New CFRA Amendments Take Effect July 1

by Nossaman LLP
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On July 1, 2015, as previously reported, new California Family Rights Act ("CFRA") regulations will take effect.   These amended regulations clarify areas of confusion and bring the CFRA into closer alignment with its federal counterpart, the Family and Medical Leave Act ("FMLA"). 

Below is an overview of many of the important provisions in the revised regulations.  The full text of the amended regulations is available here

Highlights of the Amended CFRA Regulations:

  • Employers have 5 business days to respond to CFRA leave requests, which is consistent with the FMLA deadline.  (2 C.C.R. 11091(a)(6).)  Previously, CFRA provided employers with 10 calendar days to respond.
  • ]The definition of "spouse" is expanded to include registered domestic partners and same-sex marriages. (2 C.C.R. 11087(r).)
  • Recertification of Serious Health Condition:  The old and new CFRA regulations provide that an employer may only seek recertification of a serious health condition upon the expiration of the first certification.  (2 C.C.R. 11091(b).)  Thus, under the amended CFRA regulations, California employers still cannot request a medical recertification from an employee who has a certification for a "lifetime" condition.  This is different from the FMLA regulations, which allow an employer to seek recertification of a serious health condition every 6 months. 
  • "Serious Health Condition" must involve either inpatient care or continuing treatment – not both.  "Inpatient care" is now defined as either an overnight stay or an admission with the expectation of overnight stay.  (2 C.C.R. 11087(q).)  FMLA regulations still require an overnight stay.  Substance abuse is also explicitly identified in the CFRA amendments as a serious health condition.
  • A new CFRA-specific Certification form is provided.  (2 C.C.R. 11097).  This form clearly states that disclosure of the diagnosis is not permitted without the patient's consent, in contrast to FMLA, and also addresses new definitions for "serious health condition" and provides more options for intermittent or reduced schedule leaves.
  • The CFRA regulations now provide that an employer may only require a second medical opinion if the employer has a "good faith, objective" reason to doubt the certification's validity.  (2 C.C. R.  11091 (b)(2)(A).)
  • The amendments clarify that "unable to perform the function of his or her position" means that an employee is unable to perform any one or more of the essential functions of his or her position.  (2 C.C.R. 11087(a) and (l); 11090(e).)  Adding the word "essential" conforms with California's Fair Employment and Housing Act ("FEHA," Cal. Gov. Code 12900 et seq.).
  • For an employee who takes a pregnancy disability leave in addition to CFRA leave, the 1,250 hour "look back" to assess CFRA eligibility begins immediately prior to the first day of pregnancy disability leave – not the first day of subsequent CFRA leave for reason of the birth of the employee's child.  (2 C.C.R. 11087(e)(3).)  Recall that to be eligible for CFRA leave an employee must work for at least 1,250 hours during the 12-month period immediately prior to the date of CFRA leave.  (2 C.C.R. 11087(e).) 
  • A new provision specifically states that if an employee is not eligible for CFRA leave at the start of leave because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet the 12-month requirement while on leave.  (2 C.C.R. 11087(e)(5).)  For example, an employee may begin a leave by using accrued sick leave; this sick leave time would count toward the 12-month length of service requirement (but not the 1,250-hour requirement) and the employee may subsequently become eligible for CFRA leave.
  • The amendments clarify, consistent with pregnancy disability leave regulations, that an employer must maintain an employee's health benefits for the entire time the employee is on pregnancy disability leave and subsequent CFRA leave.  (2 C.C.R. 11092(c).) 
  • An employer who employs at least 50 part-time or full-time persons is covered by CFRA.  (2 C.C.R. 11087(d).)  The amended regulations add a new joint employment test – the "economic realities test" – for determining whether a business must count the employees in question.  Id.  Under the "economic realities test," no single factor is determinative of whether or not a joint employment relationship exists; rather, the entire relationship is to be viewed in its totality based on the economic realities of the situation.  Id.  *Note that SB 406 is currently pending, and would narrow the CFRA small business exemption, making CFRA applicable to businesses that employ only 25 or more persons.
  • The amendments expand the guarantee of reinstatement, clarifying that an employee is entitled to the same (original) position the employee held before CFRA leave or to a comparable position, which is defined as one that is "virtually identical" in terms of pay benefits and working conditions, including privileges, perks, and status.  (2 C.C.R. 11087(f) and (g); 11089(a).)  The amendments clarify that an employee is entitled to reinstatement even if the position has been restructured to accommodate the employee's absence.  Id.
  • An employer cannot require an employee to use accrued vacation time, PTO, or sick pay if the employee is receiving any wage replacement (e.g., SDI, Paid Family Leave).  (2 C.C.R. 11092(b).)
  • Of particular interest to the public sector, the amendments add a provision specifying that "CFRA leave shall not constitute a break in service or cause the employee to lose seniority, even if other paid or unpaid leave constitutes a break in service for purposes of establishing longevity or seniority, or for layoff, recall, promotion, job assignment, or seniority-related benefits."  (2 C.C.R. 11092(e).)

Employers, take this opportunity to revisit and update your leave administration policies and procedures.  In addition, update your posted notices (see 2 C.C.R. 11095(d)).  We also suggest you train your managers and supervisors in light of the new leave laws, including the new Paid Sick Leave Law which also takes effect on July 1.  

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