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California Expands Family and Medical Leave Entitlements

September 22, 2020

California Governor Gavin Newsom signed SB 1383 on September 17, greatly expanding 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 effective January 1, 2021. SB 1383 also expands the scope of “family members” for whom employees can take leave and the protected reasons for taking leave.

Small Employers Must Now Provide Protected Leave

Currently, the California Family Rights Act (CFRA), modeled after the federal Family Medical Leave Act (FMLA), requires an employer with 50 or more employees to grant a request by an employee with at least 1,250 hours of service with the employer during the previous 12-month period to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent, or a spouse. The employer 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) currently requires an employer to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child as long as the employee has more than 12 months of service with the employer, has at least 1,250 hours of service with the employer during the previous 12-month period, and works at a worksite in which the employer employs at least 20 employees within 75 miles.

SB 1383 repeals both the CFRA and NPLA and expands the leave requirements to employers with five or more employees. As of January 1, 2021, such employers must provide eligible employees with up to 12 workweeks of unpaid protected leave during any 12-month period. In addition to lowering the threshold to five employees, SB 1383 eliminates the “50 employees within 75 miles of the worksite where the employee is employed” qualification. Employees still must have at least 1,250 hours of service with the employer during the previous 12-month period to be eligible for the leave.

Covered Family Member Definition Expanded

Under the CFRA, eligible employees may take unpaid leave to care for a “family member” with a serious health condition. “Family member” includes a minor child (unless the child is an adult dependent 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” covers all adult children whether or not they are dependent or the children of a domestic partner.

Additional Changes

Under current law, an employer that employs both parents need only grant 12 weeks of total leave to both employees in connection with the birth, adoption, or foster care placement of a child. SB 1383 now requires the employer to grant 12 weeks to each parent for such leave to care for a child.

SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

SB 1383 provides 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. Finally, SB 1383 does not allow an employer to refuse reinstatement of “key employees” (the highest paid 10%) following a protected leave of absence as was previously permitted by the CFRA.

Potential Increase in Protected Leave for Some Employees

For employers and employees already covered by the FMLA, SB 1383’s expansion of the definition of “family member” appears to create a situation where employees could have 12 weeks of FMLA leave and an additional 12 weeks of CFRA leave. While leaves under FMLA and CFRA generally run concurrently, SB 1383 adds coverage for leaves to care for siblings, grandparents, grandchildren, and adult children not covered under the FMLA.

Accordingly, where an employee has exhausted FMLA leave for his or her serious medical condition but also requests leave to care for a sibling under the CFRA, the employer would be faced with providing 24 weeks of protected leave to the employee with continued health insurance benefits and a guaranteed right of reinstatement.

Steps to Take Before January 1, 2021

Employers that employ 5 to 49 employees should review their current leave policies and procedures and amend them to implement and administer the new protected leave requirements. Employees already covered by the CFRA should update their leave policies to include the new definition of “family member” and other new provisions of the law.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Jacqueline C. Aguilera
Kathryn T. McGuigan

Orange County
Carrie A. Gonell

Silicon Valley
Melinda S. Riechert