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California's protected unpaid family leave extended to employees of smallest businesses

September 22, 2020 8146

Very small businesses, including dental practices with just five or more employees, will soon be subject to the California Family Rights Act’s requirement to provide protected unpaid family leave to their employees.

The CFRA provides employees up to 12 workweeks of protected unpaid leave that employees can take for the birth, adoption or foster care placement of a child or for a serious health condition of the employee or a specified family member. The leave is unpaid but “protected,” meaning the employer must hold the employee’s job and maintain the employee’s benefits until they return ― up to a maximum of 12 weeks.

Currently, the CFRA’s provisions apply to employers with 50 or more employees, but last week Gov. Gavin Newsom signed into law Senate Bill 1383 by Sen. Hannah-Beth Jackson (D-Santa Barbara), which lowers the threshold to employers with five or more employees and expands the qualifying family members for whom an employee can take leave to provide care for. The expanded list of qualifying family members now includes child, parent, grandparent, grandchild, sibling, spouse and domestic partner.

The bill takes effect Jan. 1, 2021.

CDA urged amendments to lessen impact on dental practices

CDA and a large coalition of small-business groups opposed SB 1383 because of the anticipated major and long-term impact of the bill on the smallest businesses.

In the small dental practice, for example, there is typically little crossover between staff roles. Licensed hygienist and dental assistant positions require specific and extensive training; therefore, staff without that training cannot cover the duties of an RDH or dental assistant who is on leave.

CDA had urged legislators to amend the bill to raise the employee threshold from five employees to 20 at minimum to spare very small businesses like dental practices that are having to make long-term decisions about their financial liability in the COVID era. CDA also asked that the bill’s implementation be delayed by one or two years or that a hardship exemption for small businesses with fewer than 20 employees be established. However, the bill narrowly passed the State Assembly Aug. 31 without any amendments.

State-run mediation program established for alleged CFRA violations

Separate legislation signed last week by the governor addresses concerns about the liability of small businesses if they fail to comply with the CFRA. 

Assembly Bill 1867 includes a state-run mediation program for alleged CFRA violations. For employers with five to 19 employees, if an employee alleges that a CFRA violation occurred, the employer and the employee will have the option to enter a mediation program operated by the Department of Fair Employment and Housing. Both parties will be prohibited from entering into civil court procedures unless DFEH determines that they have exhausted their mediation efforts. More details on this program will become available in the coming months.

CDA Practice Support is creating and will share resources to educate members and help them transition to the new requirement ahead of the January 2021 effective date. 

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