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Protected Leave For New Parents Now Applies to Mid-Size Employers in California

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) have long required large employers with 50 or more employees to provide unpaid job-protected parental leave for employees to bond with a new child. Effective January 1, 2018, the New Parent Leave Act (NPLA) extends similar parental leave requirements to California employers with 20 or more employees within a 75-mile radius.

The NPLA adds section 12945.6 to the Government Code, requiring these mid-size employers to provide up to 12 workweeks of unpaid job-protected leave for employees to bond with a new child within one year of the child’s birth, adoption, or foster care placement.  As with the FMLA and CFRA, employees must have worked for the company at least 12 months, and at least 1,250 hours during the preceding 12 months, to qualify for NPLA leave.

Employees may take the leave intermittently or all at once. Employees taking NPLA leave are entitled to additional leave under California’s Pregnancy Disability Leave Act (PDL), if they otherwise qualify for PDL leave. If both parents are company employees, the employer is not required to grant simultaneous leave to both parent-employees and total leave for both parents can be limited to the amount a single parent could take—12 weeks.

While NPLA leave is unpaid, the NPLA permits employees to utilize accrued PTO, vacation or related paid or unpaid time off negotiated with the employer, during their parental leave. Employers must maintain and pay for employees’ health plan coverage throughout their NPLA leave, at the level and under the conditions that coverage would have been provided if the employee had continued to work in his or her position for the duration of the leave. However, employers can recover the cost of premiums they paid during the NPLA leave if the employee fails to return after the leave for a reason unrelated to the employee’s serious health condition or other circumstances beyond the control of the employee.

The employer is deemed to have refused to provide leave under the NPLA if, on or before the commencement of the parental leave, the employer does not guarantee full reinstatement in the same or comparable position. The NPLA specifically prohibits employers from retaliating or discriminating against individuals for exercising their rights to NPLA leave or for giving information or testifying about their rights, or another individual’s rights, to NPLA leave in an investigation or legal proceeding.

To help avert the negative civil litigation impact a new law like this would likely have on small businesses, the NPLA includes a two-year pilot mediation program. Under the pilot program, employers may request a mediation with the Department of Fair Employment and Housing within 60 days of receipt of a right-to-sue notice. The benefits of this pilot program are reduced by the fact that participation in the mediation is voluntary and either side can withdraw if they believe the mediation would be fruitless.  The mediation pilot program will cease altogether on January 1, 2020.

While this new law looks a lot like the FMLA and CFRA, it applies to thousands of California businesses that up until now have been largely free from, and unfamiliar with, parental leave regulation. Affected California employers should therefore carefully review their employment policies and materials to ensure compliance with this new law and consult experienced employment attorneys if necessary.