In 2021, there are new updated employment Laws that impact California employers. To shed light on these regulations, our 2021 Employment Law series is designed to help employers navigate these significant changes so they can stay compliant with California law and thrive.

California legislators have expanded family and medical leave under the California Family Rights Act (CFRA) at the beginning of 2021. This new legislation, known as Senate Bill 1383, brings notable changes to employers and employees throughout the State Of California. Today, we summarize the changes employers should be aware of.

What is Senate Bill 1383?

Previously, CFRA (modeled after the Family and Medical Leave Act) covered only employers with 50+ employees within a 75-mile radius of the worksite. Qualified employees were entitled to a maximum of 12 weeks of paid or unpaid, job-protected leave for distinct family and medical reasons, including childbirth, adoption, or a serious health condition of an immediate family member. Additionally, a child was defined as someone who is under 18 years old or an adult-dependent child.

Effective January 1, 2021, Senate Bill 1383 (SB 1383) now greatly expands CFRA to all small businesses and employers of 5 or more employees. It also eliminates the California New Parent Leave Act and raises new definitions and eligibility for taking leave under CFRA.

SB1383: 2021 CFRA Expansion

With the passage of SB1383, CFRA coverage has expanded to all employers with 5+ employees regardless of the radius. This means that employees who are remote are still counted in the total number of employees.

SB1383 also greatly widens the definition of both “family member” and “child”. Qualified workers can now take family medical leave for grandparents, grandchildren, and siblings, as well as for the child of a domestic partner or for a child with a serious health condition – irrespective of the child’s age. Additionally, SB1383 adds military exigency as a qualifying reason for leave. Eligible employees may now take CFRA leave in relation to the active duty of an employee or employee’s spouse, domestic partner, child, or parent.

The revisions set forth under SB1383 eliminates the law provision which states that employers are required to provide a total of 12 weeks for maternity or paternity leave in relation to childbirth, adoption, or foster care. It replaces the provision with new parental rights to take baby bonding leave. Married employees who work for the same employer are now allowed to each take up to 12 weeks of protected leave to bond with their new child, which can total up to 24 weeks of leave.

Historically, because the CFRA and FMLA mirrored each other, leave was almost always classified as running concurrently as CFRA and FMLA.  With the CFRA expansion, however, the door has opened for leave to be classified as CFRA but not as FMLA.  One thing employers with 50 or more employees should be aware of is this “Stacking Problem”, wherein an employee qualifies for 12 weeks of CFRA leave, utilizing a qualifying reason which would not otherwise qualify the employee under the FMLA (e.g. to care for the serious health condition of a grandparent), and then later takes 12 weeks of FMLA qualifying leave (e.g. for the employee’s own serious health condition). In this situation, an employer may have to provide up to 24 weeks of job-protected leave instead of 12 weeks. Although the leave is unpaid, larger employers will face the risk of having employees, under limited circumstances, who are out for nearly 6 months. Thankfully, not all employers will encounter this as there are only a few instances where FMLA does not apply while CFRA does.

What this means for California Employers in 2021

With the new regulations put forth under SB1383, most employers in the State of California are now covered by the CFRA expansion. In light of these changes, many employers must review and revise their policies for compliance. Smaller businesses with 5 to 50 employees who were not included in the previous CFRA policy should begin planning employee leave of absence.

Here are some things employers need to have on hand:

• Forms documenting the leave requested as well as other documentation on medical or military records (i.e. Benefits During Leaves of Absence, California Family Rights Act Brochure, PDL FMLA CFRA Documentation Checklist, and Request for Leave of Absence);
• Handbooks with an updated CFRA policy; and
• A new poster displayed in their place of business, which is available on the DFEH website.

In the instance that businesses are working remotely, the poster should be easily accessible on the cloud and sent out via email to remind employees that the posters are available for viewing.

Key Takeaways

The new regulations of Senate Bill 1383 may be difficult and complex for smaller business owners who were not covered prior to 2021. If you need assistance navigating SB1383 or any other employment matter, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.