Introduction

The California legislature enacted significant amendments to the California Family Rights Act (CFRA), which became effective on January 1, 2021. Further amendments were enacted and became effective on January 1, 2022. These amendments greatly expanded the family leave rights of employees:

• More employers are now subject to the expanded CFRA.
• More employees are eligible to take family leave under the expanded CFRA.
• More circumstances qualify for family leave under the expanded CFRA.

The consequences for violating the CFRA are potentially significant. Employers should update their leave policies and procedures to ensure that they comply with the amended requirements.

In this post, we will cover how recent legislation has expanded CFRA, highlight the differences between the Family Medical Leave Act (FMLA) and CFRA, and discuss steps your organization can take to avoid a CFRA violation.

What is the California Family Rights Act?

The California Family Rights Act was enacted as the Moore Brown Roberti Family Rights Act and is part of the California Fair Employment and Housing Act (FEHA). Although it predated the federal Family Medical Leave Act, California amended its CFRA after Congress enacted the FMLA so that it conformed with the FMLA in most respects. Because of the similarities between the prior CFRA and FMLA, leave taken under CFRA predominantly ran concurrently with FMLA leave.

Both the CFRA and FMLA provide eligible employees with up to 12 weeks of unpaid, job-protected leave to:

1. Care for their own serious health condition;
2. Care for a qualifying family member’s serious health condition; or,
3. Bond with a new child.

To be eligible for family leave under both the former CFRA and FMLA, the employee must:

1. Have worked for the employer for the past 12 months prior to the leave;
2. Have worked 1,250 hours for the employer within that 12-month period; and,
3. Worked for an employer with 50 or more employees who are employed within 75 miles of the employee’s worksite.

Under the CFRA and FMLA, employees who return to work after leave are entitled to the same or comparable position as they had before the leave along with other job protections.

There were some key differences between the former CFRA and FMLA:

• State registered domestic partners were included within the definition of spouse under the CFRA but not under the FMLA.
• Unlike the FMLA, pregnancy and childbirth-related medical leave did not count against an employee’s 12 weeks of leave available under the CFRA.

How Recent Legislation Expanded the California Family Rights Act

Amendments Effective January 1, 2021

Senate Bill 1383 (SB 1383), which was signed by Governor Newsom in September 2020, dramatically expanded leave rights under the CFRA. SB 1383 changes to the CFRA became effective January 1, 2021. The expanded CFRA applies to more employers and more employees. The circumstances for which an employee can take leave were also expanded. Employers should be aware of these key changes, which took effect on January 1, 2021:

• Employers with five or more employees are covered: Previously, the CFRA only applied to private employers with 50 or more employees. All private employers with five or more employees are subject to the amended CFRA. (The FMLA still only applies to employers with 50 or more employees.)

• No worksite limitation: SB 1383 eliminated the requirement that an employee must work for an employer with 50 or more employees who are employed within 75 miles of the employee’s worksite. Under the amended CFRA, employees who worked for the employer in the past 12 months prior to the leave and at least 1,250 hours during that 12-month period are eligible for family leave.

• Definition of “family member” expanded: The CFRA provides job-protected leave for an employee to care for the serious health condition of a “family member.” Under the prior CFRA, “family member” was limited to a spouse, domestic partner, parent, dependent minor child, and dependent adult child. The amended CFRA’s definition of “family member” includes any adult child regardless if a dependent, child of a domestic partner, grandparent, grandchild, and sibling.

• No key employee exclusion: Previously, a key employee, who is among the highest paid 10% of the employer’s employees, was not eligible for job protected leave if reinstating that employee will cause substantial and grievous injury to the employer’s operations. The amended CFRA has no such exclusion. (The FMLA continues to have this key employee exclusion.)

• No limitation for parents working for same employer: Under the prior CFRA, an employer could require that parents who both worked for the same employer take only 12 weeks total of parental bonding leave between them. Under the amended CFRA, each parent—regardless of whether they work for the same employer—can take up to 12 weeks of parental bonding leave.

• Inclusion of qualifying military exigency: Under the amended CFRA, leave may be taken for “a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.”

• Creation of small employer mediation program: SB 1383 established a mediation pilot program for smaller employers with five to 19 employees, which is administered by the California Department of Fair Employment and Housing (DFEH). This mediation program can resolve disputes over the CFRA leave. Under the program, either the employer or employee can request mediation. The employer must request mediation within 30 days of receipt of a right-to-sue notice alleging a violation of the CFRA. The employee must request mediation within 30 days of having received the right-to-sue notice from the DFEH. If either the employer or employee requests mediation, the employee cannot proceed with a lawsuit until mediation is complete. For litigation purposes, the statute of limitations is tolled from the time that the employer or employee requests mediation until the DFEH completes the mediation.

