Effective July 1, 2015

All Covered Employers Must Update Policies, Procedures and Notices

Private-sector employers with 50 or more employees are covered by the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). These state and federal laws enable a qualified worker to take an unpaid health-related leave of absence – for example, for his/her or a family member’s serious health condition, child birth or newborn care — with assurance of return to his/her job position.

The California Fair Employment and Housing Council has updated the CFRA regulations, effective July 1, 2015. The amended regulations align more closely with FMLA regulations. The changes include updates to the definitions of “covered employer” and “eligible employee.” The definition of “spouse” now includes same-sex marriage partners. The reinstatement provisions are now expanded along with greater clarity on an employer’s permissible justifications for declining to reinstate.

Some of the differences remaining between the state and federal acts are:

• The CFRA regulations caution against prying into the nature of the medical condition (under CFRA, employers may only contact a health care provider to authenticate a medical certification). Under FMLA, employers may contact the provider to clarify as well as authenticate the certification.

• In contrast with FMLA, the CFRA regulations only permit second medical opinions where leave is for the employee’s own serious health condition.

• Pregnancy disability is only covered as a serious health condition under FMLA, not the CFRA. California has a separate set of laws and regulations governing pregnancy disability leave.

Covered employers must post the revised CRFA Notice B from July 1, 2015 on. That updated poster can be purchased through the California Chamber of Commerce.

Leave administrators of covered employers should re-visit their leave policies and practices to ensure compliance with the new amendments, including correct handling of leave requests, extensions, and reinstatement.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, July 10, 2015