The California Family Rights Act (CFRA) amended the 1991 California family and medical leave law to generally mirror the FMLA. However, with the enactment of various California laws, differences between CFRA and FMLA have become more numerous.
Similar to the FMLA, CFRA requires that covered employers provide eligible employees with up to 12 weeks of unpaid time off in a 12-month period for their own serious health condition; to care for a child,parent, spouse (including same-sex spouses) or domestic partner with a serious health condition; or to care for a newborn, newly adopted or newly placed foster child. It also requires that employers provide continued coverage to eligible employees under group health insurance plans.
Employees may be eligible to take up to 12 weeks of leave under CFRA if they have worked for their employer for at least 12 months and 1,250 hours during the previous 12-month period.
With respect to pregnancy and childbirth, the CFRA allows eligible employees up to 12 weeks of leave in a 12-month period for the birth of a child, for the adoption of a child or for the placement of a child in foster care. It also allows leave to care for a seriously ill family member or for the employee’s own health condition, other than pregnancy-related disability. Although the provisions of the CFRA are similar to FMLA with respect to the birth of a child or the placement of a child for adoption, an employee in California has no protection under this law for pregnancy-related disability. However, disabilities related to pregnancy are covered under the California Pregnancy Disability Leave Act, part of the California Fair Employment and Housing Act (see Pregnancy Disability Leave).
Covered employers. If an employer directly employs 50 or more persons within the United States or any of its territories and is engaged in business in California, it is covered by the CFRA and is thus required to comply with its requirements. There is no requirement that the 50 employees work at the same location or work full time. Employers need not count independent contractors in their total workforce for this purpose. If an employer is a partnership, partners are not counted as employees.
The state of California, its counties and any other political or civil subdivisions of the state and cities are covered, regardless of the number of employees.
Employee eligibility. To be eligible to take a CFRA-protected leave of absence, an employee must workin California and have been employed with a covered employer for more than one year and must haveworked at least 1,250 hours in California during the 12-month period immediately prior to the date theCFRA leave is to commence. (See Pregnancy Disability Leave regarding eligibility when pregnancydisability leave covered by FMLA precedes a CFRA leave.) Employees of any classification are covered,including full-time, part-time and temporary employees. To determine eligibility, the number of hours worked are actual hours, excluding paid time off.
The 12 months of employment may occur at any time and includes gaps in service of any length. The FMLA regulations state that a break in service of more than seven years need not be counted toward the 12 months of service requirement unless it is due to National Guard or military reserve service or pursuant to a written agreement reflecting the employer’s intent to rehire the employee.
The employee’s work location is another eligibility factor. The employee must work at a site in which 50 or more employees work, or the employee must work within a 75-mile radius of 50 or more employees. If the employee works away from a work site with 50 employees, the employee is eligible for leave if his or her work is directed from a work site with 50 employees within 75 miles. The number of employees is measured as of the date the employee gives notice of the need for leave. The 75-mile radius is measured in surface miles using surface transportation from the work site where the employee requesting the leave is employed.
Leave entitlement. Eligible employees may take CFRA-protected leave for a qualifying reason that covers the duration of the illness, medical treatment or recovery time up to 12 workweeks in a 12-month period.
For purposes of CFRA, methods to define the leave include the following:
CFRA leave may be taken in a block of time or on an intermittent basis (either sporadically or on a reduced-leave schedule). Intermittent leave is to be taken only when medically necessary for an employee’s treatment or recovery or to care for a family member with a serious health condition. Only the amount of leave actually taken may be counted toward the CFRA 12-week period. An employer may limit leave increments to the shortest period of time that the employer’s payroll system uses to account for absences or leave.
Notification. An employee is required to provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave. The notice must state the reason for the leave and its anticipated timing and duration. An employer may require 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not feasible (e.g., not knowing when leave will be required to begin, a change in circumstances or a medical emergency), notice must be give as soon as feasible. Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid,as CFRA leave. In addition, the employer must respond to a leave request as soon as possible but no later than 10 calendar days after receiving the request.
Duration of leave. The basic minimum duration of a CFRA leave is two weeks when the leave is taken for the birth, adoption or foster care placement of a child. However, an employer must grant a request fora CFRA leave of less than two weeks duration on any two occasions. In addition, leave taken for the birth,adoption or foster care placement of a child must be completed within one year of the qualifying event.Where CFRA leave is taken for the serious health condition of a parent, child or spouse or for the serioushealth condition of the employee, leave may be taken intermittently or on a reduced work schedule whenmedically necessary, as determined by the health care provider of the person with the serious healthcondition. However, an employer may limit leave increments to the shortest period of time the employer’s payroll system uses to account for absences.
If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption or foster care placement of their child to 12 workweeks in a 12-month period between the two parents. No other limitations restrict these parents from taking a CFRA leave for other qualifying reasons.
Benefits. An employer is not required to pay an employee during a CFRA leave, except when an eligible employee elects, or the employer requires the employee, to use any accrued vacation time or other accumulated paid leave other than accrued sick leave.
However, if CFRA leave is for the employee’s own serious health condition, the employee may elect, or the employer may require the employee, to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer.
If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee’s CFRA leave. This obligation commences on thedate the leave first begins. The obligation continues for the duration of the leave(s), up to a maximum of 12 workweeks in a 12-month period.
During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in employee benefits plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefits plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave.
Reinstatement. Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or a comparable position and provide the guarantee in writing upon the request of the employee.Employment in a comparable position means employment in a position that is virtually identical to theemployee’s original position in terms of pay, benefits and working conditions, including privileges,perquisites and status. It must involve the same or substantially similar duties and responsibilities, skill,effort and authority, it must be performed at the same or geographically proximate work site and ordinarily means the same shift or same or equivalent work schedule.
An employer may deny reinstatement to an employee if his or her position ceased to exist, such as in alayoff. An employer may also deny reinstatement if the employee taking the leave is a key employee(salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary and give the employee a reasonable opportunity to return to work.
New-child bonding leave. New-child bonding is part of CFRA and allows employees to take up to 12weeks of leave to bond with a newborn child, a newly adopted child or a child newly placed in foster care.At the end of an employee’s period(s) of pregnancy disability leave, a CFRA-eligible employee mayrequest a CFRA leave of up to 12 workweeks for reason of birth of the child if the child has been born bythis date. There is no requirement that either the employee or child have a serious health condition, nor is there a requirement that the employee no longer be disabled by pregnancy, childbirth or a related medical condition before taking CFRA leave for reason of birth of the child.
New-child bonding leave must be completed within the first year of the birth or placement of the child.Parents (married or unmarried) and registered domestic partners who work for the same employer are limited to a combined total of 12 weeks of CFRA for new-child bonding. In contrast, only parents who are married and who work for the same employer are required to combine the 12 weeks of FMLA leave.Therefore, married and unmarried parents have different leave entitlements under California and federal law.
Under CFRA, employers may require that employees taking intermittent leave for new-child bonding doso in at least two-week increments of time. However, on two occasions, an employer must grant a request by an employee to take such a leave in smaller increments.