Bay Area Employment Lawyer Blog
Starting on January 1, 2021, the California Family Rights Act will cover more employees and for more for reasons than ever before! You can find the text of the new law, SB 1383 here.
Who is Covered by the Current Law?
Under the current law, employers with fewer than 50 employees within a 75-mile radius were not required to provide family or medical leave to their employees. Likewise, employers with fewer than 30 employees within a 75-mile radius were not required to provide baby-bonding leave under the New Parent Leave Act. The employer size requirements left many employees without any job-protected leave to care for their own medical conditions, their family members’ medical conditions, or the birth or adoption of a new child.
Who Will Be Covered by the New Law?
In January, if your employer has five or more employees and you are otherwise eligible, your employer is required to provide 12 workweeks of unpaid job-protected leave during any 12-month period for reasons covered by the law. During this unpaid leave, employers will be required to pay for and maintain the employee’s group health plan for the duration of the leave. Job protection means that once an employee returns from their protected leave, he/she must be reinstated to the same or a comparable position. Job protection provides employees with certainty that they will have a job when they return from caring for themselves or their loved ones.
What Changes Will There Be to the Qualifying Reasons for Taking Leave?
As the law currently stands, covered employees are entitled to take medical leave to care for a serious health condition for themselves, their child, a parent, a spouse, or a domestic partner. The new law expands the coverage and allows employees to take leave for the serious health conditions of additional family members including grandparents, grandchildren, and siblings. This is a welcome change that recognizes that families come in a variety of shapes.
Am I Eligible To Take Leave?
To be eligible for the 12 weeks of job protected leave, in addition to working for an employer that has five or more employees, an employee must have been working for the employer for one year or more, and must have worked 1,250 hours or more during the 12 months preceding the leave. Although you must have worked for the employer for a total of 12 months, this can now be 12 nonconsecutive months, as long as you have worked for the employer for 12 months over the course of a seven-year period.
What About Leave for the Birth of a Child, Adoption, or Foster Care Placement?
Currently, eligible employees are also allowed to use their 12 weeks of leave for the birth of a child, or the placement of a child in connection with adoption or foster care of the child by the employee. This coverage will not change. However, there are expanded protections for parents who work for the same company. Under existing law, if both parents worked for the same employer, the employer was only required to provide 12 weeks total to both parents for bonding with a newborn, adopting or foster care placement. The new law will require the employer to provide 12 weeks of leave to each parent.
What if I am covered by both CFRA and FLMA?
The federal Family Medical Leave Act provides 12 weeks of job protected leave to employees who have been employed for one year or more and have worked 1,250 or more hours during the 12 months preceding the leave, and who have worked at a location where there are 50 or more employees within a 75 mile radius. A covered employee can take FMLA leave to care for his/her own serious health condition, or for the serious health condition of the employee’s child, parent, or spouse. Eligible employees can also take the 12 weeks of leave for bonding with a newborn, or for the adoption or foster care placement of a child. Currently, if an employee is covered by both CFRA and FMLA, those two leave run concurrently. So for example, if you take leave to care for a new baby and you are covered by both CFRA and FMLA, you only get 12 weeks of leave total, not 24.
However, with the expansion of the California leave law, there may be circumstances where an employee who is covered by both CFRA and FMLA may be entitled to a total of 24 weeks of job-protected leave. For example, under the new CFRA rules, a covered employee can take 12 weeks to care for a grandchild’s serious health condition. However, grandchildren are not covered by FMLA, so it would not apply. Therefore, if the same employee needed 12 weeks to care for his/her own serious health condition, the employee could take that time under FMLA and have an additional 12 weeks of FMLA leave.
These changes are long overdue and a welcome change to the family leave laws in California!