On September 17, 2020, Governor Gavin Newsom signed Senate Bill 1383 (SB-1383), which significantly expands employee eligibility for family and medical leave under the California Family Rights Act (CFRA).
The law, which will go into effect January 1, 2021, reduces the number of employees required for an employer to be covered under the CFRA and also expands the reasons why employees may take these leaves.
Currently, private employers with 50 or more employees working in a 75-mile radius are required to provide employees with leave under the CFRA, while private employers with 20 or more employees are required to provide limited leave time for baby bonding pursuant to the New Parent Leave Act (NPLA).
SB 1383 expands the leave entitlement to cover smaller employers, requiring employers with five or more employees to provide eligible employees with up to 12 weeks of unpaid leave within a 12-month period for a qualifying reason. Qualifying reasons include:
- Leave for the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee;
- Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;
- Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions;
- Leave because of 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;
This list of qualifying reasons further expands leave entitlement beyond what employers are required to provide under the current CFRA and NPLA. Under SB 1383, qualified employees will be entitled to take leave to care for the serious health condition of a grandparent, grandchild, or sibling in addition to the current requirement covering an employee’s parent, child, and spouse or domestic partner.
Employees taking protected leave are entitled to coverage continuation under an employer-sponsored group health plan for the duration of the leave at the level and under the conditions coverage that would have been provided if the employee had continued in employment continuously for the duration of the leave. Further, all employees are entitled to return to the same position, level of seniority, and benefits that they held when they began the leave. SB 1383 eliminates the current CFRA rule allowing employers to refuse reinstatement to salaried employees who are in the top 10% of earners and where refusal is necessary to prevent a “substantial and grievous injury.”
Likewise, SB 1383 eliminates the current CFRA rule allowing employers to limit leave for two parents working in the same company. Under the new law, each eligible parent is entitled to up to 12 weeks of unpaid leave for a qualifying reason.
Lastly, certain provisions within the new law diverge from the federal Family Medical Leave Act (FMLA), which the current CFRA regulations are modeled after. Although the FMLA and CFRA generally run concurrently, there may be circumstances where an employee is eligible to take leave under the new regulations, but not under the FMLA, such as leave to care for a grandparent. In this situation, if an employee later needed leave to care for a sick spouse (as is allowed under the FMLA), an employer may be required to provide up to 12 weeks of FMLA leave in addition to the 12 weeks already provided under the CFRA. It remains unclear whether lawmakers will address this divergence.
Employers should consult with an attorney to determine what changes SB 1383 will require, including updates to employee handbooks and internal policies. Reed Smith is monitoring this and other employment-related legislation and is ready to assist you.