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DFEH Issues New Publications and Forms In Connection with the Expansion of the CFRA

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

On January 8, 2021 the California Department of Fair Employment and Housing (“DFEH”) issued new Posters, Fact Sheets, FAQs, and Certification forms in connection with the expansion of the California Family Rights Act (“CFRA”) and its interplay with the Pregnancy Disability Leave law (“PDL”).

As the DFEH’s Fact Sheet specific to 2021 explains, recent legislation (Senate Bill 1383) expanded CFRA in several major respects.  Below is a summary of the major changes:

  1. Employers of 5 or more employees covered by CFRA: Until December 31, 2020, CFRA applied only to private employers of 50 or more employees. Starting January 1, 2021, CFRA applies to private employers of 5 or more employees. CFRA also applies to the California state and local governments as employers.
  2. Worksite limitation eliminated: To be eligible for CFRA leave, an employee generally has to meet 3 requirements: have worked for the employer for more than 12 months, have worked at least 1,250 hours in the 12 months prior to their leave, and the employer has at least 50 employees within 75 miles of the employee’s worksite. Starting January 1, 2021, the worksite mileage requirement is eliminated.
  3. Circumstances for CFRA leave expanded: Eligible employees can take up to 12 weeks of CFRA leave to: care for their own serious health condition; care for certain family members’ serious health condition; or to bond with a new child (by birth, adoption, or foster placement). SB 1383 did not change these three categories, but it did expand the types of family members for whom CFRA leave can be taken (see #4 below). In addition, beginning January 1, 2021, CFRA leave may be taken for “a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.”
  4. Types of family members expanded: Currently, CFRA leave may be taken to care for the serious health condition of a spouse, domestic partner, parent, minor child, or dependent adult child. Starting on January 1, 2021, employees may take leave to care for additional family members, including: an adult child, a child of a domestic partner, grandparent, grandchild, or sibling.
  5. Limitation on parents working for the same employer eliminated: Starting January 1, 2021, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave. Until December 31, 2020, employers were allowed to require parents to split 12 weeks of leave between them.
  6. Small employer mediation program created: CFRA applies the same to covered employers regardless of size. However, DFEH offers mediation to smaller employers (5-19 employees) and their employees to resolve any dispute over CFRA leave, before the employee can proceed with a court case. For more information about this program, see Government Code section 12945.21. Employers and employees wishing to take advantage of DFEH’s mediation services should contact DFEH at DRDOnlinerequests@dfeh.ca.gov or any of the channels below.
  7. Exceptions eliminated: Starting January 1, 2021, all employees who take CFRA leave have the same reinstatement rights. An exception for an employer’s highest-paid employees is eliminated.

The DFEH’s Fact Sheet on PDL also clearly explains that (unlike the FMLA), CFRA leave is not for pregnancy-related conditions, which are covered by PDL. And thus, eligible employees are entitled to take CFRA leave in addition to any leave entitlement related to pregnancy.

Finally, the DFEH also has prepared two Quick Reference Guides – one comparing entitlements under PDL, CFRA and/or FMLA for a pregnant employee, and one comparing rights and obligations under CFRA and FMLA for other qualifying reasons.

You can obtain more information and copies of the updated documents at the DFEH’s website: https://www.dfeh.ca.gov/family-medical-pregnancy-leave/

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The attorneys in Weintraub Tobin’s Labor & Employment Group have years of experience advising employers about various employment laws, including statutory leaves of absence and accommodation laws.  Feel free to reach out to any of them if you need assistance with your compliance obligations.  Stay healthy and safe.