Friday 18th December 2020
Almost all California employers will soon be affected by an upcoming extension to the California Family Rights Act (CFRA) under SB-1383, signed by Governor Gavin Newsom on September 17, 2020. The CFRA change goes into effect January 1, 2021, and is dramatically changing the California work vacation landscape. The CFRA was originally modeled largely on the Federal Family and Sick Leave Act (FMLA). However, there are significant differences between the two laws, and these new changes to the CFRA widen the gap in many ways.
IN THE DEEP
Among other notable changes, the new bill:
Extends CFRA coverage to employers with five or more employees (instead of 50 or more employees);
Includes additional “family members” for whom qualified employees can take leave to provide care. and
Provides vacation for active military service (previously available under the FMLA but not under the CFRA).
The following diagram summarizes the current CFRA rules compared to the new CFRA rules that will take effect on January 1st, 2021.
Switch to CFRA | detail |
Extended coverage for small employers | Currently: The CFRA currently applies to private employers with 50 or more workers within 75 miles of the job site and to public employers of all sizes. Effective January 1, 2021: The CFRA applies to private employers with five or more employees, and there is no requirement that employees work within 75 miles of the construction site. As a result, the CFRA applies to almost all California employers, including those who never had to comply with family and sick leave laws. |
Extended definition of “family member” | Currently: The CFRA currently allows qualified employees to take unpaid leave to care for a “family member” with a severe health condition. As currently defined, “family member” includes a minor child, a parent and a spouse. With effect from January 1, 2021, the definition of “family members” will be expanded to include siblings, grandparents, grandchildren, life partners and adult children (as defined in the law). Thus, employees will soon have more qualified reasons to take CFRA vacations. |
Employers who employ both parents of a child must grant full leave to each qualified parent | Currently: Employers who employ both parents of a child can limit the total amount of CFRA leave the parents take to bond with the child to a total of 12 working weeks. Effective January 1, 2021: Employers who employ both parents of a child must grant each qualified parent a separate CFRA vacation at the same time or in succession, depending on the employee’s request. The new law also specifically repeals California’s New Parent Leave Act (NPLA), as the extension of SB-1383 to CFRA makes the NPLA obsolete. |
New vacation entitlement for active military service | Currently: Under the FMLA, but not the CFRA, qualified employees in need of time off qualify in connection with covered active service (or the call to covered active service) of an employee’s spouse, domestic partner, child or parent at the United States Armed Forces may be granted sheltered leave. Valid from January 1, 2021: A CFRA vacation is available for this purpose. |
Liberation eliminated | Currently: The CFRA allows employers to exempt the highest 10% of the workforce if the employer’s refusal to grant CFRA leave is necessary to prevent significant and severe economic harm to the employer. SB-1383 removes this exemption from the CFRA. Valid from January 1, 2021: There is no longer a 10% exemption option for employers. |
Possible problems when using FMLA at the same time | Currently: In general, employers covered by both CFRA and FMLA can require workers to take both CFRA and FMLA leave at the same time, so a qualified worker is only entitled to a total of 12 weeks of unpaid leave under either statute. Effective January 1, 2021: This may no longer be the case in many situations as vacation may only be available under the CFRA. Since SB-1383 extends the CFRA definition of “family member” beyond the FMLA definition, the two laws are no longer synchronized. As a result, a Qualified Employee taking 12 weeks of vacation only available under the CFRA could take an additional 12 weeks under the FMLA for any other qualifying reason. |
Maternity leave | Currently: The amount of time required to obstruction of pregnancy qualifies for leave under the FMLA but not under the CFRA. Valid from January 1, 2021: Incapacity leave for up to four months is a separate right from the CFRA. This means that a California employee with a pregnancy disability under the FMLA could be eligible for disability leave separately under California law and then eligible for additional leave under the CFRA for another qualifying reason. |
Affected employers should take the following steps to ensure compliance in time for the CFRA effective date January 1, 2021:
California employers previously covered by the FMLA and CFRA should review and update their policies to reflect the CFRA extensions. New or revised policies should be distributed to employees before the effective date January 1, 2021.
Affected employers should update the Notice of Eligibility and Rights and Obligations, as well as the form with the title, to be used from January 1, 2021.
© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 353
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