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Commentary: Attention employers: Rules change for unpaid leave

Issue Date: August 11, 2021
By Erica L. Rosasco
For the first time, businesses with fewer than 50 employees are subject the California Family Rights Act and must comply with rules for unpaid family or medical leave.

California employers need to be aware of significant changes to the California Family Rights Act that became effective at the start of 2021. For the first time, employers with fewer than 50 employees are subject to the law and need to take steps to educate themselves on complying with their new obligations. Larger employers that were previously subject to the law should also be aware of changes to their obligations and update their policies to ensure compliance.

The CFRA requires employers to provide qualifying employees with up to 12 weeks of unpaid leave for medical and family care reasons. They may include an employee's illness, a family member's serious health condition, or the birth or adoption of a child.

Employees qualify for leave if they have worked for the employer for at least a year and for at least 1,250 hours in the past 12 months. If such an employee requests leave, the employer must grant the request and guarantee that their job (or a comparable position) is available when they return. The employee may take the leave all at once or intermittently, and the employer must continue to provide health insurance coverage to an employee on CFRA leave under the same conditions as coverage would have been provided had the employee been actively at work.

Before 2021, the CFRA applied only to employers with 50 or more employees within a 75-mile radius. But since Jan. 1, California employers with as few as five employees are subject to the CFRA's complex and potentially burdensome obligations. As most small businesses have never had to deal with protected medical leave before, there is a steep learning curve to comply with the new law. Employers who are subject to the CFRA for the first time should be sure to draft compliant CFRA leave policies and institute leave procedures.

They will need to approve, administer, and track employee leaves. Compliance can be tricky, and employers should seek expert guidance to ensure they meet their new obligations.

The change in the law also presents new challenges for employers of 50 or more employees that may be used to complying with the former CFRA. Several exemptions in the law no longer apply, and the scope of family members for whom leave is available has been expanded. The changes also affect how the Act interacts with other laws that require these employers to provide leave time. Accordingly, larger employers will need to update their practices to comply with the changes.

Before 2021, the CFRA had a "key employee" exemption that allowed an employer to refuse to grant leave to a salaried employee who was among the highest-paid 10 percent of the employees within 75 miles of their worksite. Additionally, an employer of both parents of a child were required to provide only up to 12 weeks of leave to care for the child between the two employees. Both exemptions have been eliminated. Employers may not refuse to provide leave to key employees and must grant each parent-employee the full 12 weeks of leave time.

The change in the law could require an employer to provide twice as much leave as before. In addition to leave required under the CFRA, employers with 50 or more employees within a 75-mile radius are also required to grant up to 12 weeks of medical leave under the federal Family and Medical Leave Act.

In the past, CFRA provisions closely overlapped the requirements of the FMLA, and leave time granted under one act would simultaneously exhaust the leave available under the other. However, the new version of the CFRA expands the scope of family members for whom leave is available beyond those listed in the FMLA. They now also include grandparents, grandchildren and siblings. Leave granted for the care of those family members under the CFRA would not exhaust leave available under the FMLA.

This could require an employer to provide for up to 24 weeks of leave to a single employee within a 12-month period. For example, an employee could take 12 weeks of leave to care for a sibling under the CFRA and then take an additional 12 weeks of leave time to care for their child under the FMLA.

California employers with at least five employees must now be careful to comply with the provisions of the CFRA. The Farm Employers Labor Service, an affiliate of the California Farm Bureau, will be hosting a webinar regarding the expansion of the CFRA to small employers. I will conduct a webinar to help agricultural employers better understand this recent expansion of the CFRA at 10 a.m. Aug. 27. To register, go to https://www.fels.net/1/ and click on "FELS Webinars."

There is no cost to attend, and I hope you can join us for answers to your questions about CFRA expansion.

(Erica L. Rosasco is a partner at the McKague Rosasco law firm. You can reach her at 916-672-6552 or Erica@mckaguerosasco.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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