United States: REMINDER: California Family Rights Act Amendments Go Into Effect July 1, 2015

The California Family Rights Act ("CFRA") is a regulation that provides employees with up to 12 workweeks of leave within a 12-month period for a qualifying event, such as family care leave or leave for an employee's own serious health condition.  Employers covered by this regulation are those who employ 50 or more employees within a 75-mile radius.  If an employer is covered by the CFRA, eligible employees are those who have worked for the employer for at least 12 months and have worked at least 1,250 hours during the 12-month period immediately preceding the leave. 

As a reminder from our April 28, 2015 post, significant amendments to the CFRA regulations take effect on July 1, 2015.  While the majority of the amendments are being implemented to parallel and incorporate the March 2013 amendments to the analogous Family and Medical Leave Act ("FMLA") federal regulations except where the two are inconsistent, there are some notable differences between the CFRA and FMLA of which employers should also be aware.  The text of the new regulations is available here.  Below is a brief review of the notable updates to the CFRA:

  • Covered Employers: This definition now includes successors-in-interest and joint employers. While a joint employer relationship is "to be viewed in its totality based on the economic realities of the situation," the amendments to the regulations provide various factors that may be analyzed to determine if a joint employer relationship exists.
  • Worksite: The amendments expand the definition of a worksite to "either a single location or a group of contiguous locations."  In addition, for employees without a fixed worksite (such as employees who work from home), the worksite is deemed to be: (1) the worksite to which employees are assigned as their home base; (2) the worksite from which their work is assigned; or (3) the worksite to which they report.
  • Covered Employees: If an employee is ineligible for CFRA leave at the start of a leave because they have not been employed the requisite 12 months, they may still become eligible while on a leave because leave to which the employee is otherwise entitled counts toward length of service for coverage purposes. Once an employee on a leave becomes CFRA eligible, the employer should then document that portion as CFRA leave.
  • Spouse: The definition now includes registered domestic partners and same-sex partners in marriage.
  • Key Employee: Employees who are paid on a salary basis and are among the highest paid 10 percent of the workforce are considered key employees. The amendments provide more detailed requirements for an employer's defense of refusal to reinstate a key employee upon return from CFRA leave if it would cause "substantial and grievous economic injury to the operations of the employer."
  • Fraudulently-Obtained CFRA Leave: The regulations now provide the employer with an express defense that an employee who fraudulently obtains or uses CFRA leave is not protected by CFRA's job restoration or maintenance of health benefits provisions.  However, the employer bears the burden of proving this defense.
  • Computation of Time: The 12-month measuring period for CFRA leave may be: (1) the calendar year; (2) any fixed 12-month leave year; (3) the 12-month period measured forward from when an employee's CFRA leave first begins; or (4) a rolling 12-month period measured backward from the date an employee uses CFRA leave. If an employer fails to designate one of these measuring periods, the method that is most beneficial to the employee will be used.  If an employer decides to change its measuring period, it must provide employees with 60 days' notice and ensure that employees receive their full 12-week benefit.
  • Twelve Workweeks: If an employee's work schedule varies from week to week, a weekly average of the hours scheduled over the 12-month period prior to the commencement of the CFRA leave is used to calculate the employee's 12-week leave entitlement.
  • Required Overtime: If an employee is normally required to work overtime but cannot do so for a CFRA-qualifying reason, the non-worked overtime hours can be counted against the employee's CFRA entitlement.
  • Intermittent Leave: Where it is physically impossible for an employee to use intermittent leave, work a reduced schedule or modified shifts, then the entire period that the employee is absent may be designated as CFRA leave and count against the employee's CFRA entitlement.  However, if the employee is able to perform other aspects of his or her work, those duties must shorten the time designated as CFRA leave.
  • Responding to Leave Requests: The amendments change the employer's required response date to any CFRA leave request from 10 calendar days to 5 business days after receiving the request.  Moreover, if the employee mentions vacation, paid time off or resignation in his or her notice, this does not render the notice insufficient as it is the employer's responsibility to determine whether the employee's request is CFRA-qualifying.
  • Medical Certification: The amendments make clear that an employer may not contact a health care provider for any reason other than to authenticate a medical certification.  Also, an employer must first have a "good faith, objective reason" to doubt the validity of a certification before requiring the opinion of a second health care provider.  While an employer may require the employee to obtain a release to return-to-work from a health care provider, it cannot do so for each absence taken for an intermittent leave.  In addition, an employer may not require an employee to undergo a fitness-for-duty exam as a condition of return from CFRA leave and such exams must be job-related and consistent with business necessity.
  • Paid Leave: The amendments expand the use of accrued vacation time or other paid accrued time off for an otherwise unpaid portion of CFRA leave.
  • Group Health Plan Coverage: The amendments expand the continuation of group health plan coverage for employees on CFRA leave and implement certain regulations depending on whether the CFRA leave is paid or unpaid.
  • Seniority: The amendments provide that taking CFRA leave cannot be counted as a break in service or cause an employee to lose seniority even if other paid or unpaid leaves do.
  • Disability Leave: The amendments highlight the distinction between an employer's obligation and an employee's rights under CFRA and those under the Fair Employment and Housing Act to engage in the interactive process to determine whether an employee's disability can be reasonably accommodated.
  • Retaliation and Protection from Interference: The amendments expand the prohibition against and definition of retaliation for an employee's exercising his or her rights under the CFRA.  Specifically, the definition of "interfering with" those rights includes refusing to authorize CFRA leave and discouraging an employee from using such leave.  It also protects not only employees but also prospective employees against such retaliation.  In addition, the amendments indicate that employees cannot waive their rights under the CFRA and that employers cannot induce employees to waive their rights.
  • Notice Posting: Covered employers are required to post a notice of the CFRA's new provisions and information concerning the procedures for filing complaints of violations of the CFRA in conspicuous places where it can readily be seen by employees and applicants.  While electronic posting is acceptable, the text of the posting must be large enough to be easily read and the posting must be translated into every language that is spoken by at least 10 percent of the workforce.

As the implementation of these amendments to the CFRA is upon us, covered employers should replace their workplace posters and medical certification forms and ensure that their relevant policies, procedures, and employee handbook provisions pertaining to the CFRA are updated and compliant.  Covered employers should ensure that all supervisors and human resources personnel are familiar with these changes and properly trained to handle CFRA-related requests moving forward.

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.

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
Events from this Firm
21 Oct 2018, Other, New York, United States

Partner Samantha Hardy will present on a panel titled, "Now You See It, Now You Don't - Keeping Up with California's Ever-Changing Wage and Hour Laws" on Monday, October 22 from 8:30 - 9:30 a.m.

24 Oct 2018, Seminar, Orange, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2018 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations.

30 Oct 2018, Seminar, Los Angeles, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2018 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
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