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.

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