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July 2015

Major Revisions to California Family Rights Act Regulations – Are You Ready?

New amendments to the California Family Rights Act (CFRA) Regulations recently took effect on July 1, 2015. To ensure compliance with these changes, employers will need to revise certain policies and practices, train supervisors and human resources personnel, and distribute the new CFRA notice in the spoken language of 10 percent or more of the workforce. The updated CFRA regulations harmonize certain of the employer’s responsibilities under CFRA and FMLA, and make other changes which are specific to CFRA.

Changes That Harmonize CFRA with FMLA

Eligibility for CFRA Leave

To be eligible for CFRA leave, an employee, or the employee’s parent, child or spouse must have a “serious health condition.” “Spouse” is now clarified to include registered domestic partners and same-sex spouses.

Receiving inpatient care is one way to qualify as having a serious health condition. Under the new regulations, “inpatient care” does not require an overnight hospital stay, but instead requires an expectation that the person will remain overnight for at least one night, even if he or she is discharged early.

An employee must have worked 1,250 hours during the 12-month period immediately prior to the date of the leave to be eligible for CFRA leave. Under the new regulations, if an employee has worked 1,250 hours but has not yet worked for twelve months, the employee can become eligible for CFRA while on an otherwise-authorized leave. Once the employee reaches twelve months of employment (to include time on leave), the leave should thereafter be designated a CFRA leave.

For employees with no fixed worksite, the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if an employee works from California, but reports to and receives assignments from their corporate headquarters in Texas, the Texas headquarters, not their home, would constitute the worksite from which there must be 50 employees within a 75-mile radius in order for the employee to be eligible under the CFRA.

Responses to Employee Leave Requests and Employer Questions

Employers must now respond to leave requests within five business days (previously, the employer had ten business days to respond).

An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially CFRA-qualifying. Failure to respond to permissible employer inquiries regarding the leave request may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying.

An employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA's job restoration or maintenance of health benefits provisions. An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.

Intermittent Leave, Leave During Holidays, and Retroactive Designation

If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations.

If an employee uses CFRA leave in increments of less than one week, the fact that a holiday may occur within a week in which an employee partially takes leave does not count against the employee's CFRA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.

If an employee normally would be required to work overtime, but is unable to do so because of a CFRA-qualifying reason that limits the employee's ability to work overtime, the hours that the employee would have been required to work may be counted against the employee's CFRA entitlement. In such a case, the employee is using intermittent or reduced schedule leave.

Employers may not retroactively designate leave as CFRA leave after the employee has returned to work, except with appropriate notice to the employee and where the employer’s failure to timely designate does not cause harm or injury to the employee.

Expanded Reinstatement Rights

CFRA’s reinstatement provisions have been expanded and clarified. An employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence. If an employee is no longer qualified for the position because of the employee’s inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon returning to work.

The employee is entitled to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

An employer may refuse to reinstate a key, salaried employee only if the employee is among the highest-paid 10 percent of the employees within a 75-mile radius; and reinstatement will cause substantial and grievous injury to the employer’s operations. Whether the employee is among the “highest-paid 10 percent” is now calculated by comparing the year-to-date wages within the meaning of the California Labor Code and Industrial Welfare Commission Wage Orders of the employer’s employees within 75 miles of the worksite, divided by the number of weeks worked. The new regulations clarify that “substantial and grievous injury” could be found if reinstatement threatens the economic viability of the firm, or causes lesser, but substantial, long-term economic injury. However, “minor inconveniences and costs that the employer would experience in the normal course of doing business” certainly do not qualify.

If an employer seeks to deny reinstatement to a key employee because reinstatement will cause “substantial and grievous economic injury” to the company, the employer first must notify the key employee in writing and offer him or her the option of returning from leave early.

Liability for CFRA Violations

Under the joint employer theory, more than one employer can potentially be liable for CFRA violations. The new regulations expand/clarify the definition of joint employer. They also provide that successors in interest of a covered employer can be liable for violating CFRA.

Key Differences Between Revised CFRA Regulations and the FMLA

Continuation of Health Benefits

The CFRA regulations continue to require, but clarify, that employers must continue to provide group health benefits for the entire time an employee is on unpaid, protected pregnancy disability leave of up to four months, as well as a subsequent CFRA leave of up to 12 weeks.

