Effective January 1, 2021, Senate Bill 1383 will significantly expand the California Family Rights Act (CFRA) to cover employers with at least 5 employees.  Previously, CFRA leave was required only of employers with at least 50 employees within a 75-mile radius.  Further, SB 1383 expands the CFRA with respect to purposes for which leave may be taken.

With the enactment of SB 1383, employers with only 5 employees or more will have to provide employees who meet certain minimum service requirements with up to 12 workweeks of unpaid protected leave during any 12-month period for a number of reasons, some of which were not previously required under the CFRA. 

One new purpose for which leave may be taken under the CFRA is for child bonding, which was previously required under California’s New Parent Leave Act beginning in 2018 for employers with at least 20 employees within a 75-mile radius and under the federal Family and Medical Care Leave Act (FMLA) for employers with at least 50 employees within a 75-mile radius. Now that the CFRA will require employers with at least 5 employees to provide child bonding leave, SB 1383 repeals the New Parent Leave Act.

Employers with at least 5 employees will also have to provide CFRA leave for the medical care of qualified employees, or for certain of the employee’s family members.  In addition to the parent, child, spouse or registered domestic partner of a qualified employee currently included as those for whose care leave may be taken, CFRA leave will now include the care of a grandparent, grandchild, sibling of a qualified employee and a child of a domestic partner of a qualified employee. The expanded CFRA will also permit leave to care for a qualified employee’s adult child over 18 years old with a serious health condition, regardless of whether the child can provide self-care.

This expansion creates new inconsistencies with leave provided under the FMLA. Inconsistencies previously existed between CFRA’s entitlements to leave as compared to the FMLA’s, but many more inconsistencies will exist after SB 1383 becomes effective.  To the extent that SB 1383 creates new inconsistencies between leave entitlements under CFRA and FMLA, there is an increased risk that an employee of an employer with at least 50 employees covered under both the CFRA and the FMLA may be entitled to leave under both laws. Usually, FMLA and CFRA leaves run concurrently. However, with the inconsistency between the two laws, an employee taking CFRA leave for a purpose not permitted under FMLA leave, could then seek leave permitted under the FMLA, potentially allowing a total of 24 weeks’ leave in a 12-month period.

The new CFRA law eliminates a current inconsistency with FMLA leave, by providing leave for qualifying exigencies related to covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the United States Armed Forces. However, unlike FMLA leave, CFRA leave is expanded by the new law to also include an employee’s registered domestic partner who is in the United States Armed Forces.

Other changes that differ from FMLA leave include the CFRA’s elimination of the limitation on leave amounts if both parents are employed by the same employer, by now permitting both parents to take up to 12 weeks of leave each. Additionally, the “key employee” exception to employee reinstatement rights is eliminated. 

Employers should keep in mind that during CFRA leave, employers must continue any health insurance benefits at the level previously provided. Further, employees taking such leave are entitled to be reinstated to the same or comparable job position, to the same extent as if they were continuously employed.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

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