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New California Family Rights Act Regulations

The California Fair Employment and Housing Councils updated the California Family Rights Act ("CFRA") regulations. These updates have been approved and are effective as of July 1, 2015. There are significant amendments made to clarify certain CFRA provisions and to align the CFRA more closely with the federal Family and Medical Leave Act ("FMLA"). However, there still remain significant distinctions between the two laws. Below is a brief review of Amendments that were made help clarify CFRA regulations:

Covered Employer: This amendment now includes successors in interest of a covered employer and joint employer. There is no criteria provided in the new regulations for determining if a joint employer relationship exists; rather the relationship is "to be viewed in its totality based on the economic realities of the situation."

Spouse: Amended to cover spouses in legal, same sex marriages and domestic partners

Key Employee: Employees paid on a salary basis and are among the highest paid 10 percent of the workforce are considered to be key employees. The amendments provide more requirements for an employer's defense of refusal to reinstate a key employee upon returning from CFRA leave if it would cause a "substantial and grievous economic injury to the operations of the employer."

Fraudulent Use of CFRA Leave: This regulation prevents employees who fraudulently obtain or use CFRA leave from job restoration and maintenance of health benefits. This is a defense for the employer who holds the burden of proving the employee committed the fraudulent conduct.

Calculating Leave Entitlement: The 12-month measuring period for CFRA leave may be: (1) the calendar year; (2) any fixes 12-month leave year; (3) the 12-month period, which is measured forward from when the employee's CFRA leave first beings; or (4) a rolling 12-month period, which is measured backward from the date the employee uses CFRA leave. If an employer fails to designate one of these period to measure, the method that is the most beneficial to the employee will be used. If the employer later decides to change its measuring period, they must provide the employees with a 60 days' notice and ensure they receive their full 12-week benefit.

Intermittent Leave: If it is physically impossible for an employee to use intermittent leave or work a reduced schedule/modified shifts, then the entire period the employee is absent may be considered to be CFRA leave and count against the employee's CFRA entitlement. If an employee is able to perform other aspects of his or her work, he or she shall be permitted to return to work, thereby shortening the employees CFRA leave.

Overtime: If an employee normally is required to work overtime but cannot due to a CFRA qualified reason, the non-worked overtime hours can be counted against the employees CFRA entitlement.

Substitution of Paid Leave for Unpaid Leave: The amendment expands use of accrued vacation time or other paid accrued time off for an otherwise unpaid portion of CFRA leave.

Job Restoration: The employer is required to engage an employee in the process to determine whether the extension of leave would constitute a reasonable accommodation where the employee has a serious health condition that also constitutes a disability under California Fair Employment and Housing Act (FEHA) and cannot return to work upon the end of his or her CFRA leave.

Group Health Coverage: The amendments extend the continuation of group health plan coverage for employees who are on CFRA leave and enforce certain regulations depending on whether the CFRA leave is paid or unpaid.

Retaliation and Protection from Interference: The amendments expand the prohibition against the definition of retaliation for an employee who exercises his or her rights under CFRA. "Interfering with" those rights includes refusing to authorize CFRA leave and discouraging an employee from using CFRA leave. The amendment also provides that employers cannot induce employees to waive CFRA rights and that an employee cannot waive his or her rights under CFRA.

Certification Requirements: The requirements regarding medical certifications was amended to include where an employee is "unable to perform his or her position" shall mean that an employee cannot perform one or more essential functions of his or her positions.

Posting: The amendments allow electronic posting of CFRA notices and requires employers to translate the CFRA notice into every language spoken by at least 10 percent of its workforce.

As the CFRA implementation of the amendments has become effective as of July 1, 2015, covered employers should take steps to ensure they are in compliance.

Sagaser, Watkins & Wieland PC represents businesses in all aspects of California employment law. If you have questions about your workplace obligations, please contact any of our attorneys at (559) 421-7000. http://www.sagaserlaw.com/Counseling-Employers-On-Human-Resource-Policy-Matters-Employee-Relations.shtml 

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