Most people are generally familiar with the federal Family Medical Leave Act (FMLA) and often assume that the California Family Rights Act (CFRA) provides the same protection. While the FMLA and the CFRA are both forms of protected unpaid leave, like many California employment laws, employees will receive broader protection under the CFRA.
On January 1, 2021, significant amendments to the CFRA became effective. The amended CFRA substantially expands the number of workers who are entitled to protected leave. In this chaotic pandemic world, these critical changes may have gone unnoticed. Employers may still be operating under the old rules and workers may not know the full extent of their new rights. To help clients successfully take their protected leave, advocates must know these important new rules and how to beat employers who may try to play games with their client's rights. Advocates need to know: (1) what are the new rules; (2) how employers try to circumvent those rules; (3) how to push back against an employer attempting to interfere with a client's protected leave; and (4) the potential claims against an employer for doing so.
The FMLA provides eligible employees up to 12 weeks of unpaid protected leave to care for oneself, a spouse, child, or a parent. (29 C.F.R. § 825.200). To be eligible, the employee must have worked for at least 1,250 hours in the past 12 months and the employer must have 50 or more employees within a 75-mile radius. (29 U.S.C. § 2611; 29 C.F.R. § 825.110). The leave can be continuous or intermittent. (29 C.F.R. § 825.202). An employee who takes protected leave has the right to reinstatement to the same or equivalent position. (29 C.F.R. § 825.214).
In narrow circumstances, an employer can deny reinstatement if the employee is designated a key employee. (29 C.F.R. § 825.217). To be designated as a key employee, the person taking leave must be salaried and among the top 10 highest paid employees within a 75-mile radius. (29 U.S.C., § 2614(b)(1); 29 C.F.R. § 825.217). The employer must provide written notice making the key employee designation at the time the employee requests leave. (29 CFR § 825.219(b)). The employer must then provide a second written notice once it determines that “substantial and grievous” harm will occur by reinstatement (but not by the leave). Ibid.
CFRA OVERVIEW AND KEY 2021 AMENDMENTS
Until last year, CFRA largely mirrored the FMLA in terms of eligibility. However, the recent amendments have added greater coverage under California law. At a minimum, advocates must be aware of 4 key changes to the CFRA.
- Broader Coverage
Employers with 5 or more employees must provide CFRA leave. (Gov. Code, § 12945.2, subd. (c)(2)). This expands coverage to approximately 6 million additional Californians. (Governor Newsom Signs Bill Extending Job-Protected Family Leave to Nearly 6 Million Californians (Sep. 17, 2020) at <https://www.gov.ca.gov/2020/09/17/governor-newsom-signs-bill-extending-job-protected-family-leave-to-nearly-6-million-californians/> [as of Mar. 14, 2021].)
- Grandparent/Grandchildren Care
Employees can take protected leave to care for their grandparents or grandchildren. This is distinct from the FMLA in recognizing that family support structures can be multigenerational. Leave under CFRA is now permissible for care related to the employee's child, parent, spouse, grandparents, grandchildren, domestic partner, sibling or for care related to the employee. (Gov. Code § 12945.2, subd. (b)(4)(B)).
- No Key Employee Designation
CFRA eliminated an employer's ability to deny reinstatement to a worker designated as a key employee.
- Mandatory ADR for Disputes with Small Employers
Eligible employees who have been denied CFRA leave, denied reinstatement, or who have been subjected to discrimination, harassment or retaliation against for taking protected leave may seek legal action in court after obtaining a right-to-sue notice from the Department of Fair Employment and Housing (DFEH). (Cal. Code Regs., tit. 2, § 10005). However, the 2021 amendment allows smaller employers with between 5-19 employees 30 days from obtaining the right-to-sue notice to request that all parties participate in the DFEH's new pilot mediation program. (Gov. Code § 12945.21). If the employer timely requests mediation, litigation on the matter is placed on hold until the mediation is complete. The DFEH mediation program will be in place until January 1, 2024. Ibid.
A potential downside of this change is that employers may invoke it as a stalling tactic. While the amendment states that the DFEH “shall initiate the mediation promptly following the request,” it still delays the case by up to 30 days and it is unclear what the department's capacity will be to meet this new obligation. Ibid. A potential upside of this amendment is that it may give some employees an early opportunity to reach a settlement on all of their related FEHA causes of action (discussed in greater detail below). The reality of this change is that employees must prepare for a potentially lengthy battle.
* This blog post is taken from an excerpt of an article co-authored by Supreeta Sampath and Greg Mayeda for the Advocate entitled The Advocate's Guide To Beating Employers At Their CFRA Games. (May 2021)