Certain key provisions of the California Family Rights Act ("CFRA") were amended effective July 1, 2015. These changes are intended to bring CFRA more in alignment with the federal Family and Medical Leave Act ("FMLA"). The key changes are described below, along with some remaining key differences between the two laws.
1. What is a "covered employer"? This definition now includes successors in interest of a covered employer or joint employers. Note, there is no criteria provided for determining whether multiple entities are in a joint employment relationship. The regulations simply state "[w]here two or more business exercise some control over the work or working conditions of the employee, the businesses may be joint employers under the CFRA." Where an employee is jointly employed by two or more employers, the employee's worksite is the primary employer's office from which the employee is assigned or reports unless the employee physically has worked for at least one year at a facility of a secondary employer, in which case the worksite is that of the secondary employer. The employee also is counted by the secondary employer to determine CFRA eligibility for the secondary employer's employees.
2. When Can You Deny Reinstatement or Maintenance of Health Benefits? An employer may deny reinstatement and continued insurance coverage to employees who fraudulently obtain or use CFRA leave. The burden is on the employer to demonstrate that the employee has engaged in fraudulent activity.
3. Changes to Eligibility Requirements. An eligible employee is one who has been employed for a total of at least 12 months prior to the commencement of the CFRA leave (changed from an employee who has been working in California more than 12 months).
4. What Constitutes a Break in Service? Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least twelve months, except for a break in service caused by military service or a written agreement to the contrary. An employer can consider employment prior to a continuous break in service of more than seven years so long as the employer does so uniformly (applied to all employees with similar breaks in service).
5. "Worksite" for an Employee With No Fixed Worksite. Where an employee has no fixed worksite, their worksite will be the worksite to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if an employee works out of her home in California but reports to and receives assignments from the corporate headquarters in Nebraska, the headquarters in Nebraska constitutes the worksite for purposes of assessing whether there are 50 employees within a 75-mile radius.
6. Maintaining an Individual's Leave Even if Your Number of Employees Drops. Once an employee meets the eligibility criterion and gives notice of the need for a leave, the employer may not deny the leave, cut the leave short, or deny subsequent leave taken for the same qualifying event during the employee's 12 month leave period, even if the number of employees during that time drops below 50 within a 75-mile radius.
7. Becoming Eligible for CFRA During a Leave of Absence. If an employee is not eligible for CFRA leave at the start of a leave of absence because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet this requirement while on leave because the leave to which the employee otherwise is entitled counts toward the length of service (but does not count toward the requirement that the employee work 1250 hours).
There are 21 additional amendments to CFRA. If you would like to read more, click here.
Be Aware: some key remaining differences between FMLA and CFRA:
1. Pregnancy disability is not a serious health condition under CFRA. There is a strong argument that an employer must maintain an employee's group health benefits for the entire time an employee is on pregnancy disability leave (up to four months) and a subsequent CFRA leave (12 weeks).
2. FMLA regulations permit an employer to contact the employee's health care provider to clarify or authenticate a medical certification.
3. The standards for seeking second opinions differ between FMLA and CFRA. Under the FMLA, an employer may seek a second opinion when it has "reason to doubt" the validity of the medical certification. The amended CFRA rules state that an employer must have a "good faith, objective reason" to doubt the validity of the medical certification in order to seek a second opinion, and a second opinion only may be requested in leaves necessitated by the employee's own serious health condition.
4. FMLA rules generally permit an employee to choose to substitute accrued paid leave during an otherwise unpaid FMLA leave or for an employer to require substitution of accrued paid leave. Under the CFRA, however, there is a distinction between when an employer may require application of accrued paid time off. The employee may elect or the employer may require the use of accrued sick leave during an unpaid portion of a CFRA leave for the employee's own serious health condition, and the employer and employee can agree to substitute sick leave during other CFRA leaves. An employee may elect or the employer can require the employee to use vacation or PTO for any unpaid CFRA leave.
