The California Family Rights Act (“CFRA”), which applies to California employers with 50 or more employees, provides qualifying employees with up to 12 weeks of family and medical leave within a 12-month period. CFRA leave may be taken for an employee’s serious health condition, the serious health condition of an employee’s child, parent, spouse (including same-sex) or registered domestic partner, the birth of a child, or the placement of a child in an employee’s family for adoption or foster care.
It is time to revisit your CFRA policies and practices, as the regulations that interpret the law were significantly amended, effective July 1, 2015. We have summarized the major amendments below to help ensure that your organization is fully compliant with its legal obligations.
(1) Employers Must Display New Poster Regarding CFRA Rights
The “Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave” poster has been revised and can be found here. The poster must be physically displayed in the office in a conspicuous place and/or posted electronically. The poster must be translated and posted into every language that is spoken by at least 10 percent of the workforce.
(2) Extended Health Insurance Continuation Requirement
Time spent on pregnancy disability leave does not count toward the 12 weeks of insurance coverage an employee is separately entitled to under the CFRA for taking leave to bond with a new baby. Thus, employers must provide continued health insurance coverage for employees taking up to 12 weeks of CFRA baby bonding time following pregnancy disability leave. In other words, employers may be required to provide as much as 29 1/3 weeks of continued group health insurance coverage: during up to 17 1/3 weeks of pregnancy disability leave, followed by up to 12 weeks under the CFRA.
(3) Employers Now Have Only Five Business Days To Respond To CFRA Leave Requests
The regulations reduce the amount of time that employers have to respond to an employee’s request for CFRA leave from ten calendar days to five business days.
(4) Substitution of Vacation, PTO Or Paid Sick Leave During A CFRA Leave
Employers may require employees to use accrued vacation or PTO during otherwise unpaid portions of CFRA leaves. Employers may also require employees to use paid sick leave for an employee’s own serious health condition, and employers and employees may agree to substitute paid sick leave during other CFRA leaves. If an employee is receiving Paid Family Leave benefits, the employee is not on “unpaid leave.” Thus, an employer cannot require an employee to use accrued paid time off during any portion of CFRA leave while the employee is receiving Paid Family Leave benefits.
(5) Time Increments For Intermittent Leave
An employer must limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave provided it is not greater than one hour.
(6) New Light Duty Requirement When Only Intermittent Leave Is Required
Where the nature of the employee’s job makes it physically impossible to take intermittent leave during the middle of the employee’s shift, the employee shall be permitted to return to work if he or she is able to perform other aspects of the work that are not physically impossible, such as administrative duties. If an employee chooses to do this, the employee will not have to allocate the entire day for CFRA leave. Example: a flight attendant, who normally works on airplanes over long periods of time, needs to visit a doctor for 1 hour during the day. His appointment interferes with his ability to fly on a scheduled flight from San Francisco to Los Angeles. He may elect to spend 1 hour of intermittent CFRA leave to visit his doctor and then work the remainder of the day performing administrative duties on the ground, so long as he is able to perform them. However, if he does not return to work after the doctor’s appointment, then the CFRA leave includes the time after his doctor's appointment.
(7) The CFRA’s Protections Expanded To Broader Group Of Employees
The CFRA applies to “eligible employees” only. One condition of being an “eligible” employee is that he must work for an employer who has at least 50 part- or full-time employees within 75 miles of the “worksite” where the employee requesting leave is employed.
Under the new regulations, California-based employees without a fixed worksite location to commute to work may now be protected by the CFRA. The employee’s worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. The “worksite” can be out of state, so long as that worksite, wherever it is, has at least 50 part- or full-time employees within 75 miles. Moreover, under the new regulations, a “worksite” can refer to either a single location or a group of contiguous locations. Example: A salesperson living in a remote part of California who telecommutes by reporting to and receiving assignment from her supervisor at a corporate headquarters in New York might be protected by the CFRA. The New York headquarters-and not the salesperson’s home—would constitute the “worksite” from which there must be at least 50 employees within a 75-mile radius in order for the CFRA to apply.
Additionally, the new regulations permit an employee who has met the 1,250 hour requirement but not the 12-month length of service requirement when CFRA leave starts to nonetheless meet the 12-month requirement while on leave. This is because leave to which he/she is otherwise entitled counts toward length of service (although not for the 1,250 hour requirement). The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave.
(8) Successors In Interest Are “Covered Employers” And Additional Guidance On Joint Employer Situations
The definition of a “covered employer” under the CFRA includes successors in interest of a covered employer. The new regulations also clarify that “joint employer” refers to two or more businesses exercising joint control over the work or working conditions of an employee, where there is an arrangement to share or interchange employees, where an employer acts in the interest of the other, or in situations where there is common control over an employee.
(9) Reinstatement Rights
Employers are now expressly required to reinstate an employee returning from CFRA leave regardless of whether or not his/her position was replaced or restructured to accommodate the employee’s absence. While an employer may still defend against a failure to reinstate by proving that the employee would not otherwise have been employed on the reinstatement date, it does not meet this burden where the change in the position or structure was implemented to provide coverage while the employee was on leave. If an employee is not qualified for the position upon return from leave as a result of missing training or other qualifying reasons during the leave , he/she must be afforded a reasonable opportunity to fulfill the position’s requirements.
A “key employee” may be denied reinstatement if he/she is salaried employee who is among the highest paid 10 percent of the employees within 75 miles of the worksite, and reinstatement would cause “sustained and grievous economic injury” to the employer.
The new regulations note that an employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA's job restoration or maintenance of health benefits provisions. An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.
(10) New Certification Of Health Care Provider Form
The new regulations provide a form that employers may use when seeking a certification from an employee’s health care provider. The revised “Certification of Health Care Provider” form can be found here. Use of this form is optional but recommended. An employer may not contact a health care provider for any reason other than to authenticate a medical certification.
BEST PRACTICE TIPS AND ACTION ITEMS
Provide continued group health insurance benefits during pregnancy disability leave, and, separately, CFRA leave for baby bonding.