Employment Law Alert: Significant Expansion to the California Family Rights Act Impacts Most Employers Statewide

The California Family Rights Act (“CFRA”) currently provides leave rights to eligible employees at a worksite with at least 50 employees within 75 miles. Senate Bill (“SB”) 1383, effective January 1, 2021, significantly expands this law in many important ways, broadening the number of employers that will now be covered, expanding the reasons for which employees can take leave, and making several additional updates.

Covered Employers

SB 1383 significantly expands the definition of a covered employer for CFRA to include any employer with five or more employees, down from the prior threshold of 50 employees. Further, the five employees do not need to work within 75 miles of the worksite. For instance, a fully remote company with five employees working from home would be covered by CFRA effective January 1, 2021.

Family Members

Under CFRA, employees can take leave to care for a family member with a serious health condition. Whereas a “family member” for whom an employee can currently take leave includes a child, parent, spouse, or domestic partner, SB 1383 expands this definition to include a grandparent, grandchild, or sibling.

Additionally, to take leave under CFRA to care for a child, the child must either be under 18 years of age or an adult dependent child. SB 1383 expands the definition of a child to include a child of any age, regardless of whether the child is dependent.

These more expansive definitions of “family member” are a departure from CFRA’s alignment with the Federal Family & Medical Leave Act (“FMLA”). This means there are situations where employees may now be entitled to both forms of leave on separate occasions. For instance, if an eligible employee takes CFRA leave to care for a grandparent with a serious health condition, this will not run concurrent to FMLA leave because a grandparent is not included in the definition of a family member under FMLA. Consequently, an employee would still have 12 weeks of FMLA leave remaining after taking 12 weeks of CFRA leave to care for a grandparent. Conversely, if the employee takes 12 weeks of leave to care for a parent with a serious health condition, FMLA and CFRA would run concurrently and the employee would not have 12 more weeks of CFRA leave to care for a grandparent who subsequently became ill.

Parents Employed by Same Employer

Under CFRA, where parents are employed by the same employer, the employer can currently limit leave in connection with the birth, adoption, or foster care of a child to a total of 12 weeks combined, for both parents. SB 1383 eliminates this limitation meaning that parents employed by the same employer will each be entitled to 12 weeks of leave in connection with the birth, adoption, or foster care of a child.

Covered Use for Leave

SB 1383 will enable employees to take CFRA leave because of 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. There are multiple activities that meet the definition of a qualifying exigency, and they are outlined in California Unemployment Insurance Code Section 3302.2. In most cases, such leave would run concurrent to FMLA leave for this purpose.

Key Employee Limitation

Under CFRA, an employer can refuse to reinstate a “key employee” – i.e., a salaried employee who is among the highest paid 10 percent of the employer’s employees within 75 miles of the worksite – where the refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer. SB 1383 eliminates this restriction such that employers will no longer be permitted to refuse reinstatement on this basis.

Employer Policy Updates

All California employers with five or more employees need to update their employee handbooks to comply with SB 1383 (and other recent changes in California employment laws).  Employers with 5-49 employees will need to implement a CFRA policy to take effect January 1, 2021. In the case of employers with 20-49 employees, this policy will supersede their preexisting New Parent Leave Act policy. Employers that are already covered by CFRA will need to update their policies to reflect the expanded coverage created by SB 1383, as well as the other changes described above.