CALIFORNIA DOES IT AGAIN: WHAT IS SENATE BILL 1383 AND HOW WILL IT IMPACT YOUR BUSINESS STARTING JANUARY 1, 2021?
What Is The CFRA?
Under existing law, the California Family Rights Act (“CFRA”) (California’s equivalent of the federal Family Medical Leave Act or “FMLA”) applies to public employers of any size and private employers with 50 or more employees within 75 miles of the worksite. The CFRA authorizes eligible employees who have worked at least 1,250 hours in the previous 12-month period, to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child (under 18 years of age or an adult dependent child), a parent, or spouse, with a serious health condition.
The CFRA defines a “serious health condition” as an illness, injury, impairment or physical or mental condition that causes or requires: (1) any period of incapacity or treatment in connection with, or after inpatient care; or, (2) any period of incapacity requiring absence from work, school, or regular daily activities, of more than 3 consecutive calendar days; or, (3) ongoing treatment by or under the supervision of a health care provider for a chronic or long-term health condition that is incurable; or, (4) restorative dental or plastic surgery after an accident or injury.
Covered employers are required to maintain and pay for the employee’s group health plan coverage for the duration of the employee’s leave (maximum of 12 workweeks) in the same manner as if the employee had continued in employment continuously for the duration of the leave.
The Expansion of CFRA To Employers With Five Or More Employees
SB 1383 signed into law by Governor Gavin Newsom on September 17, 2020, expands the CFRA to private employers of five or more employees and eliminates the requirement that employees work within 75 miles of the worksite.
Thus, small employers with five or more employees are now required to provide up to 12 workweeks of unpaid job protected leave during any 12-month period for various covered reasons.
The new law goes into effect January 1, 2021.
Further Expansions Impacting Small and Large Employers
SB 1383 expands the definition of family members to include an employee’s siblings, grandparents, grandchildren, and domestic partners. “Child” is further expanded to include all adult children, regardless of whether they are dependent, and children of a domestic partner.
Under existing law, if both parents of a child are employed by the same employer, the employer is not required to provide both employees more than a combined total of 12 workweeks of unpaid protected leave during the 12-month period. However, SB 1383 requires employers who employ both parents of a child to grant separate leave of 12 workweeks to each employee.
Additionally, SB 1383 repeals the New Parent Leave Act (“NPLA”) which allowed for an employee (who worked 1,250 hours during the previous 12-month period) to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child, for any entity employing at least 20 employees within 75 miles. Thus, now under the new law, employers with five or more employees are required to provide 12 workweeks of unpaid protected leave during any 12-month period for “baby bonding” leave.
Further, SB 1383 no longer permits an employer to refuse reinstatement to salaried employees who are among the highest paid ten percent of the entity’s employees or where the refusal is necessary to prevent substantial and grievous economic injury.
Under SB 1383, employees still need to meet eligibility requirements, which includes 12-months of service and 1,250 hours worked for the employer in the previous 12-month period to qualify for the leave.
Interplay of CFRA and FMLA For Employers With 50 or More Employees
Under existing law, employers with fifty or more employees are subject to both CFRA and the FMLA. As leave under CFRA and FMLA runs concurrently, employees were eligible for a total of 12 unpaid workweeks under both laws. However, given SB 1383’s creation of differing definitions of “family members” under the CFRA (child, spouse, parent, siblings, grandparents, grandchildren, and domestic partners) and FMLA (child, spouse or parent), employees will be eligible to take leave for a combined total of 24 weeks. For example, an employee may take 12 weeks under the CFRA to care for a sick grandchild with a serious health condition and another 12 weeks to care for a sick spouse with a serious health condition under the FMLA.
Small Employer Family Leave Mediation Program For Employers With 5-19 Employees
On September 9, 2020, Governor Newsom signed Assembly Bill 1867, which among other things, establishes a new mediation pilot program for those employers who have between 5 and 19 employees. Under the new mediation pilot program for small employers, if the employer receives a Right to Sue letter from the California Department of Fair Employment and Housing (“DFEH”) regarding a claim under SB 1383’s new CFRA, the employer can request a mediation through the DFEH within 30 days of receipt of the letter. Once the request is made, the employee is prohibited from filing a claim in civil court until the mediation is completed. There is no requirement that the parties resolve the employee’s claim in mediation. The mediation pilot program offered by the DFEH remains in effect until January 1, 2024.
Given the immediate impact that SB 1383 will have on small and large employers across California come January 1, 2021, employers should immediately consult with California’s O’Hagan Meyer Employment Practice Group’s attorneys for additional information and to draft or update company leave policies, procedures, and Employee Handbooks.
Authored by: Gouya A. Ranekouhi, Esq.