What Employers Are Subject to CFRA?
As of the start of 2021, the California Family Rights Act (CFRA) was expanded. This was a significant expansion of the act, and most employers in California were impacted by it in some way. However, are you unclear whether your business or organization is subject to CFRA, especially following the recent expansion? Here is a brief guide to the CFRA, including what it actually entails and how to know if you’re subject to its regulations. By adhering to these new guidelines, you can ensure that your organization doesn’t face employment litigation.
The Expansion of CFRA
On September 17th, 2020, CA Governor Gavin Newsom signed into law the expansion of CFRA under SB-1383. This key amendment then went into law on January 1st, 2021. Back when the CFRA was first created, it was actually modeled after the federal government’s Family and Medical Leave Act, or FMLA. Even so, there have always been some fairly significant differences between the two acts. The recent amendment of CFRA, however, has only made those differences more prominent than ever.
The Most Notable Changes to CFRA, Post-Expansion
Although the amendment to CFRA has resulted in a number of changes, here are some of the most widespread, which many employers will need to remain aware of:
Before the expansion, CFRA coverage only applied to private organizations with over 50 employees; however, after the expansion, any employer with more than five employees will be impacted by the CFRA.
The definition of “family members” has been expanded when it comes to determining who qualifying employees can leave work to provide care for.
Those with family members currently involved in active military duty will now be provided required leave from work; this has always been included in the FMLA; however, it was previously left out of the CFRA.
Here is a complete list of the CFRA changes that were put in place at the start of 2021:
1. Coverage Has Been Expanded to Small Employers
In the past, the only employers that were impacted by CFRA had a minimum of fifty employees (within 75 miles of the organization’s worksite) if they were private employers. For public companies or organizations, they were always affected by CFRA coverage. Due to the amendment to CFRA, private employers now only need a minimum of five employees to be covered by the act. It is also no longer required that any employees work within 75 miles of the worksite.
This means that the majority of California employers will now be impacted by the CFRA. Many employers who weren’t previously impacted by family and medical leave laws will now have these laws applied to them.
2. The Definition of “Family Member” Has Been Expanded
Prior to the amendment being put in place, the CFRA stated that qualified employees must have been permitted to take unpaid leave if they needed to care for a family member with a serious illness or health condition. In the past, however, “family member” was only used to describe a parent, spouse, or minor child.
Now, “family member” has been expanded to include grandparents, grandchildren, siblings, adult children, and domestic partners. As a result, the number of individuals who qualify for this form of unpaid leave has risen.
3. If an Employer Employs Both Parents, They Must Both Be Granted Full Leave
Before the CFRA was expanded, if both parents of a child were employed by the same entity, their employer was permitted to limit the total amount of leave those parents could take. This time was required to total at least twelve collective weeks.
Now, separate CFRA leave must be granted to both parents, even if they are employed by the same employer. This leave can occur at the same time, although if the parents desire, it can also occur back-to-back. Alongside this change, California’s New Parent Leave Act (NPLA) has been repealed, as it is now redundant.
4. Leave Entitlement Due to Active Military Duty
Although the FMLA already required that workers with family members in active duty (or call to active duty) be given protected leave, this wasn’t previously covered by the CFRA. More specifically, if an employee’s domestic partner, spouse, parent, or child entered active duty for the Armed Forces of the United States, that employee would not receive protected leave by the CFRA. However, CFRA now grants this form of protected leave to all applicable California employees.
5. The Elimination of the 10% Exemption Option
Prior to the expansion of the CFRA, CA employers were legally permitted to exempt earners in the top 10% of the organization from receiving CFRA leave, assuming that granting this leave would cause substantial economic damage to their employer. This exemption is no longer in place since the expansion of the CFRA — even the highest-earning employees must be given CFRA leave.
6. Changes to the Concurrent Use of the CFRA and FMLA
In the past, if an employee qualified for leave under both the CFRA and FMLA, their employer reserved the right to require them to use this time concurrently. Thus, the qualifying employee would only have been permitted twelve weeks of unpaid leave, even if they qualified under both laws.
In many instances, due to the amendment of the CFRA, the two laws will no longer function in sync with one another. It is now possible for employees to qualify for an additional twelve weeks of leave under the FMLA, assuming that they are receiving that leave for a different reason.
7. Leave for Pregnancy Disability
If an individual had to take pregnancy disability leave, they would have previously qualified under the FMLA, but not under the CFRA. However, under the CFRA, employees are now permitted a maximum of four months’ leave for pregnancy disability.
Are you looking for more guidance on these key changes to the CFRA as an employer? Or has an employee recently accused you of violating their rights because of a failure to adhere to the CFRA guidelines? In any of these cases, you could greatly benefit from consulting with knowledgeable CA employment attorneys. To schedule a consultation with Fishman, Larsen & Callister, simply fill out the contact form on our website, or give our office a call using the number listed on our contact page.Doug Larsen
Fishman, Larsen & Callister