New California Family Rights Regulations Align With Existing Federal Law

As we start a new year, employers should check all of their employment practices to make sure they are compliant with current laws and regulations. One of the many changes made in 2016 were comprehensive amendments made by the Fair Employment & Housing Council to the California Code of Regulations regarding the California Family Rights Act (CFRA). The regulations took effect on July 1, 2015 and were intended to conform the CFRA more closely with its federal counterpart, the Family and Medical Leave Act (FMLA), and to clarify some areas of uncertainty. Among other things, the regulations now state:

  • To determine if the CFRA applies to an employer, the test is if an employer employs 50 or more full or part-time employees within a 75-mile radius. For purposes of the 75-mile radius portion of the test, the location of an employee with no fixed worksite, such as an employee working from home, is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. The regulations provide the following example: if a salesperson works from home in California, but reports to and receives assignments from her corporate headquarters in New York, the New York headquarters, not her home, would constitute the worksite from which there must be 50 employees within a 75-mile radius in order for the salesperson to be eligible under the CFRA.
  • The new regulations also provide guidance on when a business is considered a joint employer, stating that where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers, so that an employee of either should be counted by both employers. To determine whether a joint employment relationship exists, the entire relationship will be viewed in its totality based on the economic realities of the situation. If an employee performs work that benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship will generally be considered to exist in situations where there is an arrangement between employers to share or interchange employees, where one employer acts directly or indirectly in the interest of the other, or where there is common control over the employee.
  • Further, the regulations indicate that a successor in interest of a covered employer will be deemed a covered employer under the CFRA.
  • The regulations expand the definition of “spouse” to include registered domestic partners and same sex marriages.
  • Under prior regulations, employers had 10 calendar days to respond to CFRA leave requests, but under the new regulations, employers have five business days to respond to CFRA leave requests, which deadline is consistent with FMLA requirements.
  • The definition of “serious health condition” has been expanded to include either inpatient care or continuing treatment, including treatment for substance abuse.
    “Inpatient care” is now defined to mean either an overnight stay or an admission with the expectation of overnight stay. This differs from FMLA regulations that require an overnight stay.
  • The new regulations provide that an employer may require a second medical opinion only if the employer has a good faith, objective reason to doubt the validity of the certification provided by the employee.
  • An employer must now continue health benefits during CFRA leave following pregnancy disability leave for the duration of the CFRA leave, up to a maximum of 12 workweeks in a 12-month period.
  • If an employee on CFRA leave is receiving any wage replacement, the employer cannot require the employee to use accrued vacation time, PTO or sick pay. If the leave is unpaid, an employee may elect to use or an employer may require an employee to use any accrued vacation or other paid accrued time off. If the CFRA leave is for the employee’s own serious health condition, an employee may elect to use, or an employer may require an employee to use accrued sick leave that the employee is eligible to take during the otherwise unpaid portion of a CFRA leave.
  • Leave taken intermittently or on a reduced leave schedule for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee can now be taken in increments of one hour.
  • Intermittent or reduced work schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition, even if the employee receives no treatment from a health care provider.
  • The regulations permit the possibility that a leave may be extended by a reasonable accommodation for a physical or mental disability.
    The regulations extensively revise the provisions regarding the identity of key employees and their reinstatement rights. A key employee is paid on a salary basis and is among the highest paid 10% of the employees employed within 75 miles of the employee’s worksite at the time of the leave. Key employees may be denied reinstatement if they are salaried, among the top 10% in salary, and if reinstatement would cause “substantial and grievous” economic harm to the employer.  An employer who believes it may deny reinstatement to a key employee must inform the employee in writing at the time the employee gives notice of the need for CFRA leave that the employee is a key employee, and the consequences if the employer determines that reinstatement will result in “substantial and grievous injury to its operations”. As soon as the employer makes a “good faith determination” that substantial and grievous economic injury will result to its operations if it reinstates the key employee, the employer must notify the employee either in person or by certified mail, explaining the basis for the finding of substantial and grievous injury and providing the employee a reasonable opportunity to return to work.
  • The new regulations expand the employee’s right to reinstatement, providing that an employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence. An employee is entitled to the same position or to a comparable position, which is defined as virtually identical to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
  • An employee who fraudulently obtains or uses CFRA leave is not entitled to job restoration or health benefit maintenance. The employer has the burden to prove the employee’s fraudulent use or obtaining of the CFRA leave.
  • The required CFRA notice may be posted electronically, and must be translated into any language spoken by at least 10% of the workforce. 

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2016. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department, at (310) 281-6348 


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