On September 17, 2020, Governor Newsom signed into law SB 1383 which makes significant changes to California’s Family Rights Act (CFRA).
Under the current law – which will apply though the end of the year – the CFRA applies only to businesses with 50 or more employees and gives those employees 12 weeks of leave to take care of a family member. The new law, which takes effect January 1, 2021, expands CFRA leave to apply to any business with five or more employees. This 12-week leave is in addition to other leaves mandated under California law such as Pregnancy Disability Leave, Workers Comp injury, and California Paid Leave.
Any leave taken by employees under the CFRA must be tracked by the employer to ensure compliance, and the leave may be taken in increments rather than all or nothing. Thus, an employee could take a leave that lasts for a month, one week, a couple days, or even just a few hours. As with the current law, employees who take leave under the amended CFRA are “protected” such that upon the employee’s return to work, he or she must be given his or her old job back or “a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.”
While the new CFRA expands the number of employers which are now required to provide such leave, employers with 50 or more employees also need to review the law as it makes changes that affect them as well.
The old CFRA, like FMLA leave, applied only to dependent children or children under the age of 18, as well as a parent or spouse. Because CFRA leave tracked FMLA leave, and as the two leaves ran concurrently, employees taking family leave were, in effect, limited to a total of 12 weeks. The new CFRA however significantly expands persons who are covered. The 18 or under “cap” for children has been eliminated, meaning an employee may take leave to care for a child regardless of age or dependency. The definition of “child” now also includes the child of a domestic partner.
In addition, an employee may take leave not just to care for a parent or spouse, but also to care for a grandparent, grandchild, sibling, or domestic partner. Notably, leave taken to care for an individual who falls into one of these new categories is not covered by FLMA. An employee could therefore take 12 weeks of FMLA leave to care for a child or spouse, and then take a further 12 weeks of leave under the CFRA to care for a sick grandparent or sibling. Because both leaves are protected, the employee would be entitled to his or her job back upon return after potentially having been away for six months. And, while that leave is still unpaid, the employer must continue to provide benefits such as health insurance to the employee during this time.
Finally, the new law also allows for leave because of a “qualifying exigency” related to active duty, or the call to active duty, of an employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.
Simply put, this new law makes wide ranging changes to family leave in California that will have an effect on employers throughout the state, big and small.
It is imperative that employers contact counsel promptly to learn about these changes, make sure the changes are implemented within their businesses, and take the necessary steps to revise employee handbooks and other written materials that lay out the employer’s family leave policies.