Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Effective January 1, 2021, SB 1383 expands the California Family Rights Act (CFRA) to cover smaller employers and provide access to leave for additional covered reasons.
The CFRA, like the federal Family and Medical Leave Act (FMLA), currently covers employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Employees are eligible for CFRA leave if they have at least 12 months of service, worked at least 1,250 hours during the 12-month period prior to the commencement of the leave, and work at a worksite with at least 50 employees employed within 75 miles. Eligible employees may take up to 12 workweeks of leave in a 12-month period for the birth or placement of a child for adoption or foster care; the employee’s own serious health condition; or the serious health condition of the employee’s child, parent, spouse, registered domestic partner, or registered domestic partner’s child. If both parents are employed by the same employer and seek to take leave to bond with a new child, the employer may limit the parents to a combined total of 12 workweeks of leave. Unlike the FMLA, CFRA leave is not available for military exigencies, and pregnancy, childbirth, and related medical conditions are excluded from the definition of a serious health condition.
The California Fair Employment and Housing Act (FEHA), which applies to employers of five or more employees, separately provides employees disabled by pregnancy, childbirth, or a related medical condition with up to four months of pregnancy disability leave. The CFRA allows employers to deny reinstatement to a “key employee,” a salaried employee among the highest-paid 10 percent of the employer’s employees working within 75 miles of the employee’s worksite.
Currently, the New Parent Leave Act (NPLA) allows employees of smaller employers to take up to 12 workweeks of leave to bond with a new child if they have more than 12 months of service, worked at least 1,250 hours during the 12-month period prior to the commencement of the leave, work at a worksite with at least 20 employees employed within 75 miles, and are not covered under the CFRA and the FMLA.
Smaller Employers Now Covered
SB 1383 expands the definition of employers covered under the CFRA to any person who directly employs five or more persons to perform services for a wage or salary. This change aligns the CFRA’s employer threshold with the employer threshold governing pregnancy disability leave under FEHA and eliminates the need for the NPLA, which is repealed effective January 1, 2021.
Additional Covered Family Members and Uses
SB 1383 adds to the list of family members for which employees may take CFRA leave grandparents, grandchildren, and siblings. The law also expands the definition of “child” to eliminate the requirement that the child be either under 18 years of age or an adult dependent.
SB 1383 also adds a new covered use, allowing eligible employees to take CFRA 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.
These changes more closely align1 the CFRA with California’s Family Temporary Disability Insurance (FTDI) program, which provides up to eight weeks of paid family leave benefits to care for a seriously ill parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, or parent-in-law (including the parent of a registered domestic partner); to bond with a minor child within the first year of the child’s birth or placement for adoption or foster care; and, effective January 1, 2021, participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
SB 1383 eliminates the CFRA’s limitation on the amount of leave parents may take to bond with a new child when both parents are employed by the same employer and an employer’s ability to deny reinstatement to key employees.
Additional Scenarios When State and Federal Leave May not Run Concurrently
In addition to expanding the employers and uses to which CFRA will apply, SB 1383 creates additional occasions when a leave of absence under the CFRA may not run concurrently with leave under the FMLA such that an employee may “stack” the two leaves together and receive more than 12 workweeks of leave. For example, leave for pregnancy-related conditions will not run concurrently under the FMLA and the CFRA because pregnancy-related conditions are not covered under the CFRA. As a result, an eligible employee taking leave for a serious health condition related to pregnancy may receive up to 12 workweeks of FMLA leave without utilizing any of their CFRA entitlement. This potential for leave-stacking also exists when an employee takes CFRA leave to care for a domestic partner, which is not covered under the FMLA. Remember, however, that in order to be eligible for federal FMLA leave, an employee still must work at a business that employs 50 or more employees.
Under SB 1383, employees may also be able to stack federal and state leave benefits when an employee takes CFRA leave to care for a grandparent, grandchild, or sibling, as these family members are not covered under the FMLA.
Next Steps for Employers
Employers have only three months to prepare for these changes, and the impact on small businesses likely will be significant. In light of the passage of SB 1383, employers with at least five employees should take steps to prepare for implementation of the expanded CFRA.
California law does not require that each employer publish an employee handbook. However, regulations under the CFRA provide that if a covered employer does publish an employee handbook that describes other kinds of personal or disability leaves available to employees, it must include a description of CFRA leave in its handbook. Employers that do not yet address CFRA in their handbooks should incorporate a CFRA policy as part of their 2021 handbook update, and employers with an existing CFRA policy should revise the policy to incorporate the amendments.
Employers should also update their leave administration procedures and leave forms and consider training human resources and managerial staff on the revised CFRA’s requirements. Small businesses in particular, faced for the first time with tracking and monitoring protected leaves, should not underestimate the time and effort that will be required to comply with these new obligations.
1 Curiously, SB 1383 includes a definition of “parent-in-law” but does not identify parents-in-law as among the category of covered family members for which employees may take CFRA leave. The FTDI program defines “parent” to include a parent-in-law, defined as a parent of a spouse or domestic partner. Cal. Unemployment Insurance Code § 3302(i), (j). As a result, while employees may receive FTDI benefit while on leave to care for a parent-in-law, they are not entitled to a leave of absence under the CFRA to care for a parent-in-law.