Are Your California Leave Policies Up to Date? New California Family Rights Act Regulations Take Effect July 1, 2015

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The California Fair Employment and Housing Council recently issued new California Family Rights Act (“CFRA”) regulations that take effect July 1, 2015. The new revisions are intended to clarify confusing rules and align the regulations more closely with the federal Family and Medical Leave Act (“FMLA”) regulations (where the statutes are consistent), though differences still remain between CFRA and FMLA.

As a reminder, CFRA applies to employers who do business in California and employ 50 or more part-time or full-time employees. It provides eligible employees with leave rights for the following: (1) birth of a child for purposes of bonding, (2) placement of a child in the employee’s family for adoption or foster care, (3) for the serious health condition of the employee’s child, parent or spouse, and (4) for the employee’s own serious health condition.

The regulations include wide-ranging substantive changes. For example, the regulations now explain in detail how an employer can violate CFRA by “interfering” with an employee’s CFRA rights, and clarify that all employees, not merely employees eligible for CFRA, are protected from retaliation for opposing any practice unlawful under CFRA. Some other key provisions of the new regulations include:

  • Covered Employers: The regulations expand the definition of covered employer to include “successors in interest” of a covered employer and joint employers.
  • Definitions: The regulations revise the definitions of serious health condition, inpatient care, eligible employee, and spouse, among others.
  • Key Employee: The regulations revise the provisions regarding the refusal to reinstate a “key employee.”
  • Posting and Notice Requirements: Employers must now respond to requests to take CFRA leave within five business days (up from 10 calendar days previously required). Employers must also post notices explaining CFRA in conspicuous places where they can be seen by employees and applicants for employment.
  • Health Care Coverage: The regulations expand and clarify when and how an employer must maintain group health plan coverage for employees on CFRA leave.
  • Use of Paid Leave: The regulations clarify that an employee receiving any form of disability payments or Paid Family Leave insurance while on CFRA leave is not on an “unpaid leave” and thus cannot be required to use PTO, accrued vacation, or sick leave.
  • Fitness for Duty/Return to Work: The regulations discuss whether, when, and under what circumstance an employer may ask an employee to undergo a fitness-for-duty examination before returning to work.
  • Disability Leave: The regulations now explicitly state that if an employee has a serious health condition that also qualifies as a disability under California law and cannot return to work at the conclusion of their CFRA leave, the employer has an obligation to engage in the interactive process to determine whether an extension of the leave would qualify as a reasonable accommodation under FEHA.
  • Calculation of Leave and Intermittent Leave: The regulations expand and clarify how to calculate CFRA leave and the use of intermittent leave.

You can find the new regulations on the California Department of Fair Employment and Housing’s website, located here.