Hunton Employment & Labor Perspectives

Beginning in January, an expanded California leave law will require employers with as few as five employees to provide up to 12 weeks of unpaid medical and family leave each year.  For larger employers also covered by the FMLA, the California leave may be in addition to the 12 weeks of leave that employers already must provide under federal law, for a potential total of up to six-months of leave.

Senate Bill 1383, signed by Governor Gavin Newsom, greatly expands existing family leave under the California Family Rights Act (“CFRA”). Under the new CFRA provisions, employers must grant employees leave to care not just for parents, children and spouses (as is required under federal law), but also siblings, grandparents, grandchildren, and domestic partners.

While the required leave remains unpaid, employers must continue paying insurance premiums while the employee is on leave and an employee who takes leave must be reinstated to the same or comparable position held by the employee when he went out on leave.

The CFRA also will now apply to smaller employers – those with as a few as five employees.  This is a significant development for smaller employers. The current law covers only employers with 50 or more employees within 75 miles of the worksite. The change in the law means that smaller employers – who might lack the human resources personnel to implement such policies and in-house counsel to interpret the requirements – now must update their policies and plan to comply with the new law by January 1, 2021, when the law goes into effect.

Mid-sized and larger employers also will face new changes. Since the newly-expanded CFRA covers additional categories of leave beyond those covered by the federal Family and Medical Leave Act (“FMLA”), leaves under the two laws will not necessarily coincide.  For example, an employee could take 12 weeks of leave to care for a sibling, grandparent, grandchild or domestic partner under the CFRA. That same employee could also take an additional 12 weeks of leave, under FMLA, for their own medical condition or to care for a spouse, child, parent, or for the birth, adoption or foster care placement of a child.  For larger employers obligated under the FMLA, that could mean a total of six months unpaid leave.

Also, employers who employ two parents in a household will no longer be able to split the 12 weeks of leave for the birth, adoption or foster care placement of a child between them. Employers also will no longer be able to exempt salaried employees who are among the highest paid 10 percent of the company’s employees from the leave provisions.

Providing a small measure of relief, albeit temporary, an accompanying bill (AB 1867), also signed by the Governor, creates a pilot mediation program for smaller employers – those with 5 to 19 employees.  Those smaller employers can insist on mediation before an employee can sue under the CFRA. However, the mediation is non-binding, meaning the law merely creates a speed bump for an employee intent on suing their employer under the expanded leave law.  Also, the pilot program is slated to end on January 1, 2024.