During the pandemic, Governor Newsom signed Senate Bill (SB) 1383 to significantly expand California's family and medical leave law, the California Family Rights Act (CFRA). CFRA is the state counterpart to the federal Family and Medical Leave Act (FMLA), but there are differences between CFRA and FMLA.

Covered Employers and Employees

The most significant change under SB 1383 is that CFRA now covers private employers with just five employees rather than the fifty employees required before the expansion. CFRA continues to apply to public employers regardless of size.

While the FMLA covers employers if their employees work within a certain mile radius of the worksite, there is no such qualification under CFRA. SB 1383 removed the requirement that employees work at a worksite within a 75-mile radius to acquire the benefits of CFRA. That means employees at small worksites and even those working remotely will be eligible for CFRA.

California employees are eligible for CFRA leave if they work for the employer for a minimum of 12 months and have worked at least 1,250 hours within that timeframe.

Reasons for Using CFRA Leave

SB 1383 expands the reasons for which employees can use CFRA leave. An employee was previously only allowed to use CFRA leaves to take care of an employee's parent, spouse, child, or registered domestic partner who had a serious health problem. Eligible employees can now take up to 12 weeks of unpaid leave for any of the following reasons:

• To care of a family member (parent, spouse, child, registered domestic partner, grandparent, grandchild, or sibling) with a serious health condition;
• For the employee's own personal serious illness, other than pregnancy-related disability; an employee of an employer of five or more employees may also be entitled to benefits under the state's Pregnancy Disability Leave law;
• To address qualifying exigencies related to a family member's military deployment; or
• To bond with a newborn or adopted child, or a child placed for foster care.

Under CFRA, "child" includes a child of a domestic partner. Also, SB 1383 removes the requirement that leaves could be used for a dependent child over age 18 only if the child had a disability.

Medical Documentation

An employer may require medical certification if an employee requests CFRA or FMLA leave for the employee's own serious illness or to care for a family member.

Pay and Benefits

FMLA and CFRA leaves are generally unpaid, although employees may use accrued paid sick or vacation leave. Health insurance benefits should continue during FMLA or CFRA leaves.

Posting Requirements

CFRA and FMLA require employers to post specific notices explaining rights under these types of leaves.

Reinstatement Obligation

At the end of a CFRA leave, the employee must be reinstated to the same or comparable position. If the employee is reinstated to a similar position, it must be identical regarding pay, benefits, status, and other conditions.

SB 1383 further aids employee leave rights by removing two limitations from the previous law. First, employers can no longer cap CFRA leave for new child bonding to a combined 12 weeks of leave if both parents are employees of the employer. Second, it removes the "key employee" exception. The exception allowed employers to deny reinstatement if an employee used CFRA leave and was among the highest-paid 10 percent of employees.

Penalties for Failure to Comply With FMLA/CFRA

Failure to comply with employee leave rights under FMLA or CFRA may result in a lawsuit or administrative proceedings. Supervisors may be held personally liable.

Closing Thoughts

Family businesses aim to take care of their employees through challenging personal circumstances. CFRA helps with that goal by requiring all covered businesses to focus on employee leave rights through strong leave policies. Employers should provide training on the requirements under CFRA to managers, HR, and all others responsible for approving and monitoring leaves. Finally, employers should understand the basics of CFRA and how it is different from FMLA. Leaves under the two laws might diverge, and it is vital to track them accurately.

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