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.
