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Sweeping Changes to California’s Family Rights Act (the CFRA) to Take Effect January 1, 2021

by Virginia K. Young , Gayle M. Athanacio and Sharon Ongerth Rossi

Employers with Five or More Employees Will Be Required to Provide Employees with Job-Protected Family and Medical Leaves of Absence; Additional Changes Will Affect Employers Who Are Already CFRA-Covered

On January 1, 2021, several big changes to California’s Family Rights Act (CFRA) will take effect as a result of SB 1383.  The CFRA—California’s family and medical leave law—requires covered employers to provide eligible employees with unpaid, job-protected leave of up to 12 weeks in a 12-month period for certain qualifying reasons.  “Eligible” employees under CFRA are those who have more than 12 months of service and at least 1,250 hours of service during the previous 12-month period.

The most notable change under SB 1383 is that the CFRA will expand its reach to cover employers of five or more employees.  Currently, the CFRA applies only to employers of 50 or more employees, consistent with its federal counterpart, the Family and Medical Leave Act (FMLA).  Starting January 1, 2021, smaller employers (those with five or more employees) will be covered by the CFRA and required to provide this job-protected family and medical leave to their California employees.

Employers who will become CFRA covered in January should act now to familiarize themselves with the detailed requirements of the CFRA so they are prepared to respond to leave requests and administer employee absences properly.

Larger employers already covered by the CFRA and FMLA should also be aware of several important changes under SB 1383.  Important changes include:

  • Expansion of qualifying reasons for CFRA’s family care leave to include more family members for whose care an employee may take CFRA leave;
  • Addition of “qualifying exigency” leave related to the military service of certain family members of the employee (already a qualifying reason for leave under FMLA);
  • Elimination of an employer’s ability to: (1) deny CFRA leave to an otherwise eligible employee when there are not 50 or more employees within 75 miles of the worksite; (2) refuse to reinstate a “key employee”; and (3) limit the amount of new child bonding leave to 12 weeks when both parents work for the same employer.

These changes create additional differences between the CFRA and FMLA and will likely require changes to leave administration practices as well as existing policies and leave forms.

If you are not already covered by CFRA/FMLA, have five or more employees and want to learn more about what becoming CFRA-covered means; or, if you are already CFRA/FMLA-covered and want to learn more about how SB 1383’s changes to CFRA will affect leave administration and policies, read on for more information.

 

Small Employers Should Act Now to Ensure They Are Prepared for New Leave Obligations Taking Effect in 2021

Employers who are not currently CFRA-covered are already required to administer employee leaves of absence, such as Pregnancy Disability Leave, leaves of absence as an accommodation for employees with disabilities, as well as “New Parent Leave” (employers of 20 or more employees).  Nonetheless, becoming a CFRA-covered employer on January 1, 2021, will impose entirely new family and medical leave of absence obligations on California employers.  Below are the basics:

“Eligible” employees (more than 12 months of service and at least 1,250 hours of service during the previous 12-month period) may take CFRA leave for a variety of reasons, including:

  • The employee’s own serious health condition (not including disability due to pregnancy, childbirth or related conditions, for which up to four months of leave is allowed, separate from CFRA, under California’s Pregnancy Disability Leave law);
  • New child bonding leave within 12 months of birth, adoption, or foster care placement. (This leave is in addition to Pregnancy Disability Leave law);
    • Employers with twenty or more employees have been required to provide this additional bonding leave under California’s New Parent Leave Act since 2018. SB 1383 will eliminate the New Parent Leave Act, as this leave will now be covered under CFRA.
  • To care for a child, parent[1], spouse, domestic partner, grandparent, grandchild, or sibling with a serious health condition;
  • Qualifying exigencies 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.

The total amount of CFRA leave an employee may take in a 12-month period is 12 weeks, even if the employee experiences multiple qualifying reasons for leave.  Group health insurance must be maintained during the 12 weeks of CFRA leave on the same terms as if the employee was working.

 

CFRA Leave Is Unpaid

Although employers are required to provide health insurance continuation during CFRA leave, CFRA leave is unpaid.  However, employees may be eligible to receive wage replacement benefits under the State of California’s State Disability Insurance (SDI), or Paid Family Leave (PFL) programs.  Also, certain employees in San Francisco who take leave to bond with a new child may be eligible to receive payments from their employer under San Francisco’s Paid Parental Leave Ordinance.

 

CFRA Leave is Job Protected.

Employees who take CFRA leave are entitled to reinstatement to the same or virtually identical position following their use of the leave.  This is true even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.  Very limited defenses to reinstatement exist, such as where the employer can prove that the employee fraudulently obtained leave or would not have been employed even if they had not taken leave.

 

CFRA Regulations Impose Additional Obligations on Employers

Newly covered employers should also familiarize themselves with the CFRA’s regulations.  In particular, employers should be aware of rules and requirements relating to providing notice of leave rights and responding to requests for leave; substitution of vacation and sick leave during leave; the effects of leave on benefits; intermittent leaves; and requiring certification of the need for leave and fitness for duty.  Covered employers should note that if the employer maintains a handbook that describes leaves of absence, it must include a CFRA policy in its handbook.  Thus, newly covered employers who maintain a handbook that describes leaves of absence will need to promptly revise their handbooks to include a CFRA policy.

 

CFRA Gives Employees Various Rights to Sue.

Employees may bring lawsuits against their employers for refusing to grant CFRA leave or reinstate the employee at the end of leave, or for retaliation.  Before filing a lawsuit, employees must first obtain a right to sue letter from the Department of Fair Employment and Housing (DFEH).  For smaller employers, another bill signed this year, SB 1867, requires the DFEH to establish a pilot mediation program for CFRA claims where the employer has between 5-19 employees.  This program will be in place until January 1, 2024.

