Senate Bill 1383 (“SB 1383”), signed by the Governor on September 17, 2020, expands the CFRA to all employers with five or more employees. SB 1383 makes it an unlawful employment practice for any employer, with five or more employees, among other things, to deny or refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, parent-in-law, spouse or domestic partner with a serious health condition.
There is much more to this bill, but first a little history into two of California’s leave laws. The state’s California Family Rights Act, passed in 1993 and modeled after the federal Family Medical Leave Act (“FMLA”), provides 12 workweeks of unpaid leave during any 12-month period to bond with a new child of the employee, or for the employee to care for themselves, a child under age 18 (or a child over the age of 18 who is incapable of self-care), a parent, or a spouse with a serious health condition. CFRA currently entitles employees to 12-weeks of leave for employees who work for a covered employer at a jobsite with 50 or more employees in a 75-mile radius and provides job reinstatement rights and continuation of health benefits for employees who have at least 1,250 hours of service during the prior 12-month period. Then in 2017, California passed the New Parent Leave Act which provided unpaid job protected time to an employee to bond with a new child if the employee worked at a jobsite with 20 or more employees in a 75-mile radius. Going forward, CFRA is going to touch far more employers in the state of California, so please keep reading for the additional changes to California leave laws.
With the passing of SB 1383 all employers with five or more employees need to pay close attention to these changes. Here is a quick overview of the changes effective January 1, 2021:
- CFRA now applies to employers with five or more employees in any state(s), and includes part-time employees (the “50 employees within 75 miles” requirement has been eliminated);
- Employees need not all work at the same location;
- The New Parent Leave Act has been repealed (really, why is it necessary anymore?);
- Expanded definition of family member to also include grandparent, grandchild, parent-in-law and siblings;
- The definition of “child” no longer means a child under 18 years of age (or those over the age of 18 who are incapable of self-care). The child can be any age;
- Eliminates the exception that key employees (those within the top 10% of earners in the location or within 75 miles) need not be reinstated;
- Eliminated the exception that employers must provide both parents (not just spouses – no need for the parents to be married) of a new child bonding time to share if the parents work for the same employer; and
- Expands qualifying reasons for leave to include qualifying exigencies due to a family member being called to active duty.
Here are the basics:
Employees who work for a covered employer with five or more employees will be eligible for 12 workweeks of unpaid job protected time in a 12-month period. (The 12-month measurement can be a rolling 12 months looking backwards, looking forward, a designated 12-month period or a calendar year period.) Employees are eligible if they have worked for a covered employer for 12 months and have worked 1250 hours in the prior 12-month period prior to the leave commencement. Employees may take leave to bond with a new child, or to care for themselves, or a family member which includes; parents, children, spouses, registered domestic partners, parents-in-law, grandparents, grandchildren and siblings with a serious health condition and for qualifying exigencies related to U.S. Armed Forces service.
Large Employers Take Note:
One area of concern due to SB 1383 for employers with 50 or more employees is that large employers are covered under both CFRA and FMLA historically, and CFRA and FMLA would run concurrently when an employee needed time off for a covered reason. However, with the expansion of family members under CFRA the two laws are no longer completely in sync. Situations could arise where an employee will use 12 weeks of unpaid job protected time under CFRA (think serious health condition of a grandparent or other newly eligible family member), but still remains eligible to take an additional 12 weeks of unpaid job protected time under FMLA.
Mediation Pilot Program – Small Employers:
Employers with between five and 19 employees should also read the pilot mediation program for small employers in the AB 1867 summary within this update. The pilot mediation program allows small employers to request mediation through the DFEH if a complaint is received.
ACTIONS RECOMMENDED: In 2021 it will be important for our employer/clients of all sizes to call their HR Consultant when an employee requests a leave of absence.
Employers with five or more employees will need to update their Employee Handbook to include a CFRA and/or FMLA policy that complies with SB 1383 by January 1, 2021. Employers should ensure that managers, supervisors and human resources employees are trained on how to implement this new policy and how to respond to requests for leaves of absence. Silvers HR will create a compliant policy and documents to assist with leave administration for our retained clients.
A copy of SB 1383 is at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB1383