Bill Adds Small Business to CFRA

In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank, and CalChamber Policy Advocate Ashley Hoffman discuss SB 1383, a CalChamber job killer bill that is awaiting action by the Governor. The bill requires that employers with five or more employees provide up to 12 weeks of protected mandatory family leave to eligible employees.

If Governor Gavin Newsom signs SB 1383, the bill would take effect on January 1, 2021.

Significantly Expands California Family Rights Act

SB 1383 (Jackson; D-Santa Barbara) expands the California Family Rights Act (CFRA) to include employers with only five employees. As the law currently stands, Hoffman explains, CFRA applies only to employers with 50 or more workers. Employees would be eligible for the leave provided under SB 1383 once they have worked for an employer for at least 12 months and completed 1,250 hours of service at a worksite.

Similar to the federal Family and Medical Leave Act law (FMLA), the leave created under this bill would allow an employee to take leave to care for themselves or for a family member. The bill also expands the category of “family member,” so an employee would be able to take leave to care for grandparents, grandchildren, siblings, and parents in law, for example, she says.

Leave Duration, Job Protection

Hoffman points out that while SB 1383 does not change federal leave law, the bill may change the way CFRA is taken in relation to the FMLA.

As it stands today, an employee may take CFRA and FMLA concurrently, because both laws apply to employers with 50 or more employees, and grant time to care for a spouse, child or parent. If SB 1383 is signed into law, however, an employee can conceivably stack both leaves. For example, an employee may qualify for CFRA, but not the FMLA due to the employer’s size or due to caring for a family member not covered under the FMLA. Then, should the employee become ill, the employee would then qualify for an additional 12 weeks of leave under the FMLA.

In this way, SB 1383 would require that employers give a “considerable amount of time” off to an employee, Hoffman says.

The new leave also could be taken intermittently, allowing an employee to take a day off here and a day off there or even in blocks of time as small as one or two hours, she tells Frank.

The bill includes a private right of action component, so employers should pay particular attention to the legal requirements of this potential new law, especially since intermittent leave can be difficult to keep track of, Hoffman stresses.

Lastly, Hoffman explains that SB 1383 also includes a job protection component and protects from retaliation the employee who is taking the leave. The employer must return the affected employee to the same or comparable job position when they return from leave. Therefore, any replacement worker found to cover the leave of the affected employee must be temporary.

Governor Newsom has until September 30 to sign or veto SB 1383.