There are changes to California’s Family Rights Act (CFRA) as a result of Senate Bill 1383 that all employers need to be aware of.
Under CFRA, employers of five or more employees of must provide up to 12 weeks of unpaid leave during each 12-month period for purposes of family and medical leave.
CFRA expands the ways that both small and large California employers need to prepare for. These major changes include: (1) CFRA now applies to employers with five or more employees, and (2) the scope of “family members” for whom employees can take leave has been expanded to include additional categories.
These changes are scheduled to go into effect on January 1, 2021. This means covered California employers must be prepared to act and ensure their policies and practices are compliant.
Step-by-Step Compliance Checklist
Tips to avoid common CFRA management mistakes
Use this guide to navigate the complexities of CFRA compliance as of January 1, 2021, including determining employee eligibility, meeting time-sensitive obligations and managing leave.
Ensure completion of all necessary documentation for leave requests.
All employers covered by CFRA must post this information in a conspicuous place where employees tend to gather.
This is a two-step process: employee notice of the need for a CFRA leave and employer designation of the leave as CFRA leave.
Follow a two-part documentation process. The employer must designate the leave in writing as required at the onset of the request, as well as determine eligibility and provide a copy of the employee rights and responsibilities form. Once the employee provides certification from the health care provider of the need for leave, the employer must determine and notify the employee of the CFRA leave entitlement.
If an employer fails this process, any prior leave taken may not count against the 12-week maximum unless it is formally designated as CFRA leave in writing.
CFRA regulations provide that 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 designate the leave in a timely manner does not cause harm or injury to the employee.
In general, there is no rule that an employee may not work for another employer while on leave unless a written policy prohibits it. An employer may not discipline or terminate an employee for working for another employer while on CFRA leave if there is no written policy against it.
If an eligible employee is out of work because of a serious injury, this would qualify as a serious health condition under CFRA.
In the event an employee isn’t eligible for CFRA leave, an employer would initiate the interactive process to determine if the leave is a reasonable accommodation. The employer should conduct an assessment to determine how much leave the employee needs and whether such leave will result in an undue hardship. Employers who consider an accommodation to be an undue hardship should seek counsel of an employment law attorney prior to the denial of an accommodation undue hardship.
Qualifying employees may request intermittent leave if, for example, their condition requires ongoing medical treatment, if they have a chronic condition, etc. It will be important for an employee to provide health care provider certification for the need for intermittent leave and communicate when they are taking CFRA-designated leave for tracking.
Employers may require employees to provide as much advance notice as possible before taking leave, but if advance notice is not possible, employees are protected under CFRA leave.
Employers may not terminate an employee for taking CFRA-designated intermittent leave.
Prior to or during an employee’s leave of absence is not the time to evaluate an employee’s past performance. Because of the risk of liability, employers who are considering terminating the employment of an employee on leave are highly encouraged to seek counsel of an employment attorney before doing so.
Employers are advised against any automatic termination when an employee fails to return on the designated date of return. If an employee still has leave available, the employer must provide the employee a written notice directing the employee to respond within15-days with a new medical certification requesting additional leave.
The 15-day rule does not apply to non-CFRA leave, but as a best practice an employer should contact the employee and provide a reasonable amount of time to produce a new medical certification before considering any termination.
Employers may not require an employee to be 100% healed or free of restrictions prior to returning to work. Employers must initiate the interactive process to determine if restrictions can be accommodated in the employee’s current or another job.
Employers are not required to create a lighter-duty position to accommodate an injured employee.
An employer’s fear of re-injury is not a valid reason not to reinstate an employee who is released to return to work with restrictions.
Under CFRA you may require an employee returning from leave to provide a medical release but you may not send the employee for a fitness-for-duty exam upon return from leave unless, by objective evidence the employee is unable to perform the duties of the position without serious harm to themselves or others.