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 California Extends Family And Medical Leave Requirements For Small Businesses, Expands Covered Family Members

| Sep 18, 2020 | Firm News |

On September 17, 2020, California significantly expanded family and medical leave to a large number of employees.  Beginning January 1, 2021, all employers with five or more employees are required to provide eligible employees with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. Before this expansion, employers were not required to provide family care and medical leave under the California Family Rights Act (CFRA) (Cal. Gov. Code section 12945.2), if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA) (Cal. Gov. Code section 12945.6), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.  The employer must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.

To be eligible for unpaid leave, employees must have accrued 12 months of service and 1,250 hours in the previous 12-month period.

California Expands Family Members For Which Family Care and Medical Leave Can Be Requested

 In addition to significantly expanding the employers to whom the law applies, the new law allows eligible employees to take leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.  Under prior law, leave for purposes of caring for a family member was limited to the employee’s child, parent, spouse or domestic partner.

Other Significant Changes

An employer that employs both parents of a child must grant up to 12 weeks of leave to each employee. Under prior law, the employer only had to grant both employees a combined total of 12 weeks of leave.

Employers must provide up to 12 weeks of unpaid job-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.  NOTE: This does NOT change prior law for any employer already subject to CFRA.

Employers are no longer permitted to refuse reinstatement of “key employees” as was previously allowed under the CFRA under qualifying circumstances.

Law Creates a Mediation Pilot Program For Employers With 5-19 Employees

In an attempt to offer some protection to the smallest employers, the law created the “small employer family leave mediation pilot program.”  This pilot program will apply only to employers with between five and 19 employees and provides that such employers may, within 30 days of receipt of a DFEH right-to-sue letter, request mediation through DFEH. The employee is not permitted to pursue a civil claim in court until the mediation is complete. This pilot program remains in effect only until January 1, 2024.

What California Employers Need to Do

Smaller employers who previously were not covered by the CFRA need to immediately begin the process of preparing for January 1, 2021. You should work with employment counsel and their HR personnel to develop policies and procedures to begin implementing and administering these new leave requirements.

Due to the expanded definition of “family member” in the new law, even employers that were already covered by the CFRA will need to update their policies, procedures and forms to be compliant with the new provisions of the law.