California Expands Family Leave and Modifies Small Employer Mediation Pilot Program
California Expands Family Leave and Modifies Small Employer Mediation Pilot Program

On January 1, 2022, as a result of Assembly Bill 1033, leave under the California Family Rights Act (CFRA) will be expanded to provide employees with up to twelve weeks of job-protected leave to provide care to a parent-in-law with a serious medical condition.  The CFRA previously only allowed for leave for an employee to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.

AB 1033 also makes changes to the Department of Fair Employment and Housing’s (DFEH’s) small employer family leave mediation pilot program.  The pilot program applies to employers who have between 5 and 19 employees.  Under the program, either the employer or employee may request that all parties participate in mediation through the DFEH’s dispute resolution division.  To make eligible employees aware of this opportunity, AB 1033 requires DFEH to notify the employee in writing of the requirement to mediate prior to filing a civil action, and requires employees to contact DFEH’s dispute resolution division prior to filing a civil action.  The bill also sets specific dates for when parties must request mediation and when mediation must be initiated.  AB 1033 tolls the statute of limitations applicable to an employee’s civil action from the date the employee contacts DFEH’s dispute resolution division until the mediation is either complete or deemed unsuccessful.

Lastly, the bill entitles any small employer who is a defendant in a civil action that did not receive the required notification as a result of the employee’s failure to contact the department’s alternative dispute resolution prior to filing a civil action, to a stay of any pending civil action or arbitration until the mediation is complete or deemed unsuccessful.

Employers should note that AB 1033 was part of broader movement by the Assembly to enhance CFRA benefits.  This included Assembly Bill 1041, which was written to expand family care and medical leave to address the belief that, in the author’s opinion, the majority of households today include close loved ones who are not biologically or legally related.  Specifically, AB 1041 included leave to care for a “designated person,” which is “a person identified by the employee at the time the employee requests family care and medical leave.” The bill did not require the designated person to have any particular type of relationship with the employee, but did authorize an employer to limit an employee to a single designated person per 12-month period for family care and medical leave.  AB 1041 was not passed, perhaps because legislators were persuaded by the arguments of opponents who argued that CFRA leave was just expanded this year and that the bill imposed a significant burden on small employers.  Regardless, both AB 1033 and AB 1041 are part of a clear legislative trend of expanding leave and other employment benefits each year.  California employers should continue to keep an eye on such efforts to avoid exposure to legal claims in the future.

  • Pooja S. Nair
    Partner

    Pooja S. Nair is a business litigator and problem solver with a focus on the food and beverage sector. She advises food and beverage clients, startups and other businesses on a comprehensive range of issues, including employment ...

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