New Regulations Clarify Time Off Under California Family Rights Act

In recently published amendments to its regulations, the California Fair Employment & Housing Council (FEHC) has clarified formerly confusing rules and brought the California Family Rights Act (CFRA) into closer parallel to the federal Family and Medical Leave Act (FMLA), although significant differences remain between the two laws. Employers with California employees need to update their medical leave policies to bring them into compliance with the new regulations. Below is an overview of some of the key changes.

The amended CFRA regulations align CFRA and the FMLA in the following significant ways:

Revised Definitions

• “Covered employer” now includes successors in interest of a covered employer;
• “Joint employer” means two or more businesses exercising joint control over the work or working conditions of an employee, where there is an arrangement between employers to share/interchange employees, where one employer acts directly or indirectly in the interest of the other, or where there is common control over the employee; and
• “Key Employee” means a salaried employee among the highest 10 percent of the employer’s workforce, calculated by comparing the year-to-date “wages” within the meaning of the California Labor Code and Industrial Welfare Commission Wage Orders.

Determining Eligibility

• The employee’s assigned worksite must be used as the basis for determining if there are 50 employees within a 75-mile radius (which is important where the employee has no fixed worksite or more than one worksite);
• Employment periods prior to a break in service of seven years of more, except for military service or by written agreement, are not included when calculating whether the employee worked for at least 12 months to be eligible for CFRA leave; and
• An employee who has met the 1,250-hour requirement but has not yet worked 12 months can become eligible for CFRA while on an otherwise-authorized leave. Once the employee reaches 12 months of employment (to include time on leave), the leave should thereafter be designated as CFRA leave.

Responding to Leave Requests and Employer Inquiries

• Employers must respond to CFRA leave requests within five business days and tell employees whether they have met the length of service, minimum hours, and 75-mile radius requirements for the requested leave (Notice of Eligibility and Rights and Responsibilities Form);
• Absent extenuating circumstances, employers may deny CFRA protection after 15 days following the request for certification or recertification until employees provide sufficient certification or recertification. However, at the time employers request certification, they must advise employees of the potential consequences for failure to provide adequate certification; and
• Employers who suspect employees fraudulently obtained or used CFRA leave may argue employees are not protected by CFRA, but the burden of proof is on employers.

Refusal to Reinstate: Employers may “refuse to reinstate” key employees following leave only because of sustained and grievous economic injury or substantial long-term economic injury to the employer and only when certain other conditions are met.

The amended CFRA regulations differ from the FMLA in the following ways:

Expanded Benefits for Pregnancy Disability Leave

Leave pursuant to California’s Pregnancy Disability Leave law (PDL) does not run concurrently with leave taken under CFRA because pregnancy disability is not covered by CFRA. As a result, employees may take up to 29 1/3 weeks under these laws: (1) unpaid, protected PDL leave (up to four months only while disabled); and (2) a subsequent CFRA baby bonding leave (up to 12 weeks within the year after the triggering event). Importantly, employers must maintain employees’ medical benefits at the same contribution rates during both PDL and CFRA leaves of absence.

Intermittent and Reduced Schedule for Bonding

The basic minimum duration of leave used in connection with the birth, adoption, or foster care placement of children is two weeks. However, employers must grant a request for CFRA leave of less than two weeks on any two occasions.

Tighter Restrictions on Contacting Medical Providers and Medical Certification

• Employers cannot contact the employee’s healthcare provider for any reason other than to authenticate a medical certification;
• Employers must have a “good faith, objective reason” to doubt the validity of a medical certification to seek a second opinion (limiting second opinions to the employee’s own serious health condition); and
• Employers cannot ask employees to provide additional information in the certification process, such as symptoms or the underlying diagnosis. Thus, the U.S. Department of Labor’s certification form should never be used in California (CFRA Certification Form).

Relationship between CFRA and Paid Leave

The amended regulations bring clarity and reform to how various forms of employer-provided paid leave interact with CFRA leave:

• If an employee is receiving a partial wage replacement benefit during CFRA leave (workers’ compensation, State Disability Insurance, employer-provided disability plan, Paid Family Leave, etc.), the employer and employee may agree to have paid leave (vacation, paid time off, or sick time) supplement the partial wage replacement, but the employer may not require it because the leave is not considered to be unpaid;
• With the exception of sick leave as to which there are additional considerations (see below), employers may require employees to use any accrued vacation time or other paid time off during the otherwise unpaid portion of the CFRA leave (but not during PDL);
• If the CFRA leave is for an employee’s own serious health condition (as opposed to a relative’s), the employer may require the use of any accrued paid sick leave, during the otherwise unpaid portion of the CFRA leave and/or PDL; and
• If the CFRA leave is for an employee’s own serious health condition, the employee may substitute leave taken pursuant to a short- or long-term disability leave plan. This paid disability leave runs concurrently with CFRA leave and may continue longer than the CFRA leave, if permitted by the disability leave plan; and
• The amended regulations do not impact the regulations applicable to PDL and the substitution of paid leave (vacation, paid time off, or sick time) during such leave, even where the employee is receiving a partial wage replacement benefit such as SDI or STD. As a reminder, employers cannot require employees who are on PDL to substitute vacation time for the unpaid portion of their leave. Employers can, however, require that employees substitute sick leave while on PDL provided the leave is not running concurrent with leave under the FMLA.

New Posting and Publishing Requirements

• Employers must provide to employees the state-generated CFRA notice either by posting it in conspicuous places where employees tend to congregate or by electronic posting;
• If the workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as primary spoken language, then employers must translate the CFRA notice in every language that is spoken by at least 10 percent of that workforce; and
• If employers publish an employee handbook that describes other kinds of personal or disability leaves available to employees, employers must include a description of CFRA leave in the next edition of its handbook, and may include both pregnancy disability leave and CFRA leave requirements in a single policy statement.

Practical Considerations

The CFRA exists alongside California’s new sick leave law, as well as California’s not-so-new kin care law and pregnancy disability law. Employers with California employees should update their leave policies and practices to assure compliance with all of these laws, as well as to achieve internal coherence. It is especially important to focus on the issue of mandating sick leave use for employee absences, as the law here has been murky for some time, and now is clarified. It also is important to ensure that CFRA leave requests are processed quickly and appropriately, given the shortened 5-day time limit to respond to leave requests.

Employers may want to consider training managers and HR staff about California’s leave laws, especially how the CFRA, FMLA, and other leaves of absences (e.g., statutory paid sick leave, workers’ compensation leave, disability accommodation leave, pregnancy disability leave, kin care leave) are counted and administered together. And, employers should remember that they have an affirmative duty to offer CFRA leave if they become aware that the employee may need it, even if the employee does not specifically ask for CFRA leave.