CA Employers Must Update CFRA Handbook Policies for 2022
The end of the year may generally be a good time to invest in printing companies, as CA employers are pretty much guaranteed to need to update and (possibly) redistribute their employee handbooks.
While this year was tame compared to most years, there is one important update that all California employers will need to make (those with five or more employees), and that is to the Paid Sick Leave policy. The change comes courtesy of Assembly Bill 1033, signed into law by Governor Newsom on September 27th. The actionable component of the legislation requires that paid sick leave must be made available for the diagnosis, care or treatment of an existing health condition of or preventive care for parents-in-law in addition to the other family members already covered.
The other component of the legislation (which will not require a policy revision) only affects CA employers with 5 to 19 employees. Beginning January 1, 2022, the DFEH will be required to notify an employee in writing of the requirement for mediation under the DFEH’s small employer mediation program prior to filing a civil action. Additionally, it will require the employee to contact the DFEH’s dispute resolution division to indicate whether they are requesting mediation, and make other related changes.
Some Model Language
AB 1033 only requires one update to an existing CFRA policy, and that is in the section that addresses the reasons for which CFRA leave and be used. Below is model language incorporating the 2022 required inclusion of parents-in-law. This would usually appear in the section referencing Basic CFRA Leave Entitlement:
The CFRA provides eligible employees up to 12 workweeks of unpaid leave for certain family and medical reasons during a 12-month period. The 12-month period is determined by a rolling 12-month period measured backward from the start date of the CFRA leave. Leave may be taken for any one, or for a combination, of the following reasons:
- bonding and/or caring for a newborn child;
- for placement with the employee of a child for adoption or foster care and to care for the newly placed child;
- to care for the employee’s spouse, registered domestic partner, child, parent, parent-in-law (parent of a spouse or domestic partner), grandparent, grandchild or sibling with a serious health condition;
- for the employee’s own serious health condition (excluding pregnancy-related disability) that makes the employee unable to perform one or more of the essential functions of their job; and/or
- because of any qualifying exigency arising out of the fact that the employee’s spouse, registered domestic partner, son, daughter or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty status) in the Reserve component of the Armed Forces for deployment to a foreign country in support of a contingency operation or Regular Armed Forces for deployment to a foreign country.
Paid Sick Leave Policy Consideration
It I always critical to consider the impact of one policy change on other policies. The minor change in the CFRA policy may necessitate a corresponding minor change in the Paid sick Leave policy. Because an employee may elect to use, or an employer may require an employee to use, any accrued sick leave that the employee is eligible to take during the otherwise unpaid portion of CFRA leave if the CFRA leave is for the employee’s own serious health condition or any other reason if mutually agreed between the employer and the employee, it might be a good idea to add parent-in law to the list of reasons for which paid sick leave can be taken, Here is some model language:
Paid sick leave may be used for the following reasons:
- For diagnosis, care or treatment of an existing health condition of or preventive care for, the employee or the employee’s family member (meaning a child, including biological, adopted or foster child, stepchild, legal ward or a child to whom the employee stands in loco parentis, all regardless of age or dependency status); spouse; registered domestic partner; parent (including biological, adoptive or foster parent, stepparent or legal guardian of the employee or the employee’s spouse or registered domestic partner or a person who stood in loco parentis when the employee was a minor child); parent-in-law (parent of a spouse or domestic partner), grandparent; grandchild; or a sibling; or
- For the employee who is a victim of domestic violence, sexual assault or stalking:
- to obtain or attempt to obtain a temporary restraining order, restraining order or other injunctive relief;
- to help ensure the health, safety or welfare of the victim or the victim’s child;
- to seek medical attention for injuries caused by domestic violence, sexual assault or stalking;
- to obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence, sexual assault or stalking;
- to obtain psychological counseling related to an experience of domestic violence, sexual assault or stalking; or
- to participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault or stalking, including temporary or permanent relocation.
CFRA Policy Pointers
The California Family Rights Act (CFRA) was revised effective January 1, 2021 to require California employers with at least one (1) employee in California and five (5) or more total employees to provide up to 12 weeks of unpaid, job protected leave for various family and medical reasons. The revision also repealed the short-lived California New Parent Leave Act, which provided leave to new parents employed by employers with 20 or more employees.
