In the latest expansion of California's family and medical leave law, effective January 1, 2021, employers with five or more employees will be required to provide unpaid family and medical leave to qualifying employees. The new law, SB 1383, also allows employees to take protected leave to care for an expanded set of family members under circumstances beyond what the earlier version of the law provided.
As the COVID-19 pandemic continues across the country, this new law will be particularly impactful as California employees may increasingly seek leave to care for themselves and their family members.
Employee Qualifications Remain
As under the California Family Rights Act (CFRA) — a
predecessor to SB 1383 — California employees may qualify for
up to 12 weeks of job-protected, unpaid family and medical leave so
long as they have worked for a qualifying employer for 12 months
and 1,250 hours in the previous 12-month period.
Coverage is Expanded to Employers of Five or More
Employees
Previously under the CFRA, California employers of fewer than 50
employees within 75 miles of a worksite were not required to
provide family care and medical leave to employees, and employers
with fewer than 20 employees within 75 miles were not required to
provide baby bonding leave under California's New Parent
Leave Act (NPLA).
The new law repeals the NPLA and amends the CFRA to require California employers with at least five employees to provide statutory leave to qualifying employees. During the duration of a CFRA leave, the employer must also pay for the employee's coverage under a group health plan at the same level and conditions as if the employee had continued their employment during the leave.
The expansion of the CFRA allows employees of smaller companies to take advantage of California's Paid Family Leave Program with the benefit of job protection.
Employees May Take Leave for Additional
Reasons
The prior CFRA only provided for protected leave for an employee to
bond with their new child or care for themselves or their minor
child, parent, spouse or domestic partner. Now, eligible employees
in California may also take leave to care for their grandparent,
grandchild, sibling or adult child.
Employers must also now provide up to 12 weeks of unpaid leave during any 12-month period due to a qualifying exigency related to covered active duty or call to covered active duty of an employee's spouse, domestic partner, child or parent in the U.S. Armed Forces.
Each Parent Receives Up to 12 Weeks Leave
Previously, if two parents of a child both worked for the same
employer and each parent requested leave in connection with the
birth, adoption or foster care placement of the child, the employer
was only required to provide a combined total of 12 weeks of unpaid
leave to the parents. Under the new law, each parent of the same
employer is entitled to 12 weeks of unpaid leave.
Employers Cannot Refuse Reinstatement of “Key
Employees”
The new law also removes an employer's right to refuse to
reinstate certain “key” salaried employees where the
refusal is necessary to prevent substantial and grievous economic
injury to the employer.
Interaction of CFRA and the Federal FMLA
California's expanded family and medical leave statute opens
the door for employees to take two separate leaves under the CFRA
and the federal Family Medical Leave Act (the FMLA) in certain
circumstances. Previously, because the CFRA and the FMLA provided
leave for employees to care for the same set of family members,
employees taking CFRA leave generally took any FMLA leave
concurrently.
Now, this new law allows qualified employees to take leave to care for certain family members who are not covered by the FMLA. Therefore, an employee who takes leave under the expanded CFRA to care for a family member who is not covered by the FMLA (such as a sibling, grandparent or grandchild) would not concurrently utilize FMLA leave. In that situation, an employee who works for an employer who is also covered by FMLA would be able to take CFRA leave and remain eligible to take FMLA leave later in the year if, for example, they subsequently needed leave to care for their parent.
Small Employer Family Leave Mediation Pilot
Program
Employers with five to 19 employees may utilize a new Small
Employer Family Leave Mediation Pilot Program with the Department
of Fair Employment & Housing (DFEH) to mediate claims brought
by employees under SB 1383. Employers may request mediation through
the DFEH within 30 days of receipt of an employee's DFEH
right-to-sue letter, and the employee will be precluded from
pursuing a civil claim in court before completing mediation. The
pilot program extends until January 1, 2024.
Originally Published by Davis & Gilbert, November 2020
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