Highlights of the new CFRA Regulations
June 22, 2015 by Dale Brodsky
Beeson, Tayer & Bodine Partner Dale Brodsky, who is a member of the Fair Employment and Housing Council recently issued a bulletin regarding upcoming CFRA changes.
The California Fair Employment and Housing Council recently amended the regulations interpreting the California Family Rights Act (CFRA). CFRA entitle individuals who work for companies with at least 50 employees to take a leave of absence up to 12-weeks, with a guaranteed right to return, for the birth, adoption, or foster care of a child, their own serious health condition or for the serious health condition of a child, parent, or spouse. CFRA is similar, but not identical, to the federal Family Medical Leave Act (FMLA), as are the regulations interpreting them. The Council’s new CFRA regulations, which had not been amended since 1995, are published in Title 2, Code of California Regulations, sections 11087- 11097, will take effect July 1, 2015.
The Council, whose seven members are appointed by the Governor, is the rule-making body whose statutory mandate is to adopt regulations for a variety of state civil rights laws including not only CFRA, but also the Fair Employment and Housing Act, the Unruh Civil Rights Act prohibiting discrimination in public accommodations and services, and the Ralph Act prohibiting violence because of political affiliation or protected bases. The Council is in the process of amending the existing employment discrimination regulations, also is preparing the State’s first-ever housing discrimination regulations. Information concerning the Council’s proposed rulemaking activities is available on the website of the Department of Fair Employment and Housing at dfeh.ca.gov.
The following are key components of the new CFRA regulations:
- Multiple legal business entities may be liable for violations of CFRA if they are joint or integrated employers, and successors in interest of a covered employer also may be liable for violating CFRA. (sec. 11087(d).)
- To be eligible for CFRA leave, an employee must have “actually worked” 1,250 hours during the 12-month period immediately prior to the date of the CFRA leave, as determined by the California Labor Code and Industrial Welfare Commission orders, not the federal Fair Labor Standards Act. (sec. 11087(e).)
- To be eligible for CFRA leave, an employee, or the employee’s parent, child or spouse must have a “serious health condition.” One of the ways to establish that a person has a “serious health condition” is to show it involves “inpatient care.” 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. This ensures consistency with Workers Compensation regulations, MediCal, and other state provisions. (sec. 11087(q)(1).)
Right to Reinstatement
- The right to reinstatement under CFRA means that the employee must be allowed to return to the “same position or to a comparable that is equivalent (i.e., virtually identical),” in terms of many factors, including pay, benefits, shift, geographical location, working conditions, privileges, perquisites, and status, and the duties of the new position must entail substantially equivalent skill, effort, responsibility, and authority. (sec. 11088(b).)
- If an employer seeks to deny reinstatement to a “key employee,” (i.e. in the top 10% of the salary earners) 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 option of returning from leave early (sec. 11089(d)(2).)
- If an employer alleges an employee fraudulently obtains CFRA leave is not entitled to the protections of CFRA, but the burden of proof is on the employer to prove the fraud. (sec. 11089(d)(3).)
Notice, Certification and Response
- An employee must provide at least enough verbal notice to make the employer aware that she or he needs a CFRA leave, but the employee does not have to use the words “CFRA” or “ FMLA,” and, if necessary, the employer should make further inquiry to determine if the employee is requesting CFRA leave. Merely mentioning “vacation,” resignation, or paid time off will not void the employee’s request, so long as the reason for the request is CFRA-qualifying and the employee communicates the reason to the employer. (sec. 11091(a)(1).) However, nothing in the regulations precludes an employee from affirmatively declining to take a CFRA leave. (see Escriba v. Foster Poultry Farms (9th Cir. 2014) 743 F.3d 126.)
- The employer must respond to an employee’s request for CFRA leave within five business days. (sec. 11091(a)(6).)
- An employer may require employees to provide medical certification of the employee’s serious health condition or that of a child, parent, or spouse. The employer is not permitted to directly contact a health care provider for any reason other than to authenticate the medical certification. (secs. 11091(b)(1) and (2).) A sample medical certification form is included in section 11097 of the regulations.
- If the employer has a “good faith, objective reason” to doubt the validity of the employee’s certification for his/her own serious health condition, the employer may require the employer to obtain second and third opinions, but it at the employer’s expense. (sec 11091(b)(2)(A)-(C).)
- 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. But, the employer may not require an employee to undergo a fitness-for-duty examination as a condition of returning from a CFRA leave. It is important to keep in mind that after the employee returns, the employer may require a fitness-for-duty exam, but it must be “job related and consistent with business necessity.” (secs. 11091(b)(2)(E) and (F).)
Paid or Unpaid Leave
- An employer is not required to pay an employee during a CFRA leave.
- 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 employee receives a partial wage replacement benefit (i.e. State Disability Insurance or Paid Family Leave) during the CFRA leave, the employee is not on “unpaid” leave. In that situation, the employer cannot require the employee to use vacation pay, sick leave, or other paid time off during the CFRA leave. But, the employer and employee may agree to have employer-paid leave supplement the partial wage replacement benefit. (sec. 11092(a).)
Provision of Health Benefits
- If an employer provides health benefits under any group health insurance plan, it must continue providing such benefits during an employee’s CFRA leave for up to 12 weeks. (sec. 11092(c).)
- 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. (sec. 11092(c)(5) and(6).)
Effect on Seniority and Benefits
- In general, during a CFRA leave, employees accrue seniority and other benefits to the same extent and under the same conditions that apply to 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; other CFRA leaves 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. (sec. 11092(e)(1).)
Pregnancy Disability Leave, CFRA Leave, and Non-Pregnancy-related 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. In contrast to the FMLA, which includes pregnancy-related conditions, 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. (secs. 11087(e)(3), 11093.)
- 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. (sec. 11044(c).)
- 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. (sec. 11093(c) and (e).)
Interference and Retaliation
- 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. (sec. 11094.)
Employer Notices Must Be Posted
- 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. (sec. 11095(c).)
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.