California Family Rights Act (CFRA) Will Extend to Small Employers

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September 30, 2020

Governor Newsom signed Senate Bill 1383, which expands the Moore-Brown-Roberti Family Rights Act, more commonly known as the California Family Rights Act (“CFRA”), to apply to employers with five or more employees. The law goes into effect January 1, 2021. The current version of the CFRA, which expires December 31, 2020, applies to employers with 50 or more employees within 75 miles of the worksite (as well as public employers of any size), if the employee has worked at least 1,250 hours in the previous 12 months for the employer.

The CFRA requires covered employers to provide up to 12 weeks of job-protected, unpaid leave during a 12-month period for specified family and medical leave, such as bonding with a new child, or caring for the employee or employee’s family member. Employers must maintain health insurance coverage for employees during the duration of the leave, at the same level as would have been provided prior to the leave (if insurance was provided by the employer).

The new law makes additional changes to the existing CFRA, in addition to simply lowering the number of employees required for the law to apply. The new law expands the definition of “family members” for whom employees can take CFRA leave, to include grandparents, grandchildren, and siblings. The definition of “child” has also been expanded to include children of domestic partners, as well as adult children (even if they are not under 18 years of age or a dependent).

Starting January 1, 2021, covered employers must therefore provide CFRA leave for the following reasons:

1) For the birth of a child of the employee or placement of an adopted or foster child;

2) To care for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a serious health condition;

3) An employee’s own serious health condition that makes the employee unable to perform the employee’s job functions, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions (see below); or

4) A qualifying exigency related to active duty or call to covered active duty of an employee’s spouse, domestic partner, child or parent in the Armed Forces.

The new version of the CFRA also deletes a provision which stated if both parents worked for the same employer, the employer was not required to provide more than 12 weeks total of leave relating to a birth, adoption or foster care placement of a child. This means that employers must now provide both parents with 12 weeks of leave for this reason.

Also, whereas the old version of the CFRA allowed an employer to refuse to reinstate an employee to same or comparable position if the employee was salaried and among the 10% highest paid employees (if necessary to prevent substantial and grievous economic injury to the employer’s operations), the new CFRA omits this provision, so employers can no longer use this defense. (The federal Family and Medical Leave Act, however, still contains a similar provision.)

Because of the expanded coverage provided by the new CFRA, California’s New Parent Leave Act (which became effective January 1, 2018) is being repealed, since it will be obsolete. The New Parent Leave Act applied to employers with at least 20 employees, requiring them to provide eligible employees with up to 12 weeks’ unpaid, job-protected leave to bond with a newborn child, adopted child or foster child.

The new CFRA does not in any way affect the rights already provided by California regarding pregnancy disability leave. Those rights are separate and distinct from those provided by the CFRA. Under existing law, covered employers (those with five or more employees) must provide employees disabled by pregnancy, childbirth, or a related medical condition to take up to four months’ job-protected leave before returning to work, and must maintain and pay for coverage under a group health plan for an employee who takes that leave, as specified.

For more information on the California Family Rights Act and other family leave laws, please see our articles:

California Family Rights Act (CFRA) – the Basic Rules

Medical Leave under CFRA and FMLA

What is Pregnancy Discrimination and Harassment of Employees under California Law?

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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.