New amendments to the California Family Rights Act (CFRA) have been promulgated with the purpose of more closely aligning the CFRA with the federal Family Medical Leave Act (FMLA) and providing much needed clarification. The new regulations will take effect on July 1, 2015.
The amendments are voluminous, but here is a list of some of the key changes to the CFRA:
- The assigned worksite is deemed the home base for determining if there are 50 employees within a 75-mile radius. The location of the employee’s worksite is important in determining whether he or she is eligible for FMLA or CFRA leave, since he or she must be employed at a worksite with 50 or more employees or within 75 miles of a worksite with at least 50 employees. For employees with no fixed worksite, their worksite is the site: (i) to which they are assigned as their home base, (ii) from which their work is assigned, or (iii) to which they report.
- An employee who was not eligible for CFRA leave at the start of a leave, because the employee had not been employed for at least 12 months, may become eligible for protected CFRA leave while on leave, because leave to which an employee is otherwise entitled counts toward the 12-month service requirement. The employer should designate as CFRA leave that portion in which the employee has met the 12-month requirement.
- The amendments clarify that “joint employer” status is to be determined based on all of the circumstances, including the economic realities of the situation. Where a joint employment relationship exists, the employee should be counted by both employers when determining CFRA eligibility for the employer’s employees.
- Employers must now respond to employees’ CFRA leave requests within five business days rather than 10 calendar days.
- “Key employee” is defined as a salaried employee among the highest 10 percent of the employer’s workforce, similar to the definition under the FMLA. Subject to certain notice requirements, an employer can deny a key employee who takes CFRA leave reinstatement to the same or comparable position if the employer has suffered sustained and grievous economic injury or substantial long-term economic injury.
- Expands protections against interference with protected CFRA rights and retaliation.
- Adds a new affirmative defense situations where an employee fraudulently obtains or uses CFRA leave. Such employees are not entitled to reinstatement or maintenance of health insurance, but the burden on proof is on the employer.
- Updates the required workplace poster, adds a new medical certification form, and removes language from CFRA that permits the use of the Department of Labor’s (“DOL”) sample medical certification form. Employers should, therefore, stop using the DOL certification form and instead use the sample CFRA certification form.
While the amendments bring welcome clarification and alignment with the FMLA, there remain California-specific provisions that are different from FMLA. For example:
- The amendments specify that pregnancy disability is not covered under CFRA, but it is a serious health condition under the FMLA
- Employers are required to maintain an employee’s group health benefits for the duration of an employee’s protected pregnancy disability leave of up to four months, as well as during any subsequent CFRA leave of up to 12 weeks
- Employers are prohibited from asking employees to provide additional information in the certification process, such as symptoms or the underlying diagnosis
- It is impermissible for employers to treat a leave for the employee’s own serious health condition differently than for other CFRA protected leaves
- Employees may be permitted to elect and employers may require employees to use sick leave during an unpaid portion of CFRA leave for the employee’s own serious health condition, as well as to substitute sick leave during CFRA leaves not for the employee’s own serious health condition, and to use vacation or PTO for any unpaid CFRA leave.
What Employers Should Do Now
- Before July 1, 2015, employers should update their leave policies, practices and posted notices, and ensure that supervisors are trained on the new regulations as well as how CFRA, FMLA, and other leaves of absences work together.
- Ensure that leave requests are received by the appropriate person in a timely manner, since the new regulations shorten the time for responding to leave requests.
- Remember that the new notice must be translated into any language that is spoken by at least 10 percent of the workforce. Translations are expected to be made available on the DFEH website.