The Department of Fair Employment and Housing (DFEH), is responsible for enforcing CFRA, and has provided a factsheet for employees and employers which, very usefully, details the changes in the new CFRA vs current CFRA.  The factsheet can be found here:  Coming Soon, Expanded Family and Medical Leave

Here is a summary, with some additional detail, of the changes employers will need to be prepared for come January 1, 2021:

UPCOMING CHANGES TO CFRA – EFFECTIVE JANUARY 1, 2021

1. Employers of 5 or more employees covered by CFRA: Until December 31, 2020, CFRA applies only to private employers of 50 or more employees. Starting January 1, 2021, CFRA applies to private employers of 5 or more employees. CFRA also applies to the California state and local governments as employers.

Note:  For FMLA to be required, the employer must have 50 employees for each working day during at least 20 calendar weeks in the current or preceding calendar year.

2. Worksite limitation eliminated: To be eligible for CFRA leave, an employee generally has to meet 3 requirements: have worked for the employer for more than 12 months, have worked at least 1,250 hours in the 12 months prior to their leave, and the employer has at least 50 employees within 75 miles of the employee’s worksite. Starting January 1, 2021, the worksite mileage requirement is eliminated.

Note:  Under FMLA, an employee must still work at a location where 50 employees are within a 75-mile radius

3. Circumstances for CFRA leave expanded: Eligible employees can take up to 12 weeks of CFRA leave to: care for their own serious health condition; care for certain family members’ serious health condition; or to bond with a new child (by birth, adoption, or foster placement). SB 1383 did not change these three categories, but it did expand the types of family members for whom CFRA leave can be taken (see #4 below). In addition, beginning January 1, 2021, CFRA leave may be taken for “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, as specified in Section 3302.2 of the Unemployment Insurance Code.”

Note:  For “qualifying exigency,” FMLA is the same as CFRA except domestic partners are not covered.

Note:  Under FMLA, the employer can still require information about employee’s own diagnosis Under CFRA, now this is limited to date condition commenced, probable duration, statement that employee is unable to perform employee’s position.

4. Types of family members expanded: Currently, CFRA leave may be taken to care for the serious health condition of a spouse, domestic partner, parent, minor child, or dependent adult child. Starting on January 1, 2021, employees may take leave to care for additional family members, including: an adult child, a child of a domestic partner, grandparent, grandchild, or sibling.

Note:  FMLA allows for leave to be taken for serious health condition of: child (minor or dependent adult), parent, spouse.

Note:  Under FMLA, the employer can still require information (documentation) about the covered family member’s health.  Under CFRA, this is now limited to date condition commenced, probable duration, estimate of the time employee needs to provide care, confirmation that the health condition warrants participation of a family member.

5. Limitation on parents working for the same employer eliminated: Starting January 1, 2021, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave. Until December 31, 2020, employers may require parents to split 12 weeks of leave between them.

Note:  Under FMLA, only one parent is eligible.

6. Small employer mediation program created: CFRA applies the same to covered employers regardless of size. However, DFEH offers mediation to smaller employers (5-19 employees) and their employees to resolve any dispute over CFRA leave, before the employee can proceed with a court case. For more information about this program, see Government Code section 12945.21. Employers and employees wishing to take advantage of DFEH’s mediation services should contact DFEH at DRDOnlinerequests@dfeh.ca.gov or Toll Free: 800.884.1684 / TTY: 800.700.2320 or contact.center@dfeh.ca.gov .
7. Exceptions eliminated: Starting January 1, 2021, all employees who take CFRA leave have the same reinstatement rights. An exception for an employer’s highest-paid employees is eliminated.

Note:  FMLA still allows an exception for a salaried employee that is among the highest paid 10%.

 These changes are far-reaching and will impact pretty much all employers.  Many of the key elements of CFRA remain unchanged, and they are summarized here:

KEY CFRA PROVISIONS THAT ARE UNCHANGED

1. What qualifies as a “serious health condition”? A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either (A) inpatient care in a hospital, hospice, or residential health care facility; or (B) continuing treatment or continuing supervision by a health care provider
2. 2. Is CFRA leave paid? What about health benefits? Employers may pay their employees while taking CFRA leave, but employers are not required to do so. Employees taking CFRA leave may be eligible for California’s Paid Family Leave (PFL) program or State Disability Insurance (SDI), which is administered by the Employment Development Department (EDD). For information about using paid time off while on CFRA leave, such as vacation or sick days, see California Code of Regulations, Title 2, section 11092. Employers are required to continue the health benefits of an employee taking CFRA leave.
3. How much notice must an employee provide to their employer? If the employee’s need for CFRA leave is foreseeable, the employee must provide reasonable advance notice and, if due to a planned medical treatment or supervision, the employee must make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision. If the employee’s need for CFRA leave is not foreseeable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable or 15 days from the employer’s request.
4. May an employer require medical certification? An employer may require that an employee’s request for leave for the employee’s own health condition or to care for a family member who has a serious health condition be supported by a certification
5. Where can I find out more about CFRA leave? To learn more about CFRA, including applicable definitions, see Government Code section 12945.2 and California Code of Regulations, Title 2, sections 11087 – 11097. A variety of educational materials about CFRA are also available at: www.dfeh.ca.gov/Posters/ issued by the health care provider of the individual requiring care

DEVELOPING A NEW CFRA HANDBOOK POLICY

The policy will now apply to employers in California with between five and 49.  For employers with 50 or more employees, the policy should address both CFRA and FMLA.

When drafting the CFRA policy, remember that, although the provision provides that reinstatement generally is guaranteed only for 12 weeks, if the leave is for medical reasons, extended leave in excess of 12 weeks and subsequent reinstatement may be required pursuant to the Americans with Disabilities Act or state and local anti-discrimination and disability accommodation laws.

Also, keep in mind that, since the CFRA excludes pregnancy-related disability from the definition of “serious health condition,” under certain circumstances an employee can take consecutive time off under both laws.

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. The model policy is intended to comply with the CFRA handbook requirement. Covered employers also must post a CFRA notice, which will soon be available from the California DFEH online at https://www.dfeh.ca.gov/Publications/#postersBody.

Employers that have 50 or more employees should not use this policy and instead should implement the California Family and Medical Leave policy which combines the requirements of the CFRA and the federal Family and Medical Leave Act (FMLA).

The following model policy is provided as a guideline only.  It does not represent legal advice, nor is it intended to be used in its current form for any organization.  All policies should be carefully written for the specific organization and should be reviewed by employment counsel prior to being published in an employee handbook.

POLICY NOTES

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. The model policy includes the reference Eligibility section because it is 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 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.

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. The provision reflects this distinction. A California Pregnancy Disability Leave policy is provided in the Employee Handbook Builder.

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 this provision, 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 the model provision incorporates the notice requirements set forth in the statute);
• specific procedures for medical certification, reporting while on leave and returning from leave (note however that the model provision incorporates the medical certification procedures set forth in the statute); 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 must 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 is 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.

For active Employers Group or EverythingHR members, the link below will allow access to a Model CFRA policy for 2021 that is a suitable guideline for employers with five to 49 employees.

Model policy- CFRA for 5 to 49 employees (Requires login)