California Legislature Expands California Family Rights Act
Los Angeles, Calif. (October 15, 2020) - California Governor Gavin Newsom recently signed legislation that greatly expands the scope and application of the California Family Rights Act (CFRA). This legislation goes into effect on January 1, 2021, so employers should prepare now to comply with the new requirements.
Senate Bill 1383 (SB1383) expands the CFRA, which largely mirrors the federal Family Medical Leave Act (FMLA), to make it an unlawful employment practice for any employer with five or more employees to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period. Previously, the CFRA’s application was limited to private employers with 50 or more employees within 75 miles of the worksite, as well as public employers. With this expansion, the CFRA will apply to much smaller employers – those with five or more employees – with no geographical restrictions.
The CFRA already allowed an eligible employee to take unpaid leave to care for a “family member” with a serious health condition. “Family member” was defined to include a minor child, adult dependent child, spouse, or parent. SB1383 expands the scope of “family members” for whom employees can take leave to include many additional categories, such as grandparents, grandchildren, siblings, and domestic partners with a serious health condition. The term “family member” also includes all adult children (regardless of whether they are dependent adults) and children of a domestic partner.
CFRA and FMLA leave can run concurrently, making the employee eligible only for 12 weeks of leave total. However, with the expanded definition of “family member,” employers with 50 or more employees who are subject to both CFRA and FMLA requirements may now face the prospect of providing 12 weeks of leave for a CFRA-qualifying family member, and having to provide an additional 12 weeks of leave under the FMLA for an FMLA-qualifying event.
The CFRA previously provided that the employer need not provide more than a total of 12 weeks of leave for the birth, adoption, or foster care placement of a child if both parents work for the employer. SB1383 removes that exception, requiring instead that if both parents work for the same employer, the employer must now provide both of those employees with 12 weeks of leave.
The CFRA also previously had an exception that authorized an employer to refuse reinstatement to “key employees,” i.e. salaried employees who were among the highest 10% of the employees, and where the refusal was necessary to prevent substantial and grievous economic injury. SB1383 removes that language from the CFRA.
Employers of all sizes should prepare to bring their policies into compliance with the expanded CFRA. Larger employers that have already been subject to the CFRA should make note of the expanded definition of “family members,” the possibility of stacking CFRA and FMLA leave, the obligation to provide leave to both parents where they work for the same employer, and the removal of the “key employee” exception. Smaller employers previously not subject to the CFRA should prepare to comply with the statute.
While SB1383 does not go into effect until January 1, 2021, now is the time to prepare and adjust policies and procedures. Lewis Brisbois’ Labor & Employment attorneys are available to assist with any inquiries regarding these and other rapidly developing employer obligations. Visit our Labor & Employment Practice page to find an attorney in your area.
Francesca Maghsodi, Associate
Ashleigh Reif Kasper, Partner