The Fair Employment and Housing Council recently adopted significant amendments to the California Family Rights Act (CFRA) regulations, which took effect on July 1, 2015. The CFRA provides family and medical leave to eligible employees of employers with 50 or more full or part-time employees. The amendments made a number of significant changes to align the CFRA with the Family and Medical Leave Act (FMLA). However, several important differences remain between the two statutory schemes.
The CFRA and FMLA both provide eligible employees with up to 12 weeks of leave in a 12-month period for the birth, adoption or placement in foster care of a child; for the employee’s own serious health condition; or to care for a parent, spouse or child with a serious health condition. The CFRA’s 12 weeks run concurrently with the FMLA term.
CFRA amendments that make it mirror the FMLA include:
Key Employee — The rules for determining a “key employee” and reinstatement rights are now the same under both the CFRA and FMLA. A “key employee” is one who is paid on a salary basis and whose compensation is among the highest 10 percent of employees within 75 miles of the worksite. Employers may refuse to reinstate key employees if to do so would threaten the employer’s economic viability or cause substantial, long-term economic injury.
Definition of “spouse” — The CFRA now expressly includes same-sex marriages and domestic partners. The FMLA was recently amended to include coverage for spouses in legal same-sex marriages.
Responding to a Request for Leave — Employees are obligated to notify employers of a need for leave, although no magic words are required. Employees must respond to the employer’s questions to determine if the absence qualifies for CFRA leave. Employers must respond to requests for CFRA or FMLA leave within five (5) days.
Retroactive Designation —The CFRA regulations adopted FMLA rules for retroactive designations of leave. An employer may now retroactively designate CFRA leave if notice is given to the employee as long as the failure to timely designate leave does not harm the employee.
Intermittent Leave — Intermittent leave under the CFRA is now the same as FMLA with respect to counting missed overtime hours and holidays. However, there still remain differences in the handling of intermittent leave in other respects.
Joint Employers— The amendments change the CFRA regulations to conform with the FMLA’s expansive rules covering “joint employer” situations where two or more employers exercise control over the employee’s work or working conditions. There are no specific factors to determine “joint employer” status. Instead, the relationship “is to be viewed in its totality based on the economic realities of the situation.”
Although many CFRA and FMLA provisions are in harmony, key differences remain. Employers should pay close attention to each law’s requirements because where the FMLA and the CFRA differ, employees are entitled to the more generous and less restrictive leave provision.
Notable differences include:
Use of Paid Leave — The FMLA says employers may force employees to use accrued paid time off, including PTO, vacation or sick leave, for an otherwise unpaid leave. The CFRA allows employers to require the use of any accrued paid leave for the employee’s own serious health condition. However, if CFRA leave is used to care for the employee’s family member, the employer and employee must agree to the employee’s use of accrued sick leave.
Pregnancy Disability as a Serious Health Condition — Under the FMLA (but not the CFRA), pregnancy related disabilities qualify as a serious health condition. California requires employers with more than five (5) employees to provide Pregnancy Disability Leave (PDL). Under PDL, employees are permitted to take up to four (4) months of leave. PDL time runs concurrently with FMLA, but not CFRA since the law does not consider pregnancy related disabilities a serious health condition. Since PDL benefits are in addition to other leave entitlements, California employees may be able take up to four (4) months pregnancy disability leave under PDL, plus an additional 12 weeks of CFRA leave to bond with the baby.
Medical Certification — The CFRA states employers may not contact the employee’s healthcare provider for any reason but to authenticate a medical certification. However, the FMLA permits contact with a healthcare provider to clarify or authenticate a medical certification.
Second Opinion — The CFRA allows employers to request a second opinion for leaves based on an employee’s own serious health condition when they have a “good faith, objective reason” to doubt the validity of the original certification. A second opinion is not permitted when an employee uses CFRA leave to care for a covered family member. The FMLA allows employers to request a second opinion for leaves based on the employee’s own serious health condition or the serious health condition of a family member when it has “reason to doubt” the original certification.
Recertification — The CFRA does not allow recertification of a serious health condition every six (6) months. Requests for recertification are permitted only when the time provided by the health care provider has expired and the employee requests additional leave. Under the FMLA, an employer may request recertification every 30 days and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is longer than 30 days.
Employers should update their handbooks, policies and forms, and ensure supervisors are trained on the law’s new requirements. Although many CFRA and FMLA provisions now align, employers must pay close attention to the unique provisions of both laws and provide employees with whichever provides the greater protections.
Sharon Kirsch is an attorney with McManis Faulkner who leads the firm’s management-focused employment law practice. For more information, please visit mcmanislaw.com.
Hilary Weddell is an attorney with McManis Faulkner whose practice focus is employment law. For more information, please visit mcmanislaw.com.