If the employee does not return to work from CFRA leave for a reason other than a serious health condition, retirement, or other circumstances beyond the employee’s control, the employer may recover the premiums paid by the employer for maintaining coverage. The employer also may seek reimbursement for premiums paid if the employee doesn’t pay his or her premium payments if required under the group plan.

Medical Certifications and Second Opinions

Under CFRA, an employer may not contact a health care provider for any reason other than to authenticate a medical certification.

An employer must now have a “good faith, objective reason” (not just a “reason”) to doubt the validity of the certification the employee provides for his/her own serious health condition in order to obtain a second opinion (at the employer’s expense). The employer may not ask the employee to provide additional information (e.g., symptoms, diagnosis, etc.) in the medical certification beyond that allowed by the regulations. A sample medical certification form is included in section 11097 of the regulations.

The employer may require an employee to provide a return-to-work release from his/her health care provider, but only if the employer has a uniformly applied practice of requiring such releases. An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee’s return. After an employee returns from CFRA leave, any fitness-for-duty examination must be job-related and consistent with business necessity.

Pregnancy Disability Leave, CFRA Leave, and Other Disability Leave

An employee who is disabled by pregnancy, childbirth or a related medical condition is entitled to a pregnancy disability leave (PDL) up to four months (17 1/3 weeks), in addition to 12 weeks of CFRA leave. Pregnancy-related conditions are not covered under CFRA, but they are under the FMLA. Therefore, PDL and CFRA leaves do not run concurrently. If the employee takes a CFRA leave immediately after PDL, the 12-month period during which she must have worked 1,250 hours is the period immediately preceding her first day of PDL, not the first day of the CFRA leave.

During a pregnancy disability leave, the employer must maintain and pay for an employee’s insurance coverage at the same level and under the same conditions that coverage would have been provided if the employee had not taken PDL.

If an employee has a serious health condition that is also a disability, an employer has an obligation to comply with other provisions of the Fair Employment and Housing Act (i.e., the duty to engage in an interactive process, provide reasonable accommodation).

Substituting Paid Leave for CFRA Leave

If the employee receives a partial wage replacement benefit (such as State Disability Insurance or Paid Family Leave) during a CFRA leave, the employee is not on “unpaid” leave. Therefore, the employer cannot require the employee to use vacation pay, sick leave, or other paid time off during the CFRA leave. However, the employer and employee may agree to supplement the partial wage replacement benefit with accrued paid time off.

An employee may elect to use vacation or other paid time off, or an employer may require an employee to use vacation or other paid time off, during the otherwise unpaid portion of a CFRA leave if the leave is for the employee’s own serious health condition. If the leave is for a reason other than the employee’s own serious health condition, the employer and the employer can agree to substitute accrued paid time off.

Effect of Leave on Seniority and Benefits

Employee will generally accrue seniority and other benefits to the same extent under CFRA that they would under any other leave provided by the employer. Unpaid CFRA leave for the employee’s own serious health condition must be compared to other unpaid disability leaves. A CFRA leave taken for other reasons would be compared to other unpaid personal leaves.

However, a CFRA leave does not constitute a break in service or cause the employee to lose seniority, even if other paid or unpaid leaves do constitute a break in service for purposes of establishing longevity or seniority, or for layoff, recall, promotion, job assignment, or seniority-related benefits.

Interference and Retaliation Prohibited

Employers must not interfere with employees’ CFRA rights or retaliate against employees for exercising them. Examples of interference by an employer include: transferring employees from one worksite to another to worksite, changing job duties, reducing an employee’s hours to bar his or her eligibility, and terminating an employee when it anticipates the employee will be asking for a CFRA leave.

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under CFRA. For example, employees cannot “trade off” the right to take CFRA leave against some other benefit offered by the employer.

Employers Are Required to Post Notices

All employers are required to post notices informing employees of their CFRA rights. The posting must be in conspicuous places, and can be done electronically or physically. (sec. 11095(a).)

An employer must translate the notice into every language other than English that is spoken by at least 10 percent of its workforce at any facility.

The new CFRA Regulations are codified at Title 2, Code of California Regulations, sections 11087-11097.

CFRA notice and certification forms can be viewed here.

Please contact the authors for more information and regarding any questions about the new regulations.

Employment Law

Employment Law