On September 17, 2020, Governor Newsom signed Senate Bill 1383 (“SB 1383”), which significantly expands CFRA family and medical leave rights for employees. It goes into effect on January 1, 2021.
CFRA Leave Now Applies to Employers with Five or More Employees
SB 1383 expands the California Family Rights Act (“CFRA”) and the New Parent Leave Act (“NPLA”) to now apply to private smaller employers not covered before. It requires employers with at least five employees to provide an eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. Previously the CFRA applied only to private employers with 50 or more employees within 75 miles of the worksite (and public employers of any size). The employer must pay and maintain the employee’s health coverage under a group plan for the duration of the leave at the level and under the conditions the coverage would have been provided if the employee had continued employment.
Additional Covered Family Members and Expanded Reasons for Leave
SB 1383 significantly expands the definition of “family members” and potential reasons for which an eligible employee may take leave.
Under SB 1383, eligible employees may take leave to bond with a new child of the employee or to care for an expanded list of family members now including siblings, grandparents, grandchildren, and domestic partners. The definition of “child” is expanded to cover all adult children (regardless of whether they are dependent) and children of a domestic partner.
SB 1383 also now requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee in connection with the birth, adoption or foster care placement of a child. (Previously, the employer only had to grant both employees a combined total of 12 weeks of leave).
The new law also now requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
Lastly, SB 1383 does not permit an employer to refuse reinstatement of “key employees” as was previously allowed by the CFRA under qualifying circumstances.
The New Law Creates Potential for Employees to “Stack” Leave with the Federal FMLA
SB 1383 creates a unique situation for employers that have 50 or more employees and are therefore covered under both the CFRA and the FMLA. Leave under the CFRA and FMLA generally runs concurrently, making the employee only eligible for a total of 12 weeks of unpaid leave under both laws.
However, because SB 1383 now expands the definition of “family member” under the CFRA, making the definition of family member different from the definition under the federal FMLA, the two laws are no longer in sync. This creates a potential situation in which an employee is eligible for 12 weeks of leave under the CFRA and could remain eligible for a full additional 12 weeks under the FMLA. This could leave the employer faced with providing up to 24 weeks of leave.
Under SB 1383, employees will still need to meet eligibility requirements, including 12 months of service and 1,250 hours worked for the employer in the previous 12-month period, to qualify for family and medical leave.
Call Hill Farrer for Further Questions
Please contact your Hill Farrer attorney or any member of our Labor and Employment department for additional information about this new law. We can also assist with revising your employee handbooks and leave policies to comply with this new law.