New amendments to the California Family Rights Act (CFRA) Regulations will take effect on July 1, 2015. Details regarding these amendments are below, but, in short, employers will need to:
- revise their policies and practices
- train human resources and supervisors and
- distribute the new CFRA notice in the spoken language of 10 percent or more of the workforce.
Amendments to CFRA
Similar to but exceeding the protections afforded under the federal Family and Medical Act (FMLA), CFRA applies to California employers with 50 or more full or part-time employees. The law provides for up to 12 weeks of workplace family leave for employees who have worked 1,250 hours within the past 12 months within a 75-mile radius of the worksite.
CFRA leave may be taken for the:
- birth of a child for purposes of bonding
- placement of a child in an employee's family for adoption or foster care
- serious health condition of an employee's child, parent, spouse or registered domestic partner, including same-sex partners and
- serious health condition of the employee.
Promulgated by the Fair Employment and Housing Council, Department of Fair Employment and Housing (DFEH), the purpose of the new regulations is to clarify and bring the 1995 regulations up to date, to harmonize California and federal law where possible and to peg CFRA references to the latest FMLA regulations.
The new CFRA Regulations extend over 11 sections. Highlights include alignment of CFRA and FMLA by:
- defining “covered employer” to include successors in interest of a covered employer
- clarifying that “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 or interchange employees, where one employer acts directly or indirectly in the interest of the other, or where there is common control over the employee
- using the assigned worksite as the home base for determining if there are 50 employees within a 75-mile radius, important where the employee has no fixed worksite or more than one worksite in a joint employment situation
- excluding employment periods prior to a break in service of seven years of more, except for military service or by written agreement, to calculate whether the employee worked for at least 12 months to be eligible for CFRA leave
- allowing an employee who has met the 1,250 hour requirement but not the 12-month requirement when CFRA leave starts to nonetheless meet the 12-month requirement while on leave, designating as CFRA leave that portion in which the employee has met the 12-month requirement
- clarifying that employers have “five business days” to respond to employees’ CFRA leave requests
- adding “key employee” to mean 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
- permitting employers to “refuse to reinstate” key employees following leave because of sustained and grievous economic injury or substantial long-term economic injury to the employer, providing that certain conditions are met
- amending intermittent leave and reduced schedule provisions, regarding overtime, holidays and methods of calculating leave entitlement
- updating the consequences of an employee’s failure to respond to employer inquiries regarding the leave request or return a required medical certification and
- excluding any employee who fraudulently obtains or uses CFRA leave from job restoration or maintenance of health insurance, with the burden of proof by the employer.
However, employers should be mindful of amendments that govern the California-specific provisions and are different from FMLA, such as:
- specifying that pregnancy disability is not covered under CFRA, but it is a serious health condition under the FMLA
- requiring employers to maintain an employee’s group health benefits for the entire time an employee is on unpaid, protected pregnancy disability leave of up to four months, as well as a subsequent CFRA leave of up to 12 weeks
- prohibiting employers from contacting the employee’s healthcare provider for any reason other than to authenticate a medical certification
- requiring employers to have a “good faith, objective reason” to doubt the validity of a medical certification in order to seek a second opinion, limiting the second opinions to the employee’s own serious health condition
- barring employers from asking employees to provide additional information in the certification process, such as symptoms or the underlying diagnosis
- differentiating between leave for the employee’s own serious health condition and for other reasons
- permitting the employee to elect or employer to require employee to use sick leave during an unpaid portion of CFRA leave for the employee’s own serious health condition, to substitute sick leave during CFRA leaves not for the employee’s own serious health condition, and to use vacation or PTO for any unpaid CFRA leave
- clarifying that an employee receiving Paid Family Leave (PFL) benefits is not on unpaid leave; thus, the employer cannot require substitution of accrued paid time off during PFL portion of a CFRA leave
- requiring covered employers to provide notice to their employees of the right to request CFRA leave under the California Family Rights Act by posting in conspicuous places where employees tend to congregate or by electronic posting
- mandating that if the employer publishes an employee handbook that describes other kinds of personal or disability leaves available to its employees, that the employer 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 notice
- requiring that 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 the employer must translate the CFRA notice in every language that is spoken by at least 10 percent of that workforce and
- specifying that employers may utilize the a new Certification of Health Care Provider form developed by the Council or its equivalent.
Given all the new CFRA regulatory provisions, employers should update notices, policies and procedures, handbooks, forms and ensure that supervisors are trained. The new CFRA Regulations, notice and certification forms can be viewed here.
Mindful of the potential expense for translating and the potential liability for mistranslating the required CFRA notice, the DFEH had committed to translating the notice into the most commonly spoken languages in California.