As the clock strikes midnight on New Year’s Eve 2020, sweeping amendments to California’s Family Rights Act (CFRA) will take effect. Both the federal Family and Medical Leave Act (FMLA) and the current version of CFRA entitle eligible employees to take up to 12 weeks of unpaid, job-protected family or medical leave during a 12-month period. This statutory leave right provides employees with time off from work for the birth, adoption or foster care placement of a child, to care for an immediate family member (spouse, child or parent) with a serious health condition, or when the employee cannot work because of a serious health condition.
Effective January 1, 2021, however, not only will the CFRA apply to more employers (covering employers with as few as five instead of the current 50 employees), but CFRA’s expanded definition of “family members” also will authorize certain employees to take a total of 24 weeks of family and medical leave, effectively doubling the currently available 12 weeks of leave available, in each 12-month period.
We highlight the key changes to the CFRA and employer considerations below.
Summary of key changes
As of January 1, 2021, the CFRA will:
- Apply to significantly more employers. Currently, an “employer” is covered by CFRA if the employer directly employs 50 or more persons. As of January 1, 2021, any “employer” that directly employs five or more persons will be subject to CFRA.
- Provide leave rights to more employees by eliminating the requirement that an employee work at a worksite that employs 50 or more employees within 75 miles of the worksite to qualify for CFRA leave. As of January 1, 2021, employees will qualify for CFRA leave if they have worked 1250 hours and 12 months, even if they work at a worksite with a few employees, or just one employee.
- Expand CFRA leave protection to a qualified exigency related to the covered active duty or call to covered active duty of a spouse, domestic partner, child or parent.
- Expand the types of family member “serious health condition” leave for which CFRA leave may be taken to also include grandparents, grandchildren, siblings, and domestic partners with serious health conditions.
- Revise the definition of, or define for the first time, the terms “child,” “domestic partner,” “grandchild,” “grandparent,” and “parent-in-law.” The definition of “child” now includes the child of a domestic partner or a person to whom the employee stands in loco parentis, and “child” is no longer limited to people under the age of 18 or who are adult dependents. This means as of January 1, 2021, employees can take leave to care for any age child.
- Eliminate the requirement that dual-employed parents share CFRA baby-bonding leave. Under the amended CFRA, each parent is entitled to the full 12 weeks of baby bonding, even if both parents work for the same employer.
- Eliminate the “key employee” exception to reinstatement following a CFRA leave.
Amended CFRA’s broader “family member” definition may entitle employees to more leave
A key impact of the revised CFRA statute will be the differences between CFRA-authorized and FMLA-authorized leave after the New Year. Under the amended CFRA, the definition of “family member”-including grandparents, grandchildren, siblings, domestic partners, and children with serious health conditions-is broader than the definition of family member in the FMLA (which allows leave to care only for the employee’s spouse, son, daughter, or parent). The expanded CFRA definition of “family member” should result in employees being eligible for 24 weeks of leave in a 12-month period because using CFRA leave for a family member not covered by the FMLA will not exhaust the employees’ FMLA entitlement, unlike before when leave under both the FMLA and the CFRA ran concurrently for most leave purposes.
- For instance, if an employee covered by both FMLA and the amended CFRA takes 12 weeks of leave to care for the employee’s child with a serious health condition, an employer can treat the leave as covered under both laws and require the employee to exhaust the leave under both laws concurrently. The employee will only be entitled to a total of 12 weeks of CFRA/FMLA leave in that 12-month period.
- However, if an employee covered by both the amended CFRA and the FMLA takes 12 weeks of leave to care for the employee’s grandparent with a serious health condition under the CFRA, that employee can also take a separate 12 weeks of leave to care for a spouse, child or parent with a serious health condition under the FMLA-meaning the employee may take 24 total weeks of qualifying leave in a 12-month period.
Changes to leave to bond with a child
The amended CFRA also impacts leave to bond with a child. Under the FMLA and the current CFRA, spouses employed by the same covered employer can be required to share a combined 12 weeks of leave to bond with their new child. However, under the amended CFRA, each parent is entitled to the full 12 weeks of baby bonding, even if both parents work for the same employer. Therefore, if one of two dual-employed parents takes 12 weeks of FMLA leave for baby-bonding, the other dual-employed parent may also take 12 weeks of baby-bonding leave under CFRA, giving the dual-employed parents a combined total of 24 weeks of baby-bonding leave (as opposed to the 12 weeks total under the FMLA and current CFRA).
Are you covered under the amended CFRA, FMLA, or both?
Smaller employers should remember that even if the amended CFRA applies, they still may not be covered employers under the FMLA or have employees entitled to FMLA leave. The amended CFRA changes the definition of employer from that of one which directly employs 50 or more persons to one which directly employs five or more persons.
Employers also should prepare for the CFRA amendments by revising their policies to eliminate the “50 or more employees within 75 miles of the worksite” eligibility criteria for CFRA, but not for FMLA. Employers subject to the amended CFRA but not the FMLA need not worry over the interplay between the two statutes, but still should consider any local laws that may apply to employee family and medical leave requests. For assistance navigating the complicated maze of leave laws and employee leave requests, contact your Baker McKenzie employment attorney.