Important changes to the California Family Rights Act (CFRA) became effective January 1, 2021.
Small employers – take note! Employers of five or more employees are now covered by CFRA. The federal counterpart, the Family and Medical Leave Act (FMLA), still applies only to employers of 50 or more. Under CFRA, you must generally provide up to twelve weeks of unpaid leave to employees for their own serious health condition, to care for a family member with a serious health condition, bond with a new baby or newly adopted or foster child, and participate in certain military activities.
Even if you were already a CFRA-covered employer, you need to be aware of significant new changes to CFRA. The amended law:
- Removes the geographic restriction in the definition of an employee.
- Defines employee for these purposes as an individual who has at least 1,250 hours of service with the employer during the previous 12-month period.
- No longer requires that the employees be within a 75-mile radius.
- Expands the definition of family member to include grandparents, grandchildren, and siblings (in addition to children, parents, and spouse).
- Now requires an employer employing both parents of a child to grant leave to both employees for “baby bonding.”
- No longer permits an employer to refuse to reinstate “key employees.”
- Adds leave for military activities of employees, and their spouses, domestic partners, children, or parents.
Previously, there was little difference between CFRA and FMLA. These changes dramatically widen the gap between the two leave laws. Employers covered by both laws should not assume that an employee’s FMLA and CFRA leaves will be concurrent, or that employees who are ineligible for FMLA will be ineligible for CFRA.
If you are new to CFRA, it is critical that you take the time to learn what the law covers and what you need to do to implement it. A few important points to understand:
- There are notice requirements that, if not complied with, may result in a leave not being designated as a CFRA leave.
- The CFRA leave does not run concurrently with a Pregnancy Disability Leave. Thus, an employee who finishes her pregnancy disability leave is still eligible for a CFRA “baby bonding” leave.
- Employers must maintain an employee’s group insurance benefits in the same manner during the leave as before the employee went on leave.
- Providing all twelve weeks of CFRA leave does not mean that you may not be required to provide a longer leave of absence as a reasonable accommodation of a disability.
- If you have an employee handbook that describes leave policies (and you should!), you must provide information about CFRA in it.
- You have an obligation to advise employees of their CFRA rights if you become aware of circumstances giving rise to a CFRA-eligible leave, even if employees do not request the CFRA leave.
What should you do now?
- Understand the principal requirements of CFRA.
- Draft or update a CFRA policy and include it in your employee handbook.
- Prepare a CFRA checklist, notice template, and related documents so that you can implement a CFRA leave properly when the need arises.
- Order your DFEH required posters for Pregnant Employee Rights and CFRA and Pregnancy Leave.
Related practice team: Labor and Employment
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