We have more than 50 employees and are already covered by the California Family Rights Act (CFRA), so how will the CFRA expansions under SB 1383 affect us as a large business?
Under existing law, employers with 50 or more employees are subject to the CFRA and its federal equivalent, the Family and Medical Leave Act (FMLA).
When SB 1383 goes into effect on January 1, 2021, however, the CFRA will be widely expanded to cover all employers with five or more employees.
The new law also repeals the New Parent Leave Act (NPLA) as of January 1, 2021, which currently covers employers with 20 or more employees and provides leave for baby bonding.
Eligibility Requirements
Although SB 1383 has drastic implications for smaller employers not previously covered under CFRA, large employers should be aware of several changes.
For example, the eligibility requirements for an employee to take CFRA leave will be that the employee:
- has at least 12 months of service with the employer, and
- has at least 1,250 hours of service with the employer during the previous 12-month period.
Notably, the requirement that an employee work at a worksite where the employer employs 50 or more employees either at the worksite or within 75 miles of the worksite, has been eliminated.
This means that employees previously ineligible, due to working at a small worksite and/or based on their location, may now be eligible for CFRA leave.
Family Member Categories
In addition, employees may take CFRA leave to care for additional categories of family members.
Specifically, in addition to taking leave to care for a child, parent, spouse or registered domestic partner with a serious health condition under existing law, an eligible employee also may take CFRA leave to care for grandparents, grandchildren, siblings, adult children and parents-in-law. These new categories of family members are not included in the FMLA.
Qualifying Military Exigency
Also, eligible employees may now take CFRA leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child or parent in the U.S. Armed Forces. This is also a qualifying reason under the FMLA.
Eliminated Provisions
For baby bonding leave under CFRA, the limitation on the amount of leave that parents may take to bond with a new child when both parents are employed by the same employer, has been eliminated.
Another elimination in the law is the “key employee” provision that previously allowed an employer to deny reinstatement under certain limited circumstances.
Leave Interactions
With the various CFRA expansions, there may be more instances in which an employee takes leave under the CFRA without having FMLA leave run concurrently (at the same time).
For example, an employee could theoretically use 12 weeks of CFRA leave to care for a grandparent with a serious health condition (which is not a qualifying reason under the FMLA), and then in the same 12-month period use another 12 weeks of FMLA leave due to their own serious health condition — for a total of 24 weeks of leave within a 12-month period.
This is just one example of how the CFRA and FMLA will interact differently under the new law.
Employers should familiarize themselves with the changes in the CFRA, update their family and medical leave policies to account for those changes (and the repeal of the NPLA), and pay close attention to the qualifying reasons when administering and tracking leave under the CFRA and/or FMLA.
Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber
