On March 4, 2015, the California Fair Employment and Housing Council approved updates to the California Family Rights Act (CFRA) regulations. These updates, which took effect on July 1, 2015, clarify certain CFRA provisions and align the CFRA more closely with the federal Family and Medical Leave Act (FMLA), although important differences still remain between the two laws, both of which apply to employers with 50 or more employees.  The following is an overview of the updates.

Aligning CFRA and the FMLA

To a certain extent, the updated CFRA regulations harmonize employers’ responsibilities under CFRA and the FMLA. They do so by incorporating the March 2013 FMLA regulations to the extent those rules are not inconsistent with the CFRA. The CFRA regulations now more closely track the FMLA rules due to updates to a number of provisions.

Covered Employer

The definition of “covered employer” now includes guidance on joint-employer situations.

Eligible Employee

The definition of “eligible employee” clarifies the 12-month length of service requirement, provides guidance on how to determine whether an employer has at least 50 employees within a 75-mile radius of an employee who does not have a fixed worksite, and establishes eligibility criteria for employees who have not met the 12-month service requirement prior to taking leave.

Spouse

The definition of “spouse,” clarifies that same-sex spouses are covered under CFRA.

Reinstatement

CFRA’s reinstatement provisions have been amended to include an expanded reinstatement guarantee, permissible defenses to a refusal to reinstate, and new rules on “key employees”.

An employer is now required to reinstate an employee returning from CFRA leave even if his or her position was replaced or restructured to accommodate the leave. If an employee is no longer qualified for the position upon returning from leave, the employee must be given a reasonable opportunity to fulfill the position’s qualification requirements.

“Key employees” may be denied reinstatement if they are salaried, among the top 10 percent in compensation, and the reinstatement would cause “substantial and grievous” economic injury to the company. To assert this defense, the employer must give notice of its intent to deny reinstatement in writing at the time the employee gives notice of his or her need for CFRA leave.

Responses to Leave Requests

The revised CFRA regulations allow employers five days to respond to CFRA leave requests. The amendments have also revised the process of and making retroactive designations.

Intermittent Leave / Reduced Schedules

The newly amended regulations have also made changes to the intermittent leave and reduced schedule provisions particularly with respect to overtime, holidays, and calculating leave entitlements.

Failure to Respond to a Leave Request

The new regulations change the consequences of an employee’s failure to respond to an employer’s inquiries regarding a leave request, an employee’s failure to return a required medical certification, and fraudulently obtaining CFRA leave.

Key Differences Between CFRA and the FMLA Remain

Despite the amendments to the CFRA regulations, there are a number of areas in which CFRA administration notably continues to differ from the FMLA’s requirements. The following are some of these areas:

Fraudulently-Obtained CFRA Leave

Under the amendments to the CFRA regulations, the employer bears the burden of demonstrating that an employee fraudulently obtained or used CFRA leave. This amendment should not impact existing law, which provides that an employer may defend its discharge of an employee if it has an “honest belief” that the employee violated its CFRA policy.

Expanded Interference/Retaliation Provisions

Any violation of CFRA constitutes interference or retaliation. The amendments to CFRA provide specific examples of interference, including:

• transferring employees from one worksite to another to keep worksites below the 50-employee threshold,
• changing essential functions to preclude an employee from taking leave,
• reducing an employee’s hours to preclude their eligibility, and
• discharging an employee when the employer anticipates that he or she will experience  a CFRA-qualifying event in the future

Interactive Process

The amendments to CFRA regulations codify an employer’s obligation to engage in the interactive process if an employee cannot return to work at the expiration of CFRA leave. As a result, the new CFRA regulations mirror the California disability regulations, which also state that an employee’s inability to return to work after leave expires triggers  the interactive process.

Calculation of 12-Month Period

Under CFRA an employer may select rolling or calendar years to measure the 12-month period of required employment for eligibility.  However, the employer must apply the method consistently and provide 60-days’ notice to employees of which  method it is using. An employer that does not select a method of measurement must use the method that provides the most beneficial outcome to the employee.

Pregnancy Disability

Pregnancy disability is not covered under CFRA even though it is a serious health condition under the FMLA. The new CFRA regulations clarify, consistent with recently updated pregnancy disability leave regulations, that an employer must maintain an employee’s group health benefits for the entire time an employee is on pregnancy disability leave (up to 4 months) and for the employee’s subsequent CFRA leave (12 weeks).

Medical Certifications

The FMLA regulations permit an employer—specifically a human resources professional, leave administrator, management official, or health care provider—to contact the employee’s health care provider to clarify or authenticate a medical certification. In contrast, the CFRA regulations have been amended to specify that an employer may not contact a health care provider for any reason other than to authenticate a medical certification.

Also, the standard for seeking second opinions differs under the FMLA and CFRA. The FMLA permits an employer to seek a second opinion when it has “reason to doubt” the validity of a medical certification. The amended CFRA rules, on the other hand, state that an employer must have a “good faith, objective reason” to doubt the validity of a medical certification in order to seek a second opinion, and employers continue to be barred from seeking second opinions unless the certification involves the employee’s own serious health condition.  The CFRA rules also continue to prohibit employers from asking employees to provide additional information, such as symptoms or the underlying diagnosis, in the certification process.

Finally, the new regulations provide for a new form for requesting medical certifications.

Substituting Paid Leave

The FMLA rules generally permit an employee to substitute accrued paid leave during an otherwise unpaid FMLA leave.  They also permit employers to require employees to substitute accrued paid leave for unpaid FMLA leave. The CFRA rules, however, differentiate between leave for an employee’s own serious health condition and leave taken for other reasons. Employees may elect or employers may require employees to use sick leave during an unpaid portion of CFRA leave for an employee’s own serious health condition, and employers and employees may agree to substitute sick leave during other CFRA leaves. Employees may elect or employers may require employees to use accrued vacation time or paid time off (PTO) for any unpaid CFRA leave. The new rules also clarify that employees receiving Paid Family Leave (PFL) benefits are not on unpaid leave, so an employer may not require substitution of accrued paid time off during any portion of CFRA leave for which she is receiving PFL benefits.

The new CFRA regulations also make a number of other important modifications, including updates to the required workplace poster and a new medical certification form (as noted above in the Medical Certifications section), as well as changes consistent with recent case law.

Practical Impact on Employers

In light of the amendments, employers should consider the following next steps

• updating their policies, handbooks, and procedures to address the new changes.;
• training human resources personnel, supervisors, and line managers on the new regulations, including how to recognize and report potential CFRA notices from their reports, the importance of non-retaliation, and the expanded reinstatement guarantee;
• implement the new CFRA certification form; and
• distributing the new CFRA notice in the language spoken by 10 percent or more of the workforce.