Amendments Effective January 1, 2022

Assembly Bill 1033 (AB 1033) was signed in September 2021. It enacted two major changes to the CFRA, which became effective January 1, 2022:

• Definition of “family member” further expanded: As of January 1, 2022, “family member” under the CFRA includes a parent-in-law.

• Changes to mediation program: AB 1033 requires that employees must notify DFEH’s dispute resolution division before filing a lawsuit. Smaller employers who are (i) named as defendants in a civil action or arbitration and (ii) did not receive notification because the employee failed to notify the DFEH before filing suit are entitled to a stay of the action or arbitration until the mediation is completed or deemed unsuccessful. The DFEH must initiate mediation within 60 days of receipt of the mediation request. The statute of limitations remains tolled from the date the employee contacts the DFEH’s dispute resolution division until the mediation is either complete or deemed unsuccessful.

Construction with FMLA

The recent amendments to the CFRA increased the differences between the CFRA and FMLA. As a result, there are times when a CFRA leave will not run concurrently with FMLA leave. For example, an employee caring for a non-dependent adult child or parent-in-law would be entitled to leave under CFRA but not the FMLA. In those instances, the employee’s CFRA leave would not run concurrently with any FMLA leave.

Leave Rights Under the Expanded CFRA

Employees who are eligible under the expanded CFRA are entitled to 12 weeks of unpaid protected leave. Employees may take the leave in one or more periods (i.e., they can be used in increments). This 12 weeks of leave is in addition to any other leave the employee may be entitled to such as under the Pregnancy Disability Leave, California Paid Leave Act, FMLA (if the CFRA leave does not run concurrently with the FMLA leave), workers’ compensation, etc.

During the leave period:

• Employers are obligated to:

1. Maintain and pay for health care coverage for the employee under the employer’s group health plan.
2. Allow the employee to participate in any health plans and benefit plans provided by the employer such as life insurance, short-term and long-term disability, pension, retirement, etc. The employer may require that the employee pay the premiums for these plans at the employer’s group rate.

• The employee retains employee status during the duration of the leave. The leave cannot constitute a break in service for any purpose such as for seniority, pension, benefits, etc.

Employers must “guarantee” the employee “the same or comparable position” upon returning from leave. A position is comparable if it has “the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.”

Tips for Handling Changes to the CFRA

1. Develop a plan: Plan for handling an employee’s leave. The employee’s same or similar position must be kept open for up to 12 weeks.

2. Draft/update policies: Smaller employers with fewer than 50 employees were not previously subject to the CFRA. Smaller employers should establish policies for complying with the CFRA, which should be included in their employee handbook. Large employers with 50 or more employees, which were already subject to the CFRA, should update their policies and procedures to account for the recent amendments.

3. Standardized forms: Consider creating and implementing forms to satisfy documentation requirements under the CFRA such as for employees to request family medical leave.

4. Training: Supervisors and human resources staff should be trained on CFRA requirements (or new requirements for large employers) including documentation and timing requirements.

Conclusion

Recent legislation greatly expanded the scope of the CFRA. It applies to more employers (any employer with five or more employees); more employees (no limitations for key, high paid employees and parents working with same employer); and in more situations (care for serious health condition of non-dependent adult child, domestic partner’s child, grandparent, grandchild, sibling, and parent-in-law; military exigency).

The liabilities for violating the CFRA are potentially significant and can include back pay, front pay, compensatory damages for pain and suffering and emotional distress, the employee’s attorney’s fees and litigation costs, punitive damages, and injunctive relief. Employers should seek legal advice and consult with legal counsel to ensure that their policies, procedures, and practices comply with the CFRA.

Collins + Collins LLP has an employment practices group with experienced and dedicated attorneys, who specialize in labor and employment law. Collins + Collins manages all types of labor and employment disputes for private and public employers. We provide:

• Aggressive and results-oriented defense in employment law trials, arbitrations, and mediations.
• Counseling on risk management policies and procedures to avoid and mitigate liability on an ongoing basis.

Please contact us at our Pasadena, Orange, San Diego, Northern California, and Inland Empire offices.

Jessica J. Mead, Esq.
jmead@ccllp.law

Robert R. Yap, Esq.
ryap@ccllp.law

Collins + Collins LLP
790 E. Colorado Boulevard, Suite 600
Pasadena, CA 91101
T: 626-243-1100
F: 626-243-1111

This publication is intended for informational purposes only and should not be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained herein given that facts and circumstances vary from case to case and any legal principles discussed may substantially differ in various situations. Receipt of this publication shall not create an attorney-client relationship.