Big Changes to the California Family Rights Act
On September 19, 2020, Governor Gavin Newsom signed into law a sweeping amendment to California's Family Rights Act (CFRA). Effective January 1, 2021, not only will CFRA apply to employers having as few as five employees, but it will also extend leave rights to employees who care for grandparents, grandchildren, siblings, adult children, and other family members with serious medical conditions.
It is not only the dramatic expansion of the application of CFRA to much smaller employers that is significant. Because the amendments create a definition of "family member" that is broader than in the federal Family and Medical Leave Act (FMLA), employers large enough to be covered by both CFRA and the FMLA1 will be faced with a "stacking" problem: when CFRA and the FMLA overlap, time taken off can be treated as covered by both laws.
But when CFRA extends a right that does not exist under the FMLA, e.g., caring for grandparents, an employee taking that time off will not be using FMLA-provided time and the FMLA entitlement will remain available for use by the employee for a FMLA leave if the employee meets FMLA eligibility requirements, e.g., caring for a spouse.2 Thus, employees could conceivably use up to 24 weeks of leave during a rolling 12-month period under the two laws.
Here is a summary of the changes to CFRA and a comparison between the new CFRA as amended and the FMLA:
For a PDF version of this chart, click here.
Comparisons |
CFRA before 1/1/21 |
CFRA as amended, effective 1/1/21 |
FMLA compared to CFRA, as amended |
| Employers Covered | 50 employees for most reasons; 20 employees for baby bonding | Five or more employees3 | 50 employees for each working day during at least 20 calendar weeks in the current or preceding calendar year |
| Employee Eligibility | Employed 1 year + 1,250 hours worked during 12 months preceding leave, and employee must work at a location that has 50 employees within a 75-mile radius | Employed 1 year + 1,250 worked during 12 months preceding leave (can be non-consecutive; note that there is no longer a 75-mile radius requirement)4 | Employed 1 year + 1,250 hours worked during 12 months preceding leave, and employee must work at a location where 50 employees are within a 75-mile radius |
| Exceptions to Employee Eligibility | Employee is salaried and among the highest paid 10% | None | Employee is salaried and among the highest paid 10% |
| Amount of Leave | No change | 12 weeks within a 12-month period; 12 months need not be consecutive; leave can be taken intermittently | Same as CFRA |
| Reason for Leave - Employee's Own Health | No change | Employee's own serious health condition | Same as CFRA |
| Reason for Leave - Family Member's Health | Serious health condition of: child (minor or dependent adult), parent, spouse | Serious health condition of: child of any age, parent (broadly defined), grandparent, grandchild, sibling (broadly defined), spouse, domestic partner |
Serious health condition of: child (minor or dependent adult), parent, spouse |
| Reason for Leave - Bonding With Child | Born, adopted, or foster-placed within one year of event – only one parent eligible |
Born, adopted, or foster-placed within one year of event – both parents eligible |
Born, adopted, or foster-placed within one year of event – only one parent eligible |
| Reason for Leave - Military Exigency | Not covered | 12 weeks of leave in a 12-month period for reasons related to deployment or military activities of employee's spouse, domestic partner, child or parent who is a member of the Armed Forces | Same as CFRA except domestic partner not covered |
| Military Caregiver Leave | Not covered | Not covered | FMLA provides up to 26 weeks per 12-month period to care for ill service member with a "serious injury or illness." The first 12 weeks may run concurrently with CFRA if the family member is covered under both CFRA and FMLA |
| Relationship to Pregnancy Leave | No change | Pregnancy disability leave up to 4 months per pregnancy subject to medical confirmation of disability is a separate right and does not count as CFRA leave | Time taken for pregnancy disability counts as FMLA leave |
| Documentation Permitted - Employee's Own Health | No change | Limited to date condition commenced, probable duration, statement that employee is unable to perform employee's position; 2nd and 3rd tie-breaking opinions allowed |
Employer can require information about diagnosis (not allowed under CFRA |
|
Documentation Permitted - |
No change | Limited to date condition commenced, probable duration, estimate of the time employee needs to provide care, confirmation that health condition warrants participation of a family member |
Employer can require information about diagnosis (not allowed under CFRA) |
| Health Insurance During Leave | No change | Premiums paid by employer as though employee were working | Same as CFRA |
| Payment During Leave | No change | Unpaid.5 For employee's own health condition, employee must be permitted to and can be required to use sick leave and vacation. For other purposes, employee must be permitted to and can be required to use vacation, but sick leave use is by mutual agreement |
Same as CFRA |
| Reinstatement | No change | Reinstatement to the same or a comparable position |
Same as CFRA |
| Relationship to Collective Bargaining Agreement | N/A | No change required during the life of existing contract | N/A |
As with the old CFRA, the new iteration requires employees who consider their CFRA rights to have been violated to file an administrative charge with the Department of Fair Employment and Housing (DFEH) before filing suit in court. Out of concern for smaller employers, a separate law requires the DFEH to establish a pilot program for employers with between five and 19 employees.
The program will give both employers and employees the opportunity to mediate a dispute when either the employer or employee receives a DFEH right-to-sue notice. If mediation is invoked, the employee cannot file a lawsuit until mediation is complete. The mediation will be provided by the DFEH's dispute resolution division.
All employers, whether for-profit or not-for-profit, should begin now to prepare to comply with the new CFRA. Employee handbooks, personnel policies, leave of absence request forms, and other leave of absence documents must be revised to conform to the new provisions. Employers with between five and 49 employees must plan for providing up to 12 weeks of leave to eligible employees—and for keeping the workplace going during their absence.
A new poster will need to be posted by January 1, 2021. It should be available in the "all-in-one" poster published for calendar year 2021 or as a stand-alone poster on the DFEH website.
FOOTNOTES
1 FMLA covers employers with 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
2 Employees eligible to take FMLA leave are those who have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin. The 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement.
3 It is unclear whether the five employees must be in California or can be elsewhere. Guidance is likely to be forthcoming.
4 Special eligibility rules apply to flight deck or cabin crew members employed by an air carrier.
5 Employee may be eligible for State Disability Insurance (SDI) if leave is for employee's own health condition, to Paid Family Leave (PFL) insurance if leave is to care for a baby or a family member with a health condition, or for military exigency. Local ordinance (e.g., San Francisco) may provide for additional payment from employer during leave for baby bonding.