Employers covered by the CFRA that have an employee handbook that describes other kinds of personal or disability leaves available to employees must include a description of CFRA leave in the handbook..
Covered employers also must post a CFRA notice, which is available from the California Department of Fair Employment and Housing online at https://www.dfeh.ca.gov/Publications/#postersBody.
Employers that have 50 or more employees should be sure to implement a California Family and Medical Leave policy which combines the requirements of the CFRA and the federal Family and Medical Leave Act (FMLA).
Eligible Employees. Employees are eligible for CFRA leave if they have worked for the employer for at least 12 months and have worked for 1,250 hours in the previous 12-month period.
Special hours of service eligibility requirements apply to airline flight crew employees. This is actually required to be included in employee handbook policies by the Family and Medical Leave Act, and the CFRA regulations follow the FMLA requirements.
Reasons for Leave. CFRA leave may be taken for an employee’s serious health condition; the serious health condition of a child, parent, grandparent, grandchild, sibling, spouse, domestic partner or parent-in-law (parent of a spouse or domestic partner) who has a serious health condition; for bonding with the employee’s child after birth, adoption or placement; and for qualifying military exigencies. Certain types of leave as noted in the policy may be taken on an intermittent or reduced schedule basis. Effective January 1, 2022, parents-in-law of a spouse or a domestic partner must be included.
Pregnancy disability is not covered under the CFRA since California has a separate Pregnancy Disability Leave (PDL) law that allows employees to take up to four (4) months for PDL.
Medical Certification. The CFRA allows employers to require employees to provide limited medical certification from a health care provider for leave for their own serious health condition or the serious health condition of a family member. Detailed medical information about the nature of a serious health condition or the underlying diagnosis may not be required. Instead, medical certification for employees is sufficient if it contains the date on which the serious health condition commenced; the probable duration of the condition; and a statement that, due to the serious health condition, the employee is unable to perform the function of the employee’s position. Medical certification is sufficient for family members with a serious health condition if it contains the date, if known, on which the serious health condition commenced; the probable duration of the condition; an estimate of the amount of time which the health care provider believes the employee needs to care for the family member; and a statement that the serious health condition warrants participation of the employee to provide care during a period of treatment or supervision of the family member. Second and third medical certifications may be required for an employee’s serious health condition in limited circumstances as described in the policy.
Employers also may require that employees obtain subsequent recertification regarding the employee’s serious health condition on a reasonable basis if additional leave is required, as well as return-to-work certification indicating that the employee is able to resume work.
Reinstatement. Employees on CFRA must be reinstated to the same or comparable position.
Further Considerations. In modifying/revising a CFRA policy, the employer should consider issues including but not limited to:
- method of calculating leave entitlement (the method must be chosen in the Interview Questions; note that the most pro-employer option is the rolling-backward 12-month period). If a policy fails to designate a method to determine the 12-month period, the option that is most favorable to the employee will be used;
- any specific notice procedures (note however that notice requirements set forth in the statute);
- specific procedures for medical certification, reporting while on leave and returning from leave; and
- whether employees are required to use any accrued benefits during leave to the extent that requiring leave is permitted and/or whether employees continue to accrue time-off benefits and/or receive other benefits during leave (in general, only health insurance benefits must be continued as if the employee is actively employed; all other benefits can cease as long as employees on all other leaves of absences do not receive such benefits). Note further that if an employee is receiving disability benefits or workers’ compensation benefits, the employee cannot be required to concurrently use accrued time off benefits. In all other circumstances, concurrent use may be required as limited by the policy.
The policy should also address the continuation and payment of health insurance benefits during CFRA leave.
Compliance with the CFRA is vital to protect your organization. Unlike leave provided as a disability accommodation, which is subject to an undue hardship analysis, CFRA leave is an entitlement. To maximize management rights, the policy must be drafted in a manner so that CFRA leave runs concurrently with any simultaneous workers’ compensation and/or short-term disability leave.
Further, even if leave is provided, failure to provide the requisite notices could lead to employer liability. Every organization must acclimate itself to the notice provisions set forth in the policy to ensure that all employees who request leave are properly notified of their leave rights.