United States: Amendments To CFRA Regulations Provide Some Clarity To Employers

The California Fair Employment and Housing Council (FEHC) has issued amended regulations clarifying the California Family Rights Act (CFRA). The amendments will go into effect on July 1, 2015, and are intended to clarify previously confusing rules and adopt regulations that more closely parallel the federal Family and Medical Leave Act (FMLA). Significantly, the amendments incorporate the March 2013 FMLA regulations, to the extent they are not inconsistent with the CFRA regulations. The text of the new regulations can be found here. Below is an overview of the major changes to the law, which also highlight some of the differences between the FMLA and the new CFRA regulations.

Clarification Regarding Covered Employers and Eligible Employees

Like the FMLA, the CFRA only applies to employers who employ 50 or more employees within a 75-mile radius. Eligible employees are those who have been employed for at least 12 months and at least 1,250 hours during the preceding 12-month period. The regulations now provide further instructions on how to determine if there are 50 or more employees within a 75-mile radius. Specifically, for employees with no fixed worksite (e.g., employees who work from home), their worksite is the site: (i) to which they are assigned as their home base, (ii) from which their work is assigned, or (iii) to which they report.

Further, the regulations also clarify that an employee who was not eligible for CFRA leave at the start of a leave, because the employee had not been employed for at least 12 months, may become eligible for protected CFRA leave while on leave, because leave to which an employee is otherwise entitled counts toward the 12-month service requirement. In such instances, the employer should designate only the portion of the leave in which the employee has met the 12-month service requirement as CFRA leave.

The new regulations also provide guidance on when a business is considered a joint employer. Namely, it provides that the determination of joint employer status is to be viewed by looking at all of the circumstances based on the economic realities of the situation. Where a joint employment relationship does exist, the employee should be counted by both employers when determining CFRA eligibility for the employer's employees.

Medical Certifications

The new regulations make a few notable changes to medical certifications. Under the FMLA and the former CFRA regulations, employers could require an employee to obtain a second opinion of the employee's serious health condition if the employer had "reason" to doubt the validity of the medical certification. Under the new CFRA regulations, the employer must have a "good faith, objective reason" to doubt the validity of the certification.

The new regulations also prohibit employers from contacting health care providers except to authenticate a medical certification. The regulations provide a sample health care certification, which can be found at the end of the new regulations. The sample certification has been amended to include a reminder that employers are prohibited from requesting genetic information under the California Genetic Information Nondiscrimination Act of 2011 (CalGINA).

Under the CFRA, a serious health condition has always been an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment. Under the FMLA and prior CFRA regulations, inpatient care requires an overuight stay. Under the new CFRA regulations, however, inpatient care only requires the "expectation" that the employee will remain overnight, meaning that an employee still qualifies if he or she is expected to stay overnight, but is discharged earlier.

New Defense Regarding Fraudulent Use of CFRA

While always implied, the CFRA regulations now expressly state that an employee who fraudulently uses CFRA leave is not protected by the job restoration or health benefits provisions. Employers should keep in mind, however, that the burden lies with the employer to prove that the CFRA leave was used or obtained fraudulently.

New Notice and Timing Requirements

The regulations require employers to post a notice explaining the CFRA's provisions and the procedures for filing complaints with the DFEH. This notice must now be posted where it can be seen by both employees and applicants. The law clarifies that electronic posting is sufficient as long as it otherwise meets the notice requirements. The notice must be translated into any language that is spoken by at least 10 percent of the workforce.

The regulations also reduce the time in which the employer must respond to a leave request. While the previous regulations allowed the employer to respond within 10 calendar days, employers must now respond within five business days. Similar to the FMLA, employers may retroactively designate leave as CFRA leave only where the employer provides appropriate notice to the employee and where the employer's failure to timely designate the leave as CFRA leave does not cause harm or injury to the employee.

Next Steps for Employers

As with any change in the law, the first step employers should take is to update their relevant policies and procedures. Before July 1, 2015, employers should update their leave policies, practices and posted notices. Also, given the shortened time frame for responding to leave requests, it is important to ensure that leave requests are received by the appropriate person in a timely manner. Accordingly, employers should inform supervisors and managers about the changes to the law and provide training on how the CFRA, FMLA, and other leaves of absences work together.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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