Question:

I am the Human Resources manager at a company that is required to provide leave to employees under the Family Medical Leave Act and the California Family Rights Act. I heard the California Family Rights Act has been amended. What changes do I need to be aware of?

Answer:

New regulations implementing the California Family Rights Act (CFRA) become effective July 1, 2015. The federal Family Medical Leave Act (FMLA) and CFRA apply to employers who employ 50 or more people (full or part-time), and to the state of California, counties, and other political or civil subdivisions of the state or cities, regardless of how many people they employ.
Currently, CFRA and the FMLA both provide up to 12 weeks of unpaid leave for an eligible employee to take leave for the:

  • Birth of a child for purposes of bonding
  • Placement of a child in the employee’s family for adoption or foster care
  • Serious health condition of the employee’s child, parent or spouse
  • Employee’s own serious health condition

Employees are eligible for leave if they have worked for the employer for at least 12 months and have worked at least 1,250 hours in the 12 months before taking leave.
CFRA leave rights may be expanded to California employers who employ 25 or more employees if SB 406 passes this Legislative session.
Although there are similarities between the FMLA and CFRA regulations, there are still significant differences. The regulations clarify those differences, and align some provisions where CFRA and FMLA are the same. Some of the provisions of the new CFRA regulations include:

  • Registered domestic partners and same-sex partners in marriage are included in the definition of “spouse.”
  • The new California regulations give employers five business days to respond to a request for CFRA leave.
  • Employers cannot require a new medical certification form to support the leave until the first certification has expired.
  • Under CFRA, the employer may contact an employee’s health care provider only to authenticate a medical certification.
  • An employee’s right to maintenance of health benefits under the CFRA is separate from the right to maintenance of health benefits under pregnancy disability leave laws. This means that if an employee takes 4 months of pregnancy disability leave, and then takes 12 weeks CFRA for baby bonding, health benefits must be maintained for the entire 7 months of combined leave. Employees are required to pay their share of premiums to maintain coverage as if the employee had continued to work instead of taking leave.
  • Employees who are receiving disability benefits or paid family leave benefits while on CFRA are not on “unpaid leave.” Employers cannot require those employees to use any accrued paid leave during the CFRA leave, although employees may choose to do so.
  • If an employee takes CFRA leave for the employee’s own serious health condition and remains disabled after 12 weeks, the employer is obligated to engage the employee in the interactive process to determine if additional leave is a reasonable accommodation under the Fair Employment and Housing Act.
  • Employers are required to post a notice explaining CFRA leave rights and include an explanation of CFRA rights in the employee handbook.

Understanding and administering leave in California is challenging. For more information on CFRA leave rights, visit http://www.dfeh.ca.gov/Publications_CFRADefined.htm and to read the new regulations, visit http://www.dfeh.ca.gov/res/docs/FEHC/Final%20Text%20%281%29.pdf