Last month’s blog post and newsletter set forth new employment laws coming in 2021, including SB 1382 which provides that effective January 1, 2021, the California Family Rights Act (“CFRA”) will be expanded to apply to smaller employers (with 5 to 49 employees) and not just employers with 50 or more employees.  The following sets forth basic information related to CFRA leave.  You should consult with an employment attorney to discuss any questions you have about implementing a CFRA policy at your organization and to ensure that you are in compliance with this complex law.

What is CFRA and Who is Entitled to It?

CFRA provides protected unpaid leave from work that employees may take if they have a covered condition (an employee’s own serious health condition or to care for specifically identified family members with a serious health condition).  Under the new law, the definition of “family members” will now include one’s spouse, domestic partner, parent, child (including a domestic partner’s child), grandparent, grandchild, siblings, and a parent in-law.   To qualify for CFRA leave, an employee must have worked at least 1,250 hours in the prior 12 months for the employer. CFRA leave is unpaid leave except that accrued paid sick leave or paid time off may be applied to the leave of absence.   Employees may be eligible for State Disability Insurance (SDI) if the leave is for the employee’s own health condition, to Paid Family Leave (PFL) insurance if leave is to care for a baby or a family member with a health condition, or for military exigency.

What is a serious health condition under the CFRA?

A serious health condition is an illness, injury, impairment or physical or mental condition that involves either an overnight stay in a medical care facility or continuing treatment by a health care provider, and either prevents the employee from performing the functions of his or her job or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing-treatment requirement includes an incapacity of more than three full calendar days and two visits to a health care provider, or one visit to a health care provider and a continuing regimen of care; a chronic condition or permanent or long-term conditions; or absences due to multiple treatments. Other situations may also meet the definition of continuing treatment.

Baby Bonding Leave: Baby bonding leave, which previously was protected by the New Parent Leave Act and covered employers with 20 or more employees has now been replaced by the new CFRA and expands to employers with 5 or more employees. Baby bonding leave is in addition to the pregnancy disability leave under the Pregnancy Disability Act. Thus, an employee could be entitled to leave of up to 7 months when they have a newborn child.  (Four months leave for their own pregnancy-related disability and then 12 weeks of baby bonding leave.)   The new CFRA law also makes other changes to the law, regardless of the size of the employer. The new changes eliminate the existing restriction in CFRA that allows an employer who employs both parents to limit their total amount of CFRA leave for both individuals to a total of 12 weeks for bonding with a newborn child, adopted child, or foster care placement.  As a result of this change, where both parents are employed by the same employer and take CFRA bonding leave, they are now both entitled to a total of 12 weeks individually for such leave.

Reinstatement:  When you grant an employee’s family and medical, parental or pregnancy disability leave request, you must guarantee to reinstate the employee to the same or a comparable position. An employee on CFRA leave is also entitled to continuation of health insurance benefits at the same level as if the employee had been continuously employed during the CFRA leave. The only permissible defenses for an employer to deny a right to reinstatement is where the employee’s employment would have otherwise ceased or been changed independently of the CFRA leave (e.g., layoff, reduction in hours, or disciplinary action unrelated to CFRA leave), or where the employee fraudulently took CFRA leave when they did not otherwise qualify for the leave.  The burden is on the employer to establish both such defenses.

What you should do if an employee informs you that they are unable to work due to a health condition?

Contact An Employment Attorney:  When an employee informs you of their need for a leave of absence due to their own or a family member’s health condition, you should contact an employment attorney to determine if their condition qualifies as a serious health condition and if so, how to ensure compliance with CFRA or other protected leaves of absence.

Obtain Medical Certification:  You may require medical certification for an employee taking family/medical leave for his/her own serious illness or to care for a family member, but not for baby-bonding time.  You are entitled to a doctor’s note confirming the employee is under their care and needs to be off work.  You are not entitled to ask for the underlying condition although the employee will frequently tell you.

Document the Leave:  Assuming their own condition or their covered family member’s condition is a serious health condition, you will want to document the leave in a form or letter to the employee.  The documentation will confirm that CFRA is applicable, the dates of the leave, the amount of leave the employee has available, and whether other leave runs concurrently with it.  If you fail to confirm whether various leaves of absences run concurrently, the employee may be entitled to additional leave from work.

Implement or Update your CFRA policy and Update Your Workplace Postings:  Because the CFRA requires that all employers with handbooks include a CFRA policy, employers with handbooks will want to review and implement CFRA leave or revise their policies to include these important changes. Employers that currently use family medical leave request forms and other related forms may want to review and revise them if necessary, while smaller employers that never have complied with the CFRA before may wish to consider using such forms. Finally, employers will need to post a new CFRA poster by January 1, 2021, which will be available on the DFEH website either as an “all in one” poster or as a stand-alone poster before the start of 2021.

Have questions? Need to know more about CFRA? Join us January 14th!

On January 14, 2021, Chase Law Group will be hosting a webinar on the California Family Rights Act. Gain a deeper understanding of CFRA from Employment Attorney, Scott Liner. Registration required. Click here to register.