Employment Policies

California Mandates FMLA/CFRA Leave for Small Employers

The Federal Family Medical Leave Act (“FMLA”) and the state equivalent California Family Rights Act (“CRFA”) require employers with 50 or more employees working within a 75-mile radius to provide up to 12 weeks of unpaid time off for serious or chronic medical conditions, and to bond with newborn children. California’s New Parent Act expands the CFRA bonding leave to employees working within a 75-mile radius of 20 employees.

Governor Newsom just signed SB-1383 expanding CFRA’s medical and bonding leave to any employer with 5 or more employees. This means small employers will be required to provide up to 12 weeks of unpaid time off in the following situations:

  • (A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
  • (B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
  • (C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
  • (D) 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 Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.

To qualify for the leave, the employee must have been employed with the employer for at least 12-months and must have worked at least 1,250 hours during the previous year.

Employers must grant the leave and provide “a guarantee of employment in the same or a comparable position upon the termination of the leave. “ Failure to provide the guarantee of employment is the same as denying the leave.

Employers with 50 or more employees are already familiar with the requirements under FMLA and CFRA. Now small employers will need to modify their policies and provide similar leave. When FMLA/CFRA were adopted, it only applied to employers with 50 or more employers because the legislature believed requiring small employers to keep a position open for 12 weeks would create an undue burden. This is particularly true when bonding leave is combined with pregnancy leave, providing an employee almost 7 months of time off.

The time off is unpaid, but:

Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described 

In other words, if the employer voluntarily pays all or some of the health insurance premiums for an employee, the employer must continue the health insurance payments as though the employee was working.

I expect many employers will have difficulty complying with the new requirements that take effect January 1, 2021. It also means employers with less than 50 employees will need to update their employee handbooks and policies to include the new leave entitlement.

If you have questions about what leave might be available to you or your employees, contact the Nuddleman Law Firm, P.C. We help employers navigate the difficult terrain of California and Federal leave laws, and we help employees whose employers fail to provide required leave.

Original article Robert E. Nuddleman

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