Seyfarth Synopsis: In 2020, California enacted SB 1383 which, as of January 1, 2021, amended Government Code section 12945.2 to expand the California Family Rights Act (“CFRA”). These changes will require employers who have been subject to the CFRA to ensure their policies are up to date, as well as bringing new employers into the family of businesses who must comply with the CFRA’s requirements.
Will my company now be subject to the CFRA?
The biggest change is the expansion of the CFRA’s coverage to a new class of employers. Before, the CFRA applied only to companies with 50 or more employees (20 for bonding leave only) within 75 miles of a California worksite. Now, as of 2021, the mileage threshold is gone, and any company with five employees anywhere in the U.S. (even if just one person in California) must provide 12 weeks of family leave to California employees. So Pritchett’s Closets & Blinds now (maybe for the first time) will need a written CFRA policy, and will need to provide CFRA leave to qualifying employees.
When do I need to provide CFRA leave?
First, for those of you who, like Jay Pritchett, may be new to the CFRA family—or may just need a reminder—the CFRA requires covered employers to provide 12 weeks of unpaid protected leave to employees who have at least 1250 hours of service in the 12 months prior to the leave.
This eligibility requirement didn’t change for 2021, but the qualifying reasons that open the door to CFRA leave have expanded. Employees now will be eligible to take a leave of absence to care for grandparents, grandchildren, siblings, and domestic partners with a serious health condition (in addition to existing leave to care for a parent or spouse). And while employees once could take leave to care for children only if they were disabled and/or under age 18, there is no longer an age limit or a disability requirement. One likely consequence of this expansion will be employees taking leave to care for adult children who have given birth—which would have meant Claire could have taken protected time off to help Haley recover from having the twins!
And the expansion does not stop there. Qualifying employees now can also take leave due to a qualifying exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the US Armed forces, for things such as a need to secure alternative childcare, attend military ceremonies, or meet with family support programs.
These expansions create an ever larger potential for employees to stack CFRA leave with FMLA leave where the leave is for different uncovered reasons. For instance, now, if Luke had taken time off of work to care for his ailing Grandpa Frank under CFRA, he would potentially still be eligible for FMLA leave later in the year if he personally had a serious health condition.
What about those exceptions to CFRA coverage?
As of January 1st, two exceptions to CFRA leave have been eliminated. First, where both parents of a new child work for the same company, employers can no longer limit the amount of leave taken by both parents to a combined total of 12 weeks—employers now must separately provide 12 weeks to each employee.
Second, employers no longer can refuse to grant CFRA leave under the “key employee” exception, which allowed employers to opt out of providing the leave to salaried employees who are among the highest paid 10 percent of the company’s employees. So, Jay and Claire now would both be eligible for leave from Pritchett’s!
The expansion of the California Family Rights Act brings the vast majority of businesses with California operations into the modern CFRA family. And this expansion will require those who have been complying with CFRA to make sure they stay up to date with the new reasons for leave. But remember, CFRA has a mandatory written policy requirement, so all covered employers need to ensure they have an up-to-date CFRA policy in the employee handbook.