CFRA Expansion Creates New Obligations for California Employers (SB-1383)

Last Updated on November 24, 2020 by bigfish-admin

California Governor Gavin Newsom has recently signed legislation to greatly expand the California Family Rights Act, impacting employers of all sizes in the state. Currently, CFRA requires covered employers to provide employees with 12 weeks of unpaid leave, for family and medical purposes, during each 12-month employment period. 

Effective January 1, 2021, Senate Bill 1383 changes CFRA to:

  • Apply to all employers with five or more employees.
  • Expand the scope of “family members” to include many additional categories. 

Expansion of CFRA to Smaller Employers (Those with Five or More Employees) 

Currently, CFRA applies to private employers with 50 or more employees and covers employees who work at a worksite that has at least 50 employees within a 75-mile radius. All public employers, regardless of size, are beholden to CFRA. SB-1383 will expand CFRA to apply to private employers with five or more employees, and it will eliminate the location requirement. 

Beginning January, 1 2021, CFRA will expand to apply to much smaller employers. Many small employers have never had to comply with such leave laws as CFRA, so there will be a short window of time to act and develop compliance plans. There may be a steep learning curve over the next few months, so the time to act is now.

Expansion of Definition of “Family Members” 

Currently, the CFRA allows employees to take unpaid leave for several purposes, including to care for a “family member” with a serious health condition. CFRA currently defines a qualifying family member as: 

  • A minor child (adult children are only covered when the child is a dependent of the parent) 
  • A spouse 
  • A parent

SB-1383 significantly expands the definition of “family members” to include: 

  • A child of any age (expanded to include all adult children, regardless of dependent status, as well as children of an employee’s domestic partner)
  • A spouse 
  • A parent
  • A sibling
  • A grandparent
  • A grandchild 
  • A domestic partner

This expansion means that both large and small employers will be required to provide leave for employees who are caring for various types of family members who are suffering from serious health conditions. 

Other Important Changes to Current CFRA

SB-1383 also makes two important changes to the original CFRA:

  1. Deletes provision of law that specifies that “if both parents work for the same employer, the employer is not required to provide more than a total of 12 weeks for leave in connection with the birth, adoption or foster care placement of a child.” Therefore, such an employer may now be required to provide 12 weeks to both employees in those situations. 
  2. Deletes language from the CFRA that “authorizes an employer to refuse reinstatement to salaried employees who are among the highest 10% of employees and where the refusal is necessary to prevent substantial and grievous economic injury.”

“Stacking” Problem with Federal FMLA

SB-1383 creates an interesting dilemma for employers that have 50 or more employees and are therefore covered under both CFRA and FMLA. Typically, leave under CFRA and FMLA run concurrently, meaning an employee would generally be eligible for a total of 12 weeks of unpaid leave under both laws. 

However, because SB-1383 expands the definition of “family member” under the CFRA to be inconsistent with the definition under federal FMLA, the two laws are no longer in sync. This creates an unfortunate situation for employers, in which an employee who is eligible for 12 weeks of leave under CFRA may remain eligible for an additional 12 weeks under FMLA. 

Example: An employee working for an employer with 75 employees needs to take family leave care for a sister with a serious health condition. Under SB-1383, the employee would be eligible to take 12 weeks of unpaid CFRA leave to do so. However, because siblings are not covered under the federal FMLA, the same employee would potentially be eligible to take an additional 12 weeks leave under FMLA to care for a child, parent, or spouse. This employer could be faced with the requirement of providing 24 weeks of leave to such an employee.

Action Items

Despite the circumstances brought upon businesses by the global pandemic, California employers must prepare for this law immediately, as 2021 is rapidly approaching. 

Small Employers

Small employers (those with five or more employees) need to immediately begin preparing processes for January 1, 2021. Work with your employment counsel and HR personnel to develop policies and procedures to implement and administer new leave requirements. 

All Employers

Due to the expansion of “family member” under the new law, even employers that are already covered under the current CFRA must update their policies, procedures, and forms to be compliant with the new provisions in SB-1383. 

Big Fish will continue to report on further developments to this law and other related legislation nationwide. Information contained in this publication is intended for educational or informational purposes only and does not constitute legal advice or opinion, nor is this a substitute for the professional judgment of an attorney. For additional assistance with how to prepare to comply with these new requirements, contact Big Fish Employer Services. 

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