SB-1383, a new California law effective January 1, 2021, will considerably bolster unpaid leave under the California Family Rights Act (“CFRA”). In contrast with some of the other changes we’ve seen in employment law over the past months, this shift is meant to be permanent and will affect employers of all sizes.

Background

Currently, the CFRA applies to employers with 50 or more employees. The law requires that, if needed, those employers offer covered employees[1] 12 weeks of annual unpaid leave. Employees may use this leave to tend to their own serious medical condition, bond with a new child, or care for a family member with a serious medical condition. The current version of the CFRA, which will soon expire, defines “family member” as a child, parent, or spouse.

The new bill will amend the CFRA, and increases obligations to offer unpaid leave in two crucial ways. First, SB-1383 expands responsibility under the CFRA to any employer with at least 5 employees. Secondly, the new bill broadens the definition of “family member” to include a grandparent, grandchild, sibling, or domestic partner—as well as a child, parent or spouse.

Implications for employers with under 50 employees

Once the new year begins, employers with under 50 employees will find themselves navigating the CFRA’s unpaid leave requirements for the first time. This will mean, among other things, reviewing and updating company handbooks and leave policies.

These employers should also note that, in an effort to recognize this significant new burden for smaller employers, lawmakers are instituting a “family leave mediation pilot program”[2] that will be effective until January 1, 2024. The program is intended to mediate disputes between employers and employees related to CFRA leave and applies only to employers with between 5 and 19 employees. The program will allow an employer (or employee) to ask for mediation through the Department of Fair Employment and Housing (DFEH) within 30 days of receiving a right-to-sue notice. Until the mediation is complete, an employee will not be able to pursue a civil case against the employer.

Implications for employers with 50 or more employees

Employers who are already bound by the CFRA will face changes as well, especially due to the new definitions of “family member” under SB-1383. Companies with 50 or more employees will have to amend their policies such that employees may take leave in order to care for a wider list of family members.

Employers also covered by the Family Medical Leave Act (FMLA) should note another potential challenge. The CFRA will soon grant leave to a wider list of family members than the FMLA. This means that employers may need to grant up to 24 weeks of unpaid annual leave to an employee who needs to care for two family members (one as defined under the FMLA, and another as defined under the CFRA).

Additional points

Finally, it’s important to note a few additional changes SB-1383 makes to the CFRA. The new bill eliminates the prior option employers had to refuse an unpaid leave request for one of the following reasons:

• A limited number of employees live within 75 miles of the workplace.

• The worker is among the 10% highest-paid employees within a 75-mile radius, and granting the leave would cause dire consequences for the business.

Immediate employer requirements

To ensure compliance with the new CFRA when 2021 arrives, all employers should immediately begin consulting with employment counsel and updating leave policies and procedures, including updating postings related to leave.

Employers with under 50 employees may have the most work to do in this regard, as they were not previously bound by the CFRA. However, bigger employers will also have to make adjustments to their policies, especially regarding the new definition of “family member.”

We also recommend that employers…

Announce the new leave requirements to employees before 2021.  Explain what employees need to do in order to apply for such leave.

[1] An employee is only eligible if they have worked for the employer for at least 12 months, and for at least 1,250 hours in the preceding 12 months. (Note that the rule is different for employees of an air carrier).

[2] The pilot program was incorporated in an amendment of another new law, AB-1867.

Authors: Diana Maier, Partner, and Penina Eilberg-Schwartz, Project Manager/Paralegal.

The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.