It’s been nearly a year since California expanded the scope of its California Family Rights Act (CFRA) to apply to smaller employers, i.e., those California employers with five or more employees. But confusion looms. When we speak with our smaller clients, many of them are not even aware that they are required to comply with the CFRA. So here’s a refresher.
The basics of the CFRA
The CFRA is about job protection. Eligible employees can take up to 12 weeks of paid or unpaid leave over the course of 12 months, and upon their return to work, are entitled to their same job or a comparable position.
The leave can be used to:
- bond with a new child;
- care for a serious health condition of their own, or that of a family member*; or
- emergency related to an active duty call of a family member in the military.
*A family member includes: a child, parent, spouse, sibling, grandparent, grandchild or domestic partner. Children are not limited to those under 18 or adult dependent children, and an employee’s domestic partner’s child is included in the definition of child.
Who can take leave under the CFRA?
To be eligible for CFRA leave, the employee must have:
- worked for you for at least 12 months; and
- worked at least 1,250 hours over the past 12 months.
If two employees are parents of a new child and wish to take CFRA leave to bond with the child, each parent is entitled to up to 12 workweeks of leave and the parents may request leave for the same 12 workweeks.
Leave may be taken intermittently.
Medical Certifications, Substitute Pay and Benefits
Employers may require medical certifications of the need for leave including: the date the serious health condition commenced, the probable duration of the condition, and verification that the due to the serious health condition the employee is unable to perform the essential functions of the job, or if taken for a family member, that the serious health condition warrants the participation of a family member to provide care.
CFRA leave is not paid. However, you may require employees to use any accrued or unused vacation or paid time off (PTO). If for the employee’s own serious health condition, you may require them to use paid sick leave (unless the employee is receiving State Disability Insurance). Employees may be eligible for partial wage replacement benefits such as State Disability Insurance or Paid Family Leave, available through the California Employment Development Department (EDD) at 916-550-5309 or www.edd.ca.gov.
Employers must continue paying for group health benefits for employees on CFRA leave.
Pregnancy Disability Leave is Separate
California has a special leave law covering Pregnancy Disability Leave, which allows up to four months of leave for pregnancy-related disabilities. See the DFEH’s Pregnancy Disability Leave fact sheet for more information.
What to do when an employee requests leave
First, determine whether your employee even qualifies for the leave: have they worked for you for a year and worked at least 1250 hours in that year? If you are a larger employer with over 50 employees, the employee may qualify for leave under the CFRA and the federal Family and Medical Leave Act (FMLA).
If you ask for a health provider’s certification verifying the serious health condition at issue, do not ask your employee to disclose an underlying diagnosis – employees have a right to privacy in this information.
You must respond to the leave request as soon as you can, but no later than five business days.
Takeaway
Businesses are encouraged to plan for providing up to 12 weeks of job-protected leave to qualifying employees and to draft and implement family and medical requests and other related forms. The Department of Fair Employment and Housing has provided a detailed CFRA fact sheet, found here.
Employee leave laws can be confusing. Employers should consult with experienced employment law counsel when navigating these complicated leave issues. The skilled attorneys at Duggan McHugh Law Corporation in Sacramento are ready to help.