Question: I heard there is a new leave law that applies to small employers in California.  What is it?

Answer: The existing California Family Rights Act (“CFRA”) family and medical leave law allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for personal illness, illness of a family member, or the birth, foster placement, or adoption of a child.  Recently enacted Senate Bill 1383 (“SB 1383”) expands the provisions of the CFRA and beginning January 1, 2021, the CFRA will require most employers with 5 or more employees to provide eligible employees with unpaid leave.

Prior to January 1, 2021, the CFRA only applied to businesses having 50 or more employees within a 75-mile radius.  The CFRA limited an employee’s ability to request leave in connection with a family member’s serious health condition to instances involving a child, parent, or spouse.  Further, the CFRA only provided a cumulative 12 weeks for both parents to take leave to bond with a child.

Starting January 1, 2021, the expanded CFRA will require all employers with five or more employees to provide family care and medical leave to all eligible employees. Eligible employees must have worked for the employer for more than 12 months, and must have worked a minimum of 1,250 hours during the 12 months prior to the leave.

The expanded CFRA does the following:

  • Allows eligible employees to take up to 12 weeks of unpaid CFRA leave to care for the employee’s parent, child, spouse, grandparent, grandchild, sibling, and registered domestic partner who has a serious health condition.
  • Requires that employers, upon granting the leave request,  guarantee the employee the same or a comparable position upon the termination of the leave.
  • Allows employees to take unpaid leave because of a “qualifying exigency” related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the military.
  • Requires employers to maintain existing health care coverage during CFRA leave.
  • Expands the definition of “child” to include all children, regardless of age or dependency, and children of a domestic partner.
  • Requires an employer who employs both parents of a child to allow each employee up to 12 weeks of unpaid leave during the first year of the child’s birth, adoption, or foster placement.

In 2018 California enacted the New Parent Leave Act (“NPLA”), requiring employers with 20-49 employees to provide eligible employees with leave to bond with a new child.  SB 1383 will repeal the NPLA on January 1, 2021 because the expanded CFRA provides new parent leave.

SB 1383 creates challenges for employers with 50 or more employees that are covered under both the CFRA and the federal Family and Medical Leave Act (“FMLA”).  Because SB 1383 expands the definition of covered family members under CFRA, employees who are covered by the CFRA and the FMLA may be eligible for up to 24 weeks of leave in a 12-month period.  For example, eligible employees may take 12 weeks of CFRA leave to care for their grandparent’s serious health condition, plus another 12 weeks of FMLA leave due to their own serious health condition.

Employers should review the expanded CFRA, revise employee handbooks, create new leave forms and leave tracking protocols, and begin preparing procedures for providing employees leave under the CFRA.