What you need to know about cfra expansion

Starting in 2021, small employers (with five or more employees) need to begin providing leave under the California Family Rights Act (CFRA). CFRA was originally passed into law in 1993 and affected companies with more than 50 employees. Beginning on January 1st, 2021, CFRA will apply to companies that have five or more employees, with at least one employee in California.

On September 17th of 2020, California’s Governor Newsom signed SB1383, also known as “Unlawful employer practice: California Family Rights Act”, which expands leave protections available to employees under CFRA.

Employers need to update employee handbooks effective January 1, 2021. Small employers need to add a CFRA section and larger employers need to update the CFRA section of the handbook to comply with the new law.

Employers who were previously exempt from CFRA need to develop the required leave administration procedures and documents. Documents are California specific and cannot be copies from previous FMLA forms or from the U.S. Department of Labor website. The Department of Fair Employment and Housing will have updated forms by January 2021 that employers can use.

The highlights of SB1383 include:

• Employers with five or more employees (full and part time employees) must provide up to 12 weeks of unpaid job-protected family leave annually.
• Qualifying reasons for a leave include an employee’s own serious health condition, caring for a family member with a serious health condition, bonding with a newborn, adopted child, or foster child. Also, for a qualifying exigency dealing with covered active duty, or call to covered active duty, of the employee’s spouse, domestic partner, child, or parent in the Armed Forces. The last reason is NEW to the CFRA requirements.
• Employees must be employed for at least 12 months and have worked a minimum 1,250 hours during the last 12 months to qualify for CFRA.
• There is no requirement the five employees be within a 75-mile radius (unlike the FMLA requirements). Businesses with as few as five employees company-wide (counting employees in and out of California), must comply with the new law for all California employees.
• CFRA will run concurrently with FMLA if the leave is covered under FMLA. Employees can take 12 weeks of job-protected CFRA leave for personal medical conditions (unless leave is taken for pregnancy, childbirth, or medical conditions covered under Pregnancy Disability Leave).
• Family members previously covered by CFRA leave included the employee’s parent, child, spouse, or domestic partner. Under SB1383, employees may now also take leave to care for an adult child,  grandparent, grandchild, or sibling. FMLA does not provide job-protected leave to care for a grandparent, grandchild, or sibling. This means an employee who takes 12 weeks of leave to care for family members under CFRA is still eligible for 12 additional weeks of job-protected leave for other qualifying reasons if eligible for FMLA. This situation would only apply to larger employers that are covered by both CFRA and FMLA.
• When an employer employs both parents of a new child, SB1383 requires the employer provide both parents 12 weeks of job-protected leave for bonding (even when employees take leave at the same time). This is different than FMLA, which allowed employers to split the 12 weeks between the two employees.
• SB1383 eliminates the “key employee” exception, which allowed employers to not reinstate a salaried employee in the top ten percent of the company.

Employers who were previously covered under CFRA and FMLA will also need to be aware of the new requirements. SB1383 increases the type of family members an employee can take leave to care for, changes the leave available to parents for baby bonding (when they work for the same employer), and removes the “key employee” provision.

Employers also need to understand the interplay between Pregnancy Disability Leave (PDL) and CFRA. These two leaves do not run concurrently. A pregnant employee is entitled to up to 17 1/3 weeks of Pregnancy Disability Leave and an additional 12 weeks of leave under CFRA leave. This means your employee could be off work more than seven months and you are legally required to hold their position.

Leave of absence under CFRA does not require the employer to pay the employee during this time off. Companies should allow the use of any company paid time off programs. However, depending on the reason for leave, many employees will also be eligible for California’s partial income replacement program called Paid Family Leave (PFL). PFL provides up to eight weeks off for eligible absences and typically provides between 60-70 percent income replacement.

This is a substantial change that impacts nearly all California employers.
 
There are strategies for reducing the burden of CFRA leave requests: cross training employees, partnering with temporary or contract services to fill absences, encouraging open communications with employees (so you get advance notice and can plan). Leave of absence administration can be challenging. In preparation for this change in 2021, employers should become familiar with the regulations, update the employee handbook and workplace posters, and develop a process for evaluating, responding to, and documenting leave requests. Employers need to make sure requests for CFRA leave does not factor into employment decisions (such as disciplinary action, pay increases, or promotional opportunities).

One best practice is to provide employees a written leave of absence letter which outlines the request for time off, whether it is approved, the duration, income replacement options, benefits coverage, payment during their absence, their responsibilities, and who to contact if they have questions. If you are not sure of how to handle a leave of absence request, get professional help from a qualified Employment Attorney or HR Consultant.

Many technical aspects of CFRA leave are outside the scope of this summary. If you need help navigating the new CFRA or with other Human Resource issues, reach out to North County HR at [email protected] or 760-390-7357. We specialize in HR, small businesses, and California compliance and look forward to working with you.
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This article provides information only and should not be construed as legal advice.

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