Rand L. Stephens & Richard Koss

Amendments to California Family Rights Act Provide Expanded Family Leave Protections

Family Leave

On July 1, 2015, revised regulations went into effect in California relating to the rights of California employees to take time off from work in order to take care of a newborn child, to care for a newly adopted or foster child placed with the employee, to care for a child, parent, or spouse of the employee who has a serious health condition, or to care for their own serious health condition.

The new regulations are the result of amendments to the California Family Rights Act, or “CFRA.” Under the CFRA, workers can take up to 12 weeks of leave from their jobs in one year in order to attend to the family situations listed above.

Old Law, New Name

Prior to the July 2015 amendments, the CFRA was also known as the Family Care and Medical Leave Act, so you may still hear it referred to by the previous name, especially as many people are unaware that the CFRA is different from the federal Family and Medical Leave Act, or “FMLA.” One of the reasons for the official name change was so the FMLA and CFRA are less likely to be confused with each other.

Like before, the CFRA only applies to companies operating in California that have 50 or more employees. Furthermore, to be eligible for the family leave provisions of the CFRA, an employee must have worked for the company for 12 months prior to the leave and worked for at least 1,250 hours during the 12-month period prior to the leave, which is approximately 24 hours per week over a 52-week period (both part-time and full-time employees are eligible for family leave).

A company may still not retaliate against an employee, including firing or otherwise penalizing an employee, for exercising his or her rights to take up to 12 weeks of family leave under the CFRA. The CFRA coincides with the FMLA, which is a federal law providing similar protections. Note that neither the CFRA nor the FMLA requires that an employer pay the employee for the time the employee is on family leave, although companies may voluntarily pay for such leave time, for example through a paid maternity or paternity leave program.

Amendments Enhance Family Leave Coverage

One of the new amendments to the CFRA gives an employee who is employed by more than one employer the right to include all of his or her employers in calculating eligibility under the CFRA, so long as there is some connection between the employers. Thus, if an employee works 20 hours a week for one car dealership and 20 hours a week for a second car dealership, and both dealerships are owned by the same party or related parties who are working together, then that employee can meet the requirements of showing at least 1,250 hours of work in a 12-month period even though work for just one of the dealerships may not have been enough to qualify under the previous CFRA rules.

Another notable amendment is that the CFRA has now clarified the definition of “spouse” to include registered domestic partners and same-sex marriage spouses.

The new amendments also clarify that an employee who is returning from leave should be restored to a position with the same level of skill, responsibility, pay, benefits, shift, schedule, and geographic location, but the CFRA does not prevent an employer from accommodating an employee’s request for different working conditions, such as a different position or a different role within the company.

The amendments to the CFRA also provide some new guidance regarding the 30-day notice that an employee is required to give an employer before going on leave, and indicate that so long as an employee is communicating some justifiable reason for the leave under the CFRA for taking a leave within the proper notice period, then this will be sufficient notice, and an employee is not required to specifically discuss the CFRA in making the request. For example, if an employee tells her employer that she will be taking 12 weeks of leave to care for a new foster child, and this occurs 30 days before the leave, this will be sufficient notice for the protections of the CFRA, even if the employee doesn’t mention the CFRA by name in giving the notice.

Big Changes to Come?

The CFRA currently applies only to companies operating in California that have 50 or more employees. SB-406, which passed in the California Senate, would change that requirement to 25 employees. Many more employees would thus be eligible for leave under the CFRA. The bill is currently pending in committee in the House.

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