Small Businesses Must Give Family and Medical Leave to Eligible California Employees in 2021

California Senate Bill (SB) 1383, signed into law by Gov. Gavin Newsom on Sept. 17, 2020, will significantly expand coverage of the California Family Rights Act (CFRA) from employers with 50 or more employees to include small employers with five or more employees beginning on Jan. 1, 2021.

Current CFRA Protections

The CFRA currently requires employers of 50 or more employees to provide an eligible California employee up to 12 workweeks of protected family and medical leave. California employees are eligible for CFRA leave if they 1) have completed at least 12 months of employment with the company, 2) have worked for the company for at least 1,250 hours in the past 12 months, and 3) are employed at a worksite that has 50 or more employees within 75 miles of that worksite.

Protected family and medical leave under the CFRA currently includes the following: 1) birth of a child, adoption of a child or placement of a foster child, 2) care of a spouse, parent or child with a serious health condition, or 3) recovery from an employee's own serious health conditions.

The CFRA and its regulations provide complex requirements for CFRA leave administration, benefit continuation, employee notices, medical certifications and interaction with other protected leaves.

In 2021, CFRA Will Apply to Small Businesses with 5 or More Employees, with Additional Leave Rights

Beginning on Jan. 1, 2021, the CFRA's family and medical leave requirements will extend to small businesses with five or more employees, regardless of the size of any employer worksites. However, to be eligible for CFRA leave, a California employee must still 1) have completed at least 12 months of employment with the company, and 2) have worked for the company for at least 1,250 hours in the past 12 months.

Additionally, SB 1383 will expand leave rights by allowing CFRA leave for the care of a grandparent, grandchild or domestic partner who has a serious medical condition. The definition of "child" will also be modified to remove the requirement that the child be under 18 years old or an adult dependent child. Further, a "child" will include the child of an employee's domestic partner.

SB 1383 also will bring the CFRA into closer alignment with the federal Family Medical Leave Act (FMLA) by allowing CFRA leave because of a "qualifying exigency" related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child or parent in the U.S. armed forces.

Removal of Certain Exemptions and Repeal of the California New Parent Act

Currently, if both parents entitled to CFRA leave are employed by the same employer, the employer is not required to provide more than a total of 12 workweeks of CFRA leave for both parents in connection with the birth, adoption or foster care of a child. SB 1383 will remove this exemption, as employers will be required to provide up to 12 workweeks of CFRA leave for each parent.

Under current law, an employer can refuse to reinstate an employee returning from leave to the same or comparable position if, among other things, the employee is salaried and among the highest paid 10 percent of the employees employed within 75 miles of the employee's worksite. This is commonly known as the "key employee" exemption. SB 1383 removes this exemption.

Finally, SB 1383 repeals the California New Parent Leave Act (NPLA), which currently provides for protected baby bonding leave to eligible employees of California employers with 20 to 49 employees. Since SB 1383 will extend CFRA's leave rights, which already include baby bonding leave, to even smaller employers than those covered by the NPLA, the NPLA will become unnecessary and will be repealed as of Jan. 1, 2021.

Conclusion and Next Steps

Small businesses are encouraged to get a head start now in creating policies and procedures that will comply with the CFRA's complex leave requirements starting on Jan. 1, 2021, and to make sure that supervisors are trained regarding employee rights under the CFRA. Businesses that are already covered by the CFRA are encouraged to review and revise policies and procedures, as well as supervisor training materials, to ensure compliance with the CFRA's expanded leave rights by Jan. 1, 2021.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.