United States: Is Your Company Prepared For The Changes To CFRA Leave?

The changes to employees' rights to take leave under the California Family Rights Act (CFRA) go into effect July 1, 2015. Your company should be prepared onlyif it has done the following:

  • Reviewed the changes to the CFRA regulations, which may be found here.
  • Updated your policies and employee handbooks to reflect the legal changes in CFRA eligibility, medical certification, and leave administration.
  • Trained managers, supervisors and human resources professionals on the CFRA legal changes.
  • Updated electronic and hard copy postings and notices regarding CFRA leave – ensuring they are legible; in large, easy-to-read text; with the postings in conspicuous places that can be viewed by both employees and applicants.
  • Ensured that all postings and notices are translated in any language(s) spoken by 10 percent or more of the workforce.

The amended CFRA regulations synthesize the requirements for CFRA leave with those under the federal Family and Medical Leave Act (FMLA) to the extent there are no conflicts between the federal and state laws. Here are the key points in the revised CFRA regulations for employers:

Covered Employers: Clarification has been provided to the CFRA definition of"covered employer." The amendments provide that a CFRA "covered employer" includes the following:

  • Two or more businesses that have created a "joint employment relationship" because of their exercise of some control over an employee's work or working conditions.

    • A determination of whether a joint employment relationship exists depends on the economic realities of the situation.
  • Successors in interest of a covered employer that is engaged in any business or enterprise in California and directly employs 50-or-more full-time or part-time employees who are on the payroll for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

    • The 50-or-more full-time or part-time employee requirement includes a count of employees on paid or unpaid leaves of absence, disciplinary suspension, or other leave.

Businesses that are in the process of acquiring or merging with another business, or that expect to have a significant change in ownership, should pay close attention to this amendment.

Eligible Employees: There are new nuances for determining employee eligibility under the CFRA. The amended regulations provide that "eligible employees" include the following:

  • Full-time or part-time employees working in California who have been employed for a total of at least 12 months (52 weeks) at any time prior to the commencement of a CFRA leave, and who have worked at least 1,250 hours during the 12-month period prior to the date the CFRA leave begins.
  • Employees who are not eligible at the start of a leave because they do not meet the 12 month length-of-service requirement, but meet the requirement while they are on a leave and maintained on the company's payroll.

    • In this scenario, the employer should designate the portion of the leave in which the employee meets the length-in-service requirement as CFRA leave.
  • Employees who work at a location in which the employer has at least 50 employees within a 75-mile radius of the employee's work site.

    • For employees with no fixed worksite, an employer may count the "50 employees" within a 75-mile radius by determining the worksite to which the employees are assigned as their home base, from which their work is assigned, or to which they report.
    • When there is a joint employment relationship, the employee's worksite may be the primary employer's office from which the employee is assigned or reports. If the employee has been physically located at the secondary employer's facility for at least one year, however, the employee's worksite is that of the secondary employer.

Special Note for Out-of-State Employers:

  • Do not assume that the lone employee working out in California is not CFRA-eligible. The employee worksite determination is significant for out-of-state employers who have California employees working from home and reporting to the company's headquarters located outside of California. Although only a few employees may be working in California, 50-or-more employees may be working within a 75-mile radius of the company's headquarters. If that is the case, the employee may be eligible for CFRA leave.

Medical Certification: The amended regulations clarify that a medical certification is any document from a health care provider that provides that an employee is unable to performany one or more of the essential functions of his or her position. Employers are not permitted to contact the employee's medical provider for any purpose other than to authenticate a medical certification. Employers also may not require employees seeking CFRA leave for their own serious health condition to obtain the opinion of a second health care provider at the employer's own expense, unless the employer establishes a good faith, objective reason to doubt the validity of the certification provided by the employee.

The revised health care provider medical certification form is provided at the end of the new CFRA regulations. To comply with the California Genetic Information Nondiscrimination Act of 2011 (CalGINA), the revised medical certification clarifies that information regarding an employee's genetic information cannot be included in the provided information.

Responding to CFRA Leave Requests: Employers must respond to an employee's request for CFRA leave within five business days. Employers must attempt to respond to the leave request before the first date of leave. Once given, approval shall be deemed retroactive to the date of the first day of the leave.

Substitution of Accrued PTO and Provision of Health Benefits: The amended regulations provide that an employer may require (or an employee may request) that an employee on CFRA leave use sick leave during an unpaid portion of CFRA leave for the employee's own serious health condition, and to use unused vacation or PTO hours. But an employee receiving Paid Family Leave (PFL) benefits is not on unpaid leave, meaning than an employer may not require substitution of PTO during the PFL portion of a CFRA leave.

If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee's CFRA leave, FMLA leave, or both. The time that an employer maintains and pays for group health coverage during a pregnancy disability leave shall not be used to meet an employer's obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This shall be true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements, just as the benefits provided to employees on CFRA and pregnancy disability leave are separate.

Reinstatement Rights: Employers should review the new regulations in detail to ensure full compliance with CFRA reinstatement rights. The amended regulations explain that an employer may refuse to reinstate a"key employee" to his or her same position or to a comparable position if the employer establishes that the employee requesting the CFRA leave is a salaried employee and is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request. Moreover, employers may not require employees to undergo a fitness-for-duty examination as a condition of the employees' return to work.

Employers who prepare for the changes to the CFRA leave requirements should review the checklist above and seek assistance from counsel as needed. The key is to be prepared.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions