subject to the New Parent Leave Act – must take steps to begin full compliance for the first time. Employers who already have been subject to the CFRA also must make changes to comply with the expanded leave available. Employers are advised to consult with the employment law counsel to understand the legal requirements and changes correctly in order to assure that they comply.