California to Probably Broaden Household and Medical Depart Entitlements

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California is likely to significantly expand its family and sick leave laws by expanding the requirement to provide sheltered work leave for small businesses with only five employees, allowing additional-reason leave, and eliminating certain exemptions from employer's obligations on leave .

Current law

The California Family Rights Act (“CFRA”) requires companies with 50 or more employees within a 75 mile radius to grant 12 weeks of unpaid sheltered vacation employees who have worked 1,250 hours in the past within a 12 month period, if any required by the employee's own severe health to bond with a new child or to care for a qualified family member with a severe health. Applying the CFRA only to companies with 50 or more employees within a 75 mile radius complies with the requirements of the Federal Family and Sick Leave Act ("FMLA").

In 2018, California passed the New Parent Leave Act, which expanded the requirement to provide 12 working weeks of unpaid sheltered leave to bond a new child to businesses with only 20 employees within a 75 mile radius.

S.B. 1383

S.B. 1383, currently ahead of Governor Newsom's enactment, will expand the current law on a number of important points.

First, the law would expand which companies must grant family and sick leave that is protected against work.

  • B. 1383 defines employers as those with 5 or more employees. It is not required that these 5 employees be within 75 miles of each other. This means that small businesses with as few as 5 employees across the organization must grant eligible employees 12 weeks of sheltered vacation under the CFRA. This also means that employees of larger companies who work alone or in smaller locations are now insured.

In addition, S.B. 1383 expands the reasons why employees can take sheltered leave under the CFRA.

  • B. 1383 expands the family members that employees can take CFRA leave to provide care. Currently, the only family members for whom employees can take CFRA leave are the employee's parent, child, spouse, or domestic partner. Under S.B. 1383 employees can also take vacation time to care for a grandparent, grandchild, or sibling with severe health problems. In particular, the FMLA does not provide for permission to care for a grandparent, grandson or sibling, which means that employees who take CFRA leave to care for a grandparent, grandchild or sibling still have 12 weeks of health and safety leave from other qualifying persons Reasons when they are eligible for FMLA leave.
  • B. 1383 also provides for 12 working weeks of unpaid sheltered leave during a 12 month period as a qualified need related to insured active service or the call to covered active service of a worker's spouse, domestic partner, child or parent for the United Forces States. Vacations for this reason are largely covered by the FMLA, so these sheets can run concurrently with the FMLA vacation if the vacation is protectable under both laws.

S.B. 1383 also removes two existing CFRA exceptions.

  • If the employer employs both parents of a child, the employer can currently limit the total amount of vacation the parents take to bond with the child to a total of 12 working weeks. B. 1383 removes this restriction, which means that the employer would be required to give both parents up to 12 weeks' leave – possibly at the same time.
  • B. 1383 also removes the current key employee exception, which allows employers to refuse to reinstate employees who are among the highest paid 10 percent of the company's employees within a 75 mile radius. As suggested by S.B. In 1383, the CFRA would no longer include an exception for “key employees”.

Certain parts of the CFRA would be named S.B. 1383. Employees must have been employed for at least 12 months and have worked at least 1,250 hours in the last 12 months in order to be entitled to vacation. In addition, if the vacation is eligible for FMLA protection, the CFRA vacation may still run concurrently with the FMLA vacation, with the exception of vacation taken under the FMLA for disability due to pregnancy, childbirth, or similar medical conditions. The employee's obligation to provide notification and documentation also remains.

When S.B. 1383, smaller companies must draft CFRA vacation policies and initiate vacation procedures, and approve, manage, and track employee vacation after the law goes into effect. Larger companies will also need to update their CFRA policies and forms as employees can take leave for additional reasons and existing exemptions no longer apply.

When enacted, S.B. 1383 would take effect on January 1, 2021.

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