Effective January 1, 2021, the California Family Rights Act (CFRA) will apply to employers with as few as five employees, requiring them to provide up to 12 weeks of unpaid, job-protected leave to employees. The law has also been amended to expand the definition of family member to include grandparents, grandchildren, adult children, and siblings. Several other expansions of the law will also take effect at the same time, as described below.
Currently, CFRA applies to employers with 20 or more employees for baby bonding, and to those with 50 or more employees for additional leave reasons. As of January 1, 2021, all elements of CFRA will apply to all employers with five or more employees.
When determining whether a company meets the five-employee threshold, all employees are counted, including those who work part-time or are on leave. For employers whose employee count fluctuate, the standard is that they have five or more employees on a “regular basis,” which the Department of Fair Employment and Housing (DFEH) defines as “recurring, rather than constant.” DFEH provides this example:
In an industry that typically has a three-month season during a calendar year, an employer that employs five or more employees during that season “regularly employs” the requisite number of employees. Thus, to be covered by the Act, an employer need not have five or more employees working every day throughout the year or have five or more employees at the time of the allegedly unlawful conduct, so long as at least five employees are regularly on its payroll during the season.
Employees will be eligible to take CFRA leave if:
- They work in California;
- They have worked for the employer for more than 12 months (not necessarily consecutively); and
- They have worked at least 1,250 hours in the 12 months before taking leave.
Unlike the current law, the amended law does not require that the employee work within a set radius of the worksite. In other words, if an employer has five or more employees scattered throughout the country and just one is in California, the employee in California will be eligible after one year of employment if they’ve met the 1,250-work hour threshold.
CFRA currently defines family members only as parents, minor children, adult children who are incapable of self-care, spouses, and domestic partners. The amendments broaden the definition of family members to include grandparents, grandchildren, siblings, and children (both minor and adult). Presumably, this will lead to a significant increase in the use of CFRA leave. It will also make it possible for an employee who is also covered by the federal Family and Medical Leave Act (FMLA) to take both FMLA and CFRA leaves in the same year, if their CFRA leave is not also covered by the FMLA.
Parents Working for the Same Employer
Currently, employers may limit baby bonding leave to 12 weeks total between two parents if they both work for the employer. Under the amended law, each parent who is an employee will be entitled to take the full 12 weeks of CFRA leave for baby bonding.
CFRA had an exception for employers to deny leave to someone who qualified as a “key employee.” The amendments eliminate this exception.
CFRA currently does not cover leaves for qualifying exigencies related to active duty in the military. The amendments change the law to entitle an employee to take qualifying exigency leave when their spouse, domestic partner, child, or parent is a member of the U.S. Armed Forces.
Small Employer Mediation Program
In response to concerns from small employers, the state has created a pilot mediation program for employers with 5 to 19 employees that will be in place until January 1, 2024. The program requires an employee to complete mediation before they can file a CFRA lawsuit.
Employers must post a notice of employees’ rights under CFRA in a conspicuous location in the workplace or distribute it electronically to employees who do not go to the workplace. The DFEH is expected to make a suitable notice available before January 1. We will remind employers of this obligation in December and provide a link to the poster, if available.
Employers who already have CFRA (or New Parent Leave Act) policies should update them based on the expansions discussed above. Small employers who are newly covered should ensure that they have a CFRA policy. Policies should be updated or implemented by January 1.