California’s Expanded Family and Medical Leave Significantly Impacts Small Business

Under existing law, employers with 50 or more on payroll are required to provide unpaid family and medical leave under the California Family Rights Act (CFRA) and those with 20 or more on payroll had to provide unpaid baby-bonding time off under the New Parent Leave Act (NPLA).

Effective January 1, 2021, Senate Bill 1383 (SB 1383) repeals the NPLA and greatly expands the CFRA’s leave entitlements.

Under the expanded CFRA, employers with as few as five employees must provide eligible workers with up to 12 weeks of unpaid job-protected family and medical leave each year.

An eligible employee must be employed for more than one year with the employer and have worked at least 1,250 hours during the 12 months prior to the leave.  Previously, the law excluded highly-paid salaried employees; the expanded law does not.

Eligible employees may take up to 12 weeks of consecutive or intermittent unpaid leave within a 12-week period.

Eligible employees can take leave to bond with a new child or to care for themselves or a child, parent, spouse or domestic partner. The expanded CFRA also permits leave under these new qualifying reasons:

• To care for the serious health condition of a child of any age, including a child of a domestic partner,
• To care for the serious health condition of a grandparent, grandchild, or sibling;
• To bond with a new child within one year of birth, adoption, or foster care placement (both parents working for the same employer no longer have to split the 12 weeks of leave); or
• For reasons related to military activities/deployment of a specified Armed Forces family member

Employers may require limited documentation to substantiate the need for the leave. Upon granting the leave request, employers must guarantee reinstatement to the same or a comparable position.

Employers must continue paying group health insurance premiums as if the employee were actively working.

Although the leave is unpaid, the employee must be allowed to use available paid sick leave and accrued vacation pay for the employee’s own serious health condition.  For CFRA leaves on other grounds, the employee must be allowed to use accrued vacation.

Employers with 50 or more on payroll must also continue to comply with the federal Family and Medical Leave Act (FMLA).  Such employers will now potentially face a dual leave track.  For example, the expanded CFRA permits for time off to care for a sibling, FMLA does not.  Thus, an employee could potentially use up to 12 weeks of expanded CFRA to care for a sibling and then another 12 weeks of FMLA to care for a parent in a single year.

Covered employers should promptly update their employee handbooks and absence request forms.  They should also educate and train their supervisors on the new law.

See also,

• Carpe Potestatum: Seize the Opportunity – Employee Handbook, Forms & Policies With 2021 Updates (November 6, 2020)
• What’s New in 2021: Crime Leave Spreading – California’s Broader Protections forVictim-Related Employee Time Off (October 15, 2020)
• What’s New in 2021 – Industry Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
November 12, 2020