Governor Newsome signed bill SB1383 on September 17, 2020, that radically changes California Family Rights Act (CFRA) leave benefits. These changes go into effect January 1, 2021.

Change 1: Employers

Employers with 5 employees or more will now be obligated to provide eligible employees with up to 12 workweeks of unpaid leave to care for eligible family members and medical leave for employee’s own serious health condition in a 12-month period.

 Eligible Employees for Leave

To be eligible, employees must have been employed with employer for at least 12 months and have worked a least 1,250 hours in that 12-month period before starting the leave.

• Previously, CFRA mirrored FMLA and only obligated employers with 50 or more employees to provide the leave benefit to eligible employees.
• Changes will now extend to any employer with 5 employees or more, private or public.
• Federal Family Medical Leave Act (FMLA) will still apply to private employers only that employ 50 or more employees.

Change 2: Expansion of Covered Family Members

The second change includes an expansion of eligible covered family members to now include an ill grandparent, grandchild, sibling, or domestic partner under CFRA. SB1383 also adds “child of a domestic partner” to CFRA’s definition of “child.”

Historically, CFRA and FMLA have run concurrently entitling employees to only 12 weeks of leave in a 12-month period, as the provisions of the leaves were pretty similar.

HOWEVER, now that CFRA has expanded its provision to cover small business and additional covered family members, it raises leave administration questions.

California employers will likely be confronted with employees requesting CFRA leave to care for a grandparent, grandchild, or sibling; and later in the same 12-month period requesting FMLA leave to care for a parent or spouse. In this situation, will employees be entitled to a total of 24 weeks of leave in one 12-month period? 12 weeks under CFRA and an additional 12 weeks under the FMLA.

Change 3: Key Employee Provision Deleted from CFRA

As of January 1, 2021, Employers may no longer fill positions of critical, high-ranking employees, also known as “key employees” during their leave. In addition, employers may no longer decline reinstatement of such employees to their prior position upon return.

 Prior to CFRA changes, employers were able to deny reinstatement to “key employees” seeking to return from CFRA leave as long as they proved they could not wait for employee to return from leave and because of importance of role, employer must fill position.

Change 4: California’s Parent Leave Act (New Parent Leave) Revoked

The purpose of California’s Parent Leave Act was to make baby-bonding leave available to employees who could not take leave under CFRA because they worked for employers with less than 50 employees. With the CFRA  eligibility threshold lowered to five (5) employees, California’s Parent Leave Act becomes redundant and it will be repealed effective January 1, 2021.

Employers newly subject to CFRA effective January 1, 2021 should:

1. Prepare by learning new CFRA requirements.
2. Add CFRA policy to Employee Handbook compliant with new provisions and circulate no later than 1/1/2021.
3. Update CFRA Notice of Eligibility and Designation Notice form and other applicable employee leave letters.

For compliance guidance, please contact EBHR at [email protected].