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SB 1383: Small Businesses in California Must Prepare for Expanded Employee Leave Benefits Effective January 1, 2021

Author: Kyle R. Maland

Guest Editors: Sean McGah, Ashley Kaye

December 17, 2020 8:14am

On September 17, 2020, Governor Gavin Newsom signed into law new employer requirements for employee leave rights under the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA). The new law significantly increases the number of California employers subject to the CFRA and NPLA, placing new burdens on small businesses already fighting to keep their doors open.  The change requires California employers with as few as five employees to provide family and medical leave rights to their employees.

Under previously existing California law, employers were not required to provide family care and medical leave under the California Family Rights Act (CFRA) (Cal. Gov. Code section 12945.2), if the employee seeking leave worked at a worksite employing less than 50 employees within a 75-mile radius. Likewise, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA) (Cal. Gov. Code section 12945.6), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.

Effective January 1, 2021, Senate Bill 1383 repeals the California Family Rights Act (CFRA) and the New Parent Leave Act (“NPLA”) for the purpose of expanding small business leave obligations. Under the new laws, it is unlawful employment practice for any employer with five or more employees to refuse a request by an employee to take up to 12 work-weeks of unpaid protected leave during any 12-month period. Even though leave is unpaid, the employer must continue to maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level of coverage the employer would have provided if the employee had continued in employment continuously for the duration of leave.

The law also eliminates the 75-mile radius for purposes of counting employees. However, the new sections keep the requirement that to be eligible for leave, the employee must have at least 1,250 hours of service with the employer during the previous 12-month period.

In addition, the grounds for eligibility have also expanded. Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, a parent, spouse, or domestic partner. SB 1383 will permit employees leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.

Further, the law requires an employer that employs both parents of a child to grant leave to each employee. Currently, an employer is only required to grant both employees a combined total of 12 work-weeks of unpaid protected leave during the 12-month period.

Employers will also be required to grant up to 12 work-weeks of protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. This bill repeals sections 12954.6 and 12945.2 of the Government Code and instead implements a new CFRA under section 12945.2.

Takeaway

These new definitions bring the provisions of CFRA (which provides job-protection for unpaid leave) in line with California’s Paid Family Leave (PFL) law, which provides up to eight weeks of partial wage replacement benefits for a worker who takes time off to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner or to bond with a minor child. SB 1383 makes changes to CFRA that provide broader applicability than the Federal Family and Medical Leave Act (FMLA).

Additionally, it is possible an employee may theoretically take unpaid leave for one of the newly CFRA-covered events – such as caring for a sick grandparent – and then take additional leave for an FMLA-covered event, such as for the employee’s own medical issues.

California small businesses are encouraged to get an early start in creating compliant policies and procedures coming into effect starting January 1, 2021. Small business are encouraged to train supervisors and managers, as well as plan for staffing needs. Businesses already covered by the CFRA are encouraged to review and revise policies and procedures, as well as supervisor training materials, to ensure compliance with the CFRA’s expanded leave rights.

For questions on employment related matters, please contact Kyle R. Maland, Esq. at kmaland@tysonmendes.com.

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