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October 2020

Leave Requirements Under the California Family Rights Act Expand to Cover California’s Smallest Employers

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 into law. Under the new legislation, the California Family Rights Act (“CFRA”) will now make it unlawful for employers with five or more employees to refuse to grant qualifying employees with up to 12 workweeks of unpaid protected leave beginning January 1, 2021. The CFRA previously only applied to employers with 50 or more employees.

In addition, the CFRA previously only encompassed leave for an employee’s own “serious health condition,” the serious health condition of a spouse, child or parent, or the birth of a child.  Now, the CFRA will also require employers with five or more employees to grant leave to an employee to care for the serious health condition of the employee’s grandparents, grandchildren and siblings. 

The impact of the new legislation will be widespread. Of California’s approximately 1.6 million employers, approximately 173,000 have between five and 10 employees, with thousands more in the 10 to 50 employee range.  Each of these employers will need to be prepared to comply with CFRA leave requirements which, until January 1, 2021, had never applied to them.

Intersecting with this legislation is Assembly Bill 1867, which was signed into law and immediately came into effect on September 9, 2020.  The legislation may absorb some of the impact of SB 1383 for small employers as it requires California’s Department of Fair Employment and Housing (“DFEH”) to create a mediation pilot program for employers with five to 19 employees. 

Under the program, such an employer may request that all parties participate in the DFEH’s mediation program within 30 days of receipt of a right-to-sue notice alleging a violation of the CFRA.  Once the employer requests mediation, the employee is then precluded from pursuing a civil action until mediation is complete.  However, the effectiveness of such programs in reducing litigation arising from the newly expanded CFRA will remain to be seen until 2021.

Given the ever growing complexity and relevance of California leave laws, we encourage employers of all sizes to review their own policies and practices to ensure they are current. Employers with five or more employees should consult with counsel as to the best way to effectuate and integrate these new requirements into their operations. Having a clear policy in place and documenting compliance will be essential measures given the prevalence of leave-related lawsuits in California.

Employment Law

Brandon D. Saxon

Employment Law