The Labor & Employment Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

California Drastically Alters Obligations under the California Family Rights Act

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

On Thursday, Governor Newsom signed Senate Bill 1383, dramatically expanding the California Family Rights Act (“CFRA”), and the obligations it places on employers to provide leave to eligible employees. As a reminder, the CFRA is California’s leave statute, which authorizes eligible employees to take up a total of 12 weeks of unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working.

Historically, the CFRA has applied to employers employing at least 50 employees. SB 1383 expands the CFRA to employers throughout the state who employ 5 or more employees.  In addition, SB 1383 expands the definition of a “family member” to include adult children, siblings, grandparents, grandchildren and domestic partners. The changes go into effect on January 1, 2021.

Expansion to Smaller Employers 

Under SB 1383, the CFRA will now apply to much smaller employers, and specifically, all employers with 5 or more employees. Traditionally, in determining whether the employer was a covered employer under the CFRA, it had to employ 50 or more employees within a 75-mile radius. SB 1383 eliminates that provision. This means that, as of January 1, 2021, for an employee to be eligible for leave, he/she will only need to meet the following requirements:

  • Worked for the employer for at least 12 months of service (can be nonconsecutive work for employer over a 7-year period, except that any military leave time while employed counts towards this 12 months of service); and
  • Worked at least 1,250 hours in the 12-month period prior to taking CFRA leave.

Expanded Definition of “Family Members”

The CFRA currently allows employees to take unpaid leave for a number of purposes, including to care for a “family member” with a serious health condition. CFRA currently defines “family member” to include a minor child (unless the child is an adult and a dependent child), a spouse, or a parent.

SB 1383, however, significantly expands the definition of what constitutes a “family member.” Under the revised language, a “family member” also includes siblings, grandparents, grandchildren, and domestic partners. The definition of “child” is further expanded to cover all adult children, as well as children of a domestic partner.

Additional Changes to the CFRA Employers Should be Aware of

There are several additional components of SB 1383 that California employers should be aware of:

  • SB 1383 removes the provision of the CFRA that permitted employers to refuse to provide the full 12 weeks of “parental” leave associated with the birth, adoption or foster care placement of a child, when both parents worked for the same employer. Going forward, an employer will likely be required to provide eligible employees with 12 weeks of parental leave, even where both parents work for the same employer.
  • SB 1383 also requires employers to provide leave due to a qualifying exigency related to active duty or a call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
  • SB 1383 removes the “key employee” provision, which allowed an employer to refuse reinstatement to salaried employees who were among the highest 10% of the employees, if the refusal was necessary to prevent economic injury.
  • SB 1383 repeals the New Parent Leave Act, which was implemented in 2018 to provide parental leave to employers with 20-49 employees. Given the expanded coverage of the CFRA, the New Parent Leave Act was deemed unnecessary.

Next Steps for Employers

SB 1383 goes into effect on January 1, 2021. That leaves California employers a bit more than three months to prepare. Employers (both small and large) should review their policies to ensure compliance with the revised CFRA, and for most employers that likely means issuing new policies and/or handbooks that comply with the new provisions. Employers should also train their supervisors and HR personnel to ensure they are properly prepared to administer the new leave requirements.

Do not hesitate to contact your Weintraub Tobin employment attorney with any questions you have interpreting SB 1383 and/or determining how it applies to you.