California Expands Scope of Family and Medical Leave Coverage

September 28, 2020

Effective Jan. 1, 2021, California employers with five or more employees will be required to provide family and medical leave to their employees under a newly enacted version of the California Family Rights Act (CFRA). The new version of the CFRA will expand the definition of “family members” for whom a covered employee can seek leave, will eliminate certain use restrictions, and will entitle some employees to up to 24 weeks of unpaid protected leave in a 12-month period. These significant changes and others are the result of Senate Bill (SB) 1383, signed into law by California Gov. Gavin Newsom on Sept. 17, 2020.

CFRA Covers Employees Who Work for an Employer of Five or More Employees

Currently, an individual who works for an employer with 50 or more employees is entitled to 12 workweeks of unpaid protected CFRA leave in a 12-month period to care for his or her serious health condition, or the serious health condition of the employee’s minor child, parent or spouse. The new version of the CFRA dramatically reduces the threshold number of employees triggering CFRA coverage to just five employees. SB 1383 will serve to repeal California’s New Parent Leave Act (NPLA) effective Dec. 31, 2020, since the NPLA will no longer be needed given the extensive new coverage under the CFRA, as further described below. (NPLA allows individuals who work for employers with 20 or more employees to take 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child.)

The new CFRA provisions likewise eliminate CFRA’s current exception to coverage for employers with fewer than 50 employees within 75 miles of the employee’s worksite. However, the other current leave qualifications — that an employee must have at least 12 months of service with the employer and must have worked at least 1,250 hours in the 12-month period before taking a leave — remain in place. The new CFRA, like the current one, still requires that employers guarantee employees reinstatement to the same or a comparable position upon return from CFRA leave. However, the new CFRA eliminates the “key employee” exception, which permitted an employer to deny CFRA leave to employees who are among the highest-paid 10 percent of their workforce, if “necessary to prevent substantial and grievous economic injury” to the employer’s operations.

Expanded Definition of “Family Member”; Leave for Family Members Called to Military Duty

Under existing law, employees are entitled to CFRA leave to bond with a new child and to care for the employee’s own serious health condition or that of a “family member.” Presently, family members include minor children, adult dependent children, spouses and parents. Under the new version of the CFRA, however, family members also will include siblings, grandparents, grandchildren and domestic partners. In addition, family members will include all adult children, regardless of whether they are dependents of the employee, and the children of domestic partners.

Placing it more in line with the federal Family Medical Leave Act (FMLA), the new CFRA will permit employees to take up to 12 workweeks of unpaid protected leave during a 12-month period for 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 U.S. armed forces. (The FMLA does not include domestic partners within the definition of “qualifying exigency” family medical leave.)

Parents With Same Employer May Take “Baby Bonding” Leave; 24 Weeks’ Leave for Other Needs

SB 1383 also eliminates the current CFRA mandate that if both parents are employed by the same employer, they may take only a combined total of 12 weeks to bond with a newborn child, adopted child or foster care placement. Once the new CFRA statute takes effect, if both parents are employed by the same employer, they each will be entitled to take 12 weeks (or 24 weeks total) of unpaid protected “baby-bonding” leave.

Likewise, given the significant changes SB 1383 makes to the CFRA definition of “family members,” as well as the inclusion of domestic partners within the definition of “qualifying exigency” leave for military service, there will now be the potential for certain employees covered by both the FMLA and the CFRA to receive up to 24 weeks of unpaid protected leave in a 12-month period. Currently, leave under the FMLA and leave under the CFRA run concurrently. However, under the new law, when an employee covered by the FMLA also needs to take leave within the same 12-month period for a reason covered by CFRA but not by FMLA — such as to care for a sibling, grandparent, grandchild or domestic partner, or because a domestic partner is called to military service — the employee will be permitted to take up to 24 weeks of unpaid protected leave (12 weeks under the FMLA and 12 weeks under the CFRA).

Next Steps in CFRA Compliance for Small and Large Employers

Employers with five to 49 employees and currently not covered by the CFRA need to adopt new policies and procedures to comply with SB 1383. Likewise, supervisors and human resources personnel need to be trained to properly implement the requirements of the new CFRA. Employers with 50 or more employees need to revise existing policies to address the changes on the first of the year and ensure that all appropriate employees are trained on the new requirements. In addition, both small and large employers need to examine or re-examine how they will track leave under FMLA and CFRA now that they will not always run concurrently.

If you have any questions regarding SB 1383 or how it might impact your business, please contact any member of the McGuireWoods California labor and employment law team.