New guidance on how to comply with the California Family Rights Act (CFRA) is nigh. 

On January 13, 2015, the California Fair Employment & Housing Council approved revised regulations interpreting the CFRA, attached here. Procedurally, the regulations now go to the Office of Administrative Law (OAL) for additional consideration and eventual approval. We have it on good authority that the text of these proposed regulations will not change unless the OAL requires changes; however, given the vagaries of the process, we are not expecting the final revised CFRA regulations to be promulgated until about July 2015.

As most readers know, the CFRA is the California analog to the federal Family & Medical Leave Act (FMLA). While the CFRA and the FMLA are consistent to a large degree, there are some important differences. Significantly, the revised CFRA regulations, as proposed, would:  

  • interpret the CFRA more consistently with the FMLA (for example, with respect to retroactive designation of CFRA leave after the employee has returned to work),
  • clarify employer and employee rights and responsibilities (for example, prohibiting employers from contacting health care providers except to authenticate a medical certification), and
  • prescribe a new medical certification form that should help employers who would otherwise be tempted to use the DOL’s form for FMLA leaves. Using the DOL form is not a good idea in California because it requests “medical facts,” including diagnosis. That kind of request is generally impermissible in California given our constitutional right to privacy. 

Helpfully, the proposed changes to the CFRA regulations are called out in the attached in underscore, strike-through, italics and boldface

Workplace Solution:  Although these new regulations are still just proposed, the wise employer will become familiar with them now to avoid any surprises when they (or a closely similar version) are finally adopted later this year.

Next week:  We expect the United States Supreme Court to soon decide whether to grant certiorari in the Iskanian case. If you are following the issue of mandatory arbitration of PAGA claims, stay tuned to this space for further developments.