Written by Galen T. Shimoda, Jennet F. Zapata, and Erika R. C. Sembrano
Amended regulations for the California Family Rights Act ("CFRA") went into effect on July 1, 2015. Generally, the CFRA requires that employers with fifty (50) or more employees must provide up to twelve (12) weeks of unpaid leave of absence to employees who are suffering from a serious health condition or when their family members suffer from a serious health condition.
Here are some of the highlights of the changes to the regulations:
- Definition of "Covered Employer." A covered employer includes any person or individual, including successors in interest of a covered employer and joint employers. Whether an organization or business is a joint employer will depend on the extent of the control they exercise over the work or working conditions of the employee, "viewed in its totality based on the economic realities of the situation."
- Employee Eligibility Under CFRA. Eligible employees who can receive CFRA leave can be either full-time or part-time, must be employed for at least twelve (12) months (or fifty-two (52) weeks) prior to the start of the CFRA leave, and must have worked for at least 1,250 hours during that twelve-month period. The definition of "worked" is taken from the California Labor Code and Industrial Welfare Commission Wage Orders.
- CFRA Eligibility Arising During Leave. If an employee is not eligible for CFRA at the start of a leave because the employee has not met the twelve-month length of service requirement, the employee may nonetheless meet this requirement while on leave, since leave to which he/she is otherwise entitled counts toward length of service (although not for the 1,250 hour requirement). The employer must then designate that part of the leave where the employee met the twelve-month requirement, as CFRA leave.
- Definition of "Key Employee." A key employee is an employee who is 1) paid on a salary basis and 2) among the highest paid ten percent (10%) of the employer's employees who are employed within seventy-five (75) miles of the employee's worksite at the time of the leave request. Employers may refuse to reinstate a key employee to the same or comparable position assuming several conditions are satisfied. An employer who believes it may deny reinstatement to a key employee must inform the employee in writing at the time the employee gives notice of the need for CFRA leave (or when CFRA leave commences, if earlier) that he or she is a key employee. If the employer fails to do so, it will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.
- "Reason of The Birth of a Child." A qualifying reason for an employee to use CFRA leave is for the birth of a child. This is defined to include bonding with the child after birth.
- Rights Upon Return. An employee is entitled to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
- Guarantee of Reinstatement After Returning From Leave. An employee is entitled to reinstatement after returning from leave even if the employee has been replaced or the position has been restructured to accommodate the employee's absence. If an employee is no longer qualified for the position because of the employee's inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, because of the leave, the employee must be given an opportunity to fulfill those conditions upon returning to work.
- Fraud by Employee. An employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA's job restoration or maintenance of health benefits provisions.
- Employer's Choice of The Twelve-Month Period. CFRA provides a qualifying employee twelve (12) weeks of leave in any twelve-month period. Employers are able to determine how the twelve-month period is calculated, such as using the calendar year (January to December) or using a "rolling" period (based on when each employee's CFRA leave ends). After making such determination, the employer must notify employees requesting CFRA leave of its chosen method of calculating the twelve-month period and must consistently apply such method to all of its California employees.
- Intermittent Leave or Reduced Work Schedule. CFRA allows for employees to take intermittent leaves (e.g., a couple of days at a time) or to have a reduced work schedule. Intermittent or reduced work schedule leave may be taken for absences because of a chronic serious health condition, even if the employee and/or a family member does not receive treatment by a health care provider.
- Notice by Employee. An employee does not need to request expressly CFRA or FMLA leave to meet the notice requirement. However, the employee must state the reason for which leave is needed. Even if the employee only mentions that she needs "vacation," other paid time off, or resignation, this may qualify as sufficient notice (assuming the underlying reason is permissible reason under CFRA). In such a case, the employer should inquire further into the reason why. Ultimately, employers must respond to an employee's request for leave as soon as practicable but no later than five (5) business days after receipt of the request.
- Employer's Questions to an Employee Regarding CFRA Leave. After an employer obtains notice that an employee needs CFRA leave, the employer may ask for more information from the employee. An employee then has an obligation to respond to these questions, provided that the questions are designed to determine whether an absence is potentially CFRA-qualifying. If the employee fails to respond and the employer cannot determine whether the leave qualifies under CFRA, then the employer will be able to deny CFRA leave.
- Retroactive Designation of CFRA Leave. Employers can retroactively designate leave as CFRA leave after the employee has returned to work only if 1) appropriate notice is given to the employee and 2) the employer's failure to timely designate CFRA leave does not cause "harm or injury" to the employee.
- Employer's Communications With Employee's Health Care Provider. Employers cannot contact the employee's health care provider for any reason except to authenticate a medical certification. If the employer has a good faith, objective reason to doubt the validity of the medical certification, the employer can obtain a second medical opinion.
- Employee's Certification to Support CFRA Leave. Employers can require that an employee provide certification within no less than fifteen (15) calendar days of the employer's request for such certification, unless the employee cannot do so despite the employee's good faith efforts. Absent extenuating circumstances (e.g., unavailability of a healthcare provider), if an employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the fifteen (15) day time period until a sufficient certification is provided. Importantly, if the employee never produces the certification or recertification, the leave is not CFRA leave. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of the failure to provide the requested certification.
- Disability Leave Pursuant to The Fair Employment And Housing Act (FEHA). If an employee has a serious health condition that also constitutes a disability as defined by the FEHA and cannot return to work at the conclusion of the CFRA leave, the employer has an obligation to engage that employee in an interactive process to determine whether an extension of that leave would constitute a reasonable accommodation under the FEHA. Thus, the employer must ensure that it satisfies its obligations pursuant to both the FEHA and CFRA.
- No Waiver of Rights Under The CFRA. Employees cannot waive their rights under CFRA, and employers cannot require so either. Even if an employee accepts a light duty assignment, this does not waive the employee's prospective rights, including the right to be reinstated to the same position or a comparable position to the position held at the beginning of the CFRA leave.
- Translation of The CFRA Notice. If employers have ten percent (10%) or more employees who speak a language other than English, employers must translate the notice into every language that is spoken by at least ten percent (10%) of the workforce.
- Protecting Against Interference And/Or Retaliation With CFRA Rights. The regulations have expanded protections against interference with protected rights and retaliation due to using said rights. Such conduct is considered unlawful and includes transferring employees from one (1) worksite to another in order to avoid the fifty-employee requirement; changing essential job duties to preclude taking leave; reducing work hours to avoid eligibility for CFRA; and terminating an employee for who may take CFRA leave in the future.
- No Discrimination Based on Taking CFRA Leave. Employers may not use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promoting, disciplining. CFRA also cannot be counted against an employee under an employer's attendance policies (e.g., counting time off (while on leave) as an absence, and multiple absences can result in termination).
There are many other amendments that have not been included in the list above. If you have any concerns regarding your rights to medical leave, please contact an attorney at the Shimoda Law Corp.