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  • September 2020

The Vita Blog September 2020

  1. California Expands Family and Medical Leave Entitlements

    System Administrator – Wed, 23 Sep 2020 23:01:10 GMT – 0

    In what is being called a landmark and often controversial bill, California Governor Gavin Newsom signed SB 1383 on September 17, 2020. The bill greatly expands employee job protected leave under the California Family Rights Act and New Parent Leave Act.

    The new law requires California employers with as few as five employees to provide family and medical leave to their employees. The definition of eligible “family members” for whom employees can take leave and the protected reasons for taking leave were also significantly expanded.

    Prior Law Baseline

    The California Family Rights Act (CFRA), which is modeled after the federal Family Medical Leave Act (FMLA), requires employers with 50 or more employees to allow employees with at least 1,250 hours of service during the previous 12-month period to take a leave to care for a family member. Eligible leaves include for bonding with a new child of the employee or to care for themselves, a child, a parent, or a spouse. Employers are required to grant up to 12 workweeks of unpaid protected leave during any 12-month period. Employers may refuse to grant the request if the employer employs fewer than 50 employees within 75 miles of the worksite where the employee is employed.

    Similarly, the New Parent Leave Act (NPLA) requires employers to allow employees to bond with a new child. Employees may take up to 12 workweeks of unpaid protected leave during any 12-month period. Eligibility requirements include at least 12 months of service, at least 1,250 hours of service during the previous 12-month period and the employee must work at a worksite in which the employer employs at least 20 employees within 75 miles.

    Basic Leave Requirements

    Employers must provide eligible employees with up to 12 workweeks of unpaid protected leave during any 12-month period. Employees are required to have at least 1,250 hours of service with the employer during the previous 12-month period to be eligible for job protected leave.

    Small Employers (5-49) Must Comply

    The new law expands family leave requirements to employers with five or more employees. Previously only employers with 50 or more employees were required to comply.

    75-Mile Radius Provision Eliminated

    The new law eliminates the location/size restrictions of the prior laws. Under the prior law, employers were not required to provide leave under CFRA, if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under NPLA, if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.

    Health Insurance Must Be Maintained

    Employers must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave. Coverage must be maintained on the same basis as it would have been if the employee had continued in employment for the duration of the leave.

    Covered Family Member Definition Expanded

    Under the previous law, eligible employees could take unpaid leave to care for a “family member” with a serious health condition. “Family member” included a minor child, a spouse, or a parent.

    The new law significantly expands the definition of “family member.” Now family member includes the employee’s children, spouse, parents, siblings, grandparents, grandchildren, and domestic partners. In addition, the definition of “child” now includes all adult children, whether or not they are dependent, and the children of a domestic partner.

    Both Parents Can Take Leave

    Under the current law, an employer that employs both parents need only grant 12 weeks of total leave to both employees (combined) in connection with the birth, adoption, or foster care placement of a child. The new law now requires the employer to grant 12 weeks of leave to each parent for such leave to care for a child.

    Employment Guarantee Required

    The law also requires that family and medical leave requested by an employee is not deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon termination of the leave. This is a new compliance step that will be important for employers to incorporate.

    Key Employees Also Protected

    The law does not allow an employer to refuse reinstatement of “key employees” (the highest paid 10%) following a protected leave of absence. This practice was previously permitted under the CFRA.

    Potential Double Leave

    The expansion of the definition of family member creates a situation where employees could potentially take 12 weeks of FMLA leave plus an additional 12 weeks of CFRA leave. (This obviously only applies for 50+ employers who are subject to FMLA.) Generally, leaves under FMLA and CFRA run concurrently, however, the now-non-mirrored definitions of family member create a situation where an employee could exhaust an FMLA leave for themselves or for an FMLA-eligible family member and then request leave under CFRA to care for one of the new classes of eligible family members. This would effectively require employers to provide 24 weeks of protected leave to the employee with continued health insurance benefits and a guaranteed right of reinstatement.

    Effective Date

    The requirements of the new law are effective as of January 1, 2021.

    Action Item

    Small Employers: Small employers with 5-49 employees are newly subject and thus should review and update their leave policies and procedures to reflect the new protected leave requirements

    Large Employers: Employers with 50+ employees who were previously subject to the CFRA should update their leave policies to include the new definition of “family member” and other new provisions of the law.

    • Compliance
  2. Revised Rules for COVID-19 Paid Sick and Family Leave

    System Administrator – Fri, 18 Sep 2020 22:29:10 GMT – 0

    A recent court order invalidated several sections of the Department of Labor (DOL) temporary regulations of the Families First Coronavirus Response Act (FFCRA). In response, revised regulations and FAQs have been issued which make several important changes clarifying workers’ rights and employers’ responsibilities under the paid sick and family leave rules.

    Effective Date

    The revised regulations are effective September 16, 2020 and are set to expire along with the FFCRA’s paid leave provisions on December 31, 2020.

    Work Availability Requirement

    The regulations clarify the requirement that an employee may only take FFCRA leave if an employer has work for the employee, but the employee cannot work due to a COVID-19-related qualifying reason. If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave (for example, the employer has temporarily or permanently closed the worksite or has had a reduction in force), the employee “would have no work from which to take leave.”

    Employer Approval of Intermittent Leave

    An employee must obtain employer approval for intermittent FFCRA leave in order to avoid unduly disrupting the employer’s operations. This requirement was affirmed; however, the new regulations also outline the difference between intermittent leave and separate, consecutive requests for leave. Intermittent leave is taken in separate blocks, but is due to a single qualifying reason. Separate, consecutive requests for leave occurs when leave (on non-consecutive days) is taken due to separate qualifying reasons. This is best illustrated in the example provided in the guidance: An employee requesting leave to care for a child whose school is closed on alternate days would not be considered intermittent leave (which would require employer approval). The reasoning outlines that each day of school closure constitutes a separate reason for FFCRA leave that ends when the school re-opens again on the next day.

    Definition of Healthcare Provider

    The definition of “healthcare provider” for purposes of identifying employees who may be denied FFCRA leave was revised. The new definition includes employees who provide diagnostic, preventive, or treatment services, or services that are integrated with and necessary to providing patient care which, if not provided, would adversely impact patient care. The definition excludes information technology professionals, maintenance staff, human resources personnel, cooks and food service workers, records managers, consultants, and billing personnel that may work at a healthcare facility.

    Notice and Documentation Requirements

    Employees need not give notice or provide required documentation prior to taking FFCRA leave, but rather as soon as practicable. However, if the need for leave is foreseeable, in most cases, it is reasonable to require employees to provide notice (and accompanying documentation) prior to taking leave.

    • Compliance
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