California’s Small Employers Must Comply With New Unpaid Leave Requirement

California employers — who were faced with numerous changes in leave put into place over the past several months by local and state politicians in response to the global pandemic — will have to deal with another set of changes on January 1, 2021 when the expansion of the California Family Rights Act (CFRA) goes into effect.

The new law requires that employers with 5 or more employees allow employees to take up to 12 work weeks of unpaid, job-protected leave during any 12-month period to bond with a new child or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.

Previously, employers with 50 or more employees were subject to CFRA requirements and its federal equivalent, the Family and Medical Leave Act (FMLA).

In a nutshell, the expansion of California’s existing unpaid leave requirements increases the number of employers that must comply by extending compliance requirements to small businesses. It also expands the definition of family in the CFRA to include siblings, grandparents, grandchildren, adult children, and parents-in-law — and allows leave to address a military exigency.

Democratic Gov. Gavin Newsom signed the bill into law on September 17, 2020. Nearly 6 million more Californians will qualify for job-protected family and medical leave under the new requirements, according to a statement from the Governor’s office.

Nearly 6 million more Californians will qualify for job-protected family and medical leave under the new requirements.

Differences from federal law

Legal experts say the changes to the state law means that the CFRA, which was similar to the federal Family Medical Leave Act (FMLA), now has important differences from the federal law and that the state law can create entitlements for employees under both laws for as many as 24 weeks of protected leave over 12 months under certain circumstances. For example, an employee can take 12 weeks of CFRA leave for a reason that the FMLA does not cover, and then take 12 additional weeks of FMLA leave for a reason that the FMLA does cover.

Who can take leave?

Employees with at least 1,250 hours of service with the employer during the previous 12 months qualify. The requirement that an employee work at a worksite where the employer employs 50 or more employees either at the worksite or within 75 miles of the worksite has been eliminated.

Who has to comply?

California employers, whether public or private, that have 5 or more employees.

Purpose of leave

A qualified employee can take CFRA leave for the following reasons:

• The birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee

• To care for a child, including an adult child over 18 years of age, parent, grandparent, grandchild, sibling, spouse, or registered domestic partner who has a serious health condition

• Because of an employee’s serious health condition that makes the employee unable to perform the job, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, or
• Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the United States Armed Forces

Qualified employees can take CFRA leave for reasons under the expansion of the existing leave law not previously allowed and can take leave for reasons under the state law that are not found under the FMLA.

The new leave requirements eliminate the previous restrictions under the CFRA, that were similar to the FMLA, that an employee could not take leave to care for their adult child over 18 years of age with a serious health condition unless the child was incapable of self-care because of a physical or mental disability.

The leave is job-protected, which means that employees have the right to be reinstated to their job or an equivalent position and employers must continue to offer health insurance benefits to employees out on leave. It also does not constitute a break in service for purposes of longevity or seniority under a collective bargaining agreement.

Employee notice

Employees must provide reasonable advance notice of the leave if the employee’s need for leave is foreseeable.

If the employee’s need for leave is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the healthcare provider or the individual requiring the treatment or supervision.

Certification of healthcare provider

An employer may require that an employee’s request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the healthcare provider of the individual requiring care. Employers can require recertification if employees need additional leave beyond what the healthcare provider estimates.

An employer may require that an employee’s request for leave because of the employee’s own serious health condition be supported by a certification issued by the employee’s healthcare provider.

No retaliation

Employers can not interfere with or deny employees their rights under the law including discharging, fining, suspending, expelling, refusing to hire, or discriminating against an individual because the individual exercised their right to family care and medical leave under the law or because the employee participated in an inquiry related to their rights under the law.

Mediation pilot program established

Gov. Newsom also signed AB 1867, a bill that creates a small employer family leave mediation pilot program that allows small employers to request free mediation before an employee is allowed to file a lawsuit in court over leave issues.

A multitude of leave requirements

In 2019, Gov. Newsom expanded California paid family leave from 6 to 8 weeks for each parent or caretaker of a newborn child, on top of the existing 6 to 8 weeks of paid pregnancy disability leave already provided to birth mothers, bringing California closer to the goal of 6 months of paid family leave.

Earlier this year, in response to the coronavirus pandemic, California state and many of its local politicians passed emergency laws allowing workers to take paid leave to handle absences created by exposure and treatment of the coronavirus for themselves and family members.