If you have questions or concerns about how becoming a CFRA-covered employer impacts your obligations as an employer, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com.  We are here to help.

 

Existing CFRA-Covered Employers:  Make Sure You Understand How SB 1383’s Changes to CFRA Affect Your Leave Obligations. 

SB 1383 expands qualifying reasons for CFRA leave and eliminates several employer-friendly CFRA provisions relating to small worksites, “key employees,” and bonding leave when both parents work for the employer.  In addition to making CFRA leave more expansive, these changes create additional differences between CFRA and FMLA that FMLA-covered employers must consider when administering leave programs.

 

Qualifying Reasons for CFRA Leave Expanded

Currently, qualifying reasons for CFRA leave include:  (1) the employee’s own serious health condition (not including disability to due pregnancy, childbirth or related conditions, for which up to four months of leave is allowed, separate from CFRA, under California’s Pregnancy Disability Leave law[2]); (2) the need of the employee to care for a child, parent, or spouse (including a registered domestic partner) with a serious health condition; or (3) to bond with a new child within 12 months of birth, adoption, or foster care placement.

SB 1383 broadens the scope of permissible CFRA uses by expanding the list of family members for whose medical care an employee may take leave and adding a new category of qualifying leave when an employee’s family member is for active duty military service.

Expanded list of family members

Starting January 1, 2021, CFRA will add grandparents, grandchildren, and siblings to the list of family members for whose care an employee may take CFRA leave.  This means that, under CFRA, leave may be taken to care for a child, parent, spouse, domestic partner, grandparent, grandchild, or sibling with a serious health condition.  Additionally, the definition of a “child” under CFRA will be amended to eliminate the requirement that the child be under 18 or an adult dependent of the employee.

FMLA-covered employers should take note that under FMLA, leave to care for a “family member” includes only a child (under 18 or a dependent), a parent, or a spouse (but not a domestic partner).  These SB 1383 changes to CFRA create new possibilities for “leave stacking” situations where an employee’s leave qualifies under CFRA, but not FMLA.  In such cases, the employee does not exhaust his or her FMLA entitlement during CFRA leave and still has their full FMLA entitlement to use in the same leave year should a FMLA-qualifying reason occur.  An example under CFRA in its current form is leave to care for a registered domestic partner, which qualifies as CFRA leave, but not FMLA leave.  Under SB 1383’s changes, leave to care for a sibling, grandparent or grandchild could also raise leave stacking situations, as could the leave to care for a child who meets the definition of a child under CFRA but not FMLA.

“Qualifying Exigency” Military Leave Now Required under the CFRA

Under SB 1383, CFRA leave, like FMLA, will now include 12 weeks of “qualifying exigency” military leave, i.e., leave 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.  Qualifying exigencies” generally include: short notice deployment; military events and related activities; childcare and school activity arrangements; financial and legal arrangements; counseling; to spend time with a covered military member on short-term leave for rest and recuperation; to attend post-deployment activities, and other activities upon which the employer and the employee can agree is an appropriate exigency, and can agree as to the timing and duration of such leave.  Employees taking qualifying exigency CFRA leave may be eligible for Paid Family benefits from the State of California (AB 2399).

 

New Limitations on Employer’s Ability to Deny Leave or Reinstatement

SB 1383 eliminates from the CFRA an employer’s ability to deny leave to employees at “small worksites” as well as an employer’s right to refuse to reinstate “key employees.”  SB 1383 also eliminates the combined leave maximum for new child bonding leave when both parents work for the same employer.  All of these employer rights, however, remain part of FMLA.

 

Employers Must Grant CFRA Leave to Employees at Small Worksites

Currently, the CFRA allows employers to deny CFRA leave to otherwise eligible employees where there are fewer than 50 employees within a 75 mile radius of the employee’s worksite.[3]  SB 1383 eliminates this provision: Beginning January 1, 2021, there will be no requirement under CFRA that a minimum number of employees work at or near the employee’s worksite.  This means that an employee who is not eligible for FMLA because there are not 50 employees within 75 miles of the worksite may now be able to take family and medical leave under CFRA.

 

No More “Key Employee” Defense Under the CFRA

Following the conclusion of CFRA leave, an employee is entitled to be returned to the same or virtually identical position, even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.  One of the very few allowable bases for denial of reinstatement under CFRA and FMLA was for “key employees” (within the highest-paid 10% of employees within 75 miles) who can be denied reinstatement if proper notice is given at the time of the leave request, and reinstatement would cause employer substantial economic injury.  Beginning January 1, 2021, CFRA will no longer have a key employee provision.

 

No More Limitation on CFRA Bonding Leave When Both Parents Work For the Same Employer

Under current CFRA rules and under FMLA, if both parents are employed by the same employer, the employer may limit leave for the birth, adoption, or foster care placement to a combined total of 12 workweeks in a 12-month period between the two parents.  Beginning January 1, 2021, CFRA will no longer allow employers to impose this limitation, which means that each employee will be entitled to a full 12 weeks of CFRA bonding leave.

Employers should review and update current policies, leave forms, and leave administration practices to take into account SB 1383’s changes to CFRA  If you have questions or concerns about your FMLA/CFRA obligations as an employer, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com.  We are here to help.

 


[1] “Parent” means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in

loco parentis to the employee when the employee was a child.

[2] Pregnancy disability, childbirth and related medical conditions are considered a “serious health conditions” under FMLA.

[3] Under FMLA, an employee is not eligible for leave if there are not 50 employees within 75 miles of the worksite.

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