Expanding the California Family Rights Act Effective January 2021

September 30, 2020 by Kim Spilker

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As 2020 winds down, employers large and small will have to grapple with some significant changes to the state’s California Family Rights Act (CFRA). The September 17th signing of SB 1383 is a massive shift for California employers, since the CFRA has historically provided job protected leave for employers with 50 or more employees.

Effective January 1, 2021, California employers with five (5) or more employees will be required to extend up to 12 workweeks of family care and medical leave to eligible employees under an expanded CFRA. This leave also replaces California’s New Parent Leave Act, which previously extended up to 12 weeks of baby bonding leave for employers with 20-49 employees.

In the new year, an employee who has worked for a covered employer for at least 12 months and has worked at least 1,250 hours in the 12 months preceding the leave qualifies for a job protected leave under CFRA for the following reasons:

 

(A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee

 

(B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition

 

(C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions

 

(D) Leave because of 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, as specified in Section 3302.2 of the Unemployment Insurance Code

Smaller employers should be aware that Pregnancy Disability Leave (PDL) runs consecutive to CFRA, which means an employer must still provide up to 12 additional workweeks of leave following the exhaustion of PDL. Employers with 50 or more employees who are covered under the federal Family Medical Rights Act (FMLA) should also pay close attention to leaves to provide care for family members. Because the FMLA has a narrower definition of “family member,” any leave that qualifies under CFRA may not trigger FMLA, creating the potential for an employee to take up to 24 weeks of leave in a 12-month period.

The following are notable changes in the new law:

  • The previous requirement that employees work within 75 miles of the worksite is eliminated.
  • The definition of “family members” currently includes a minor child (unless the child is an adult and dependent child), a spouse, or a parent and expands to include siblings, grandparents, grandchildren, domestic partners, and all children of a domestic partner.
  • The law as modified eliminates a combined 12 weeks for two employees working for the same employer to allow each individual 12 weeks each for leave when leave is for the birth, adoption, or foster care placement of a child.
  • Employers may no longer refuse reinstatement to top 10% wage earners formerly called “key employees.”

To prepare for this new leave requirement, employers should update their employee handbooks and ensure required labor postings are updated to reflect the change. In addition, employers should ensure policies and procedures are in place for accurate tracking of leave and responding to requests for leave. Employers may also wish to consider hiring more employees to fill in for absences and cross-train existing staff.

The text of SB-1383 can be viewed here.

NIA Employment Risk Manager Ellen Aldridge will present a webinar on these expansions of the California Family Rights Act on December 8, 2020. The webinar is free for NIA members and $45 for the general public. Register for the webinar.

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Tags: Risk Management, Member Resources

Kim Spilker

About the Author

Kim Spilker is an Employment Risk Manager for the Nonprofits Insurance Alliance, where she counsels nonprofits on the management of employment risks by helping them understand employment law mandates and best practices to motivate and manage employees. Before that, Kim worked as in-house counsel in the Long Term Care industry where she focused on labor and employment matters, health care compliance and workers’ compensation. When she isn’t hard at work, Kim enjoys spending time at the beach and is always looking to learn something new. Kim holds a B.A. in International Relations from the University of Wisconsin – Madison and a J.D. from Thomas Jefferson School of Law and is a member of the Connecticut Bar and Wisconsin Bar. She currently resides in the San Diego area with her three children.