May 6, 2015
The Fair Employment and Housing Council’s amendments to CFRA regulations take effect July 1, 2015. The amended regulations clarify certain CFRA provisions to help employers and employees understand their rights and obligations under the law, and align portions of the CFRA more closely with the federal Family and Medical Leave Act (“FMLA”), though differences remain. The key changes to the CFRA regulations are summarized here.
Eligibility and Posting Requirements
The definition of “covered employer” will include successors in interest of a covered employer and joint employers. The definition of “eligible employee” is amended to clarify eligibility issues related to the 12-month employment requirement, a break in service, a worksite if the employee does not have a fixed worksite or is jointly employed, and leave for employees who have not met the 12-month requirement. The definition of “spouse” will include same-sex spouses.
Employers may now electronically post required CFRA notices, which must be posted in every language that is spoken by at least 10 percent of the workforce.
Computation of Time Periods
The regulations require employers to give notice of the method used to calculate the 12-month period, and to apply this method uniformly. If an employer changes its calculation method, the employer must give employees 60 days’ advance notice. If an employee’s schedule varies from week to week, a weekly average of hours over the 12 months prior to the leave is used to calculate the leave entitlement. Employers may count expected overtime work against the employee’s CFRA entitlement. If the employer makes a permanent or long-term change to the employee’s schedule, other than for purposes of the CFRA, the hours worked under the new schedule are used for calculating CFRA entitlement.
When an employee who takes intermittent leave or reduced schedule leave is physically unable to start or end work mid-way through a shift (for example, a flight attendant), the entire period the employee is forced to be absent is designated as CFRA leave and counts against the employee’s CFRA entitlement. The employee must be permitted to return to work if he or she can perform other aspects of the work that are not physically impossible, such as administrative duties.
Requests for Leave and Certification of Health Care Provider
As before, an employee need not specifically request CFRA leave or refer to the statute to trigger CFRA rights. The regulations require an employer to inquire when it is unclear whether the employee is requesting CFRA leave, and the employee must provide an answer. For example, if an employee requests time off for vacation or sick leave, and gives a CFRA-qualifying reason, the employer must treat the leave as CFRA leave. However, when an employer cannot determine if the requested time off qualifies for CFRA leave, and the employee refuses to answer the employer’s questions, the employee’s failure to respond may result in denial of CFRA protection.
The regulations now prohibit an employer from contacting a health care provider for any reason other than to authenticate a medical certification, and the employer must have “a good faith, objective reason” to doubt the validity of a medical certification before seeking a second opinion. A new “Certification of Health Care Provider” form is now available and should be used.
An employer is not entitled to require a release to return to work for each absence taken on an intermittent or reduced schedule unless there is a reasonable safety concern about the employee’s ability to perform duties, in which case the release can be requested every 30 days.
Terms of CFRA Leave
An employer may require an employee to use accrued vacation time or paid time off available to the employee during CFRA leave. The employer may require use of accrued sick leave if the CFRA leave is for the employee’s own serious health condition or if the parties agree on use of sick leave for another reason. However, an employer cannot require an employee to concurrently use paid time off, sick leave, or accrued vacation when the employee is not on unpaid leave. For example, an employee receiving any form of employer-provided short-term or long-term disability payments is not on unpaid leave.
Regulations regarding the relationship between CFRA leave and pregnancy disability leave remain unchanged. However, the amendments clarify that the maximum entitlement to pregnancy disability leave (4 months) and CFRA leave (12 weeks) do not include leave provided as a reasonable accommodation for a physical or mental disability under the Fair Employment and Housing Act. Therefore, employers must treat CFRA, pregnancy disability, and FEHA disability accommodation leaves as separate entitlements.
The employer must maintain an employee’s group health benefits for the entire time an employee is on pregnancy disability leave and a subsequent CFRA leave. This requirement applies when an employee uses pregnancy disability leave under the FMLA.
Reinstatement and Protection from Retaliation or Interference with CFRA Rights
The new regulations expand the guarantee to reinstatement and rights upon return. An employee is entitled to reinstatement even if the employee has been replaced or the position has been restructured to accommodate for the employee’s absence. Additionally, if the employee is no longer qualified for the position because the employee did not receive certain training or certification as a result of the leave, the employer must give the employee an opportunity to fulfill the qualifications.
Upon return to work, the employee is entitled to the same or a comparable position. The regulations address permissible defenses to an employer’s refusal to reinstate an employee, including a “key employee.” The regulations deny job restoration and maintenance of health benefits to employees who fraudulently obtain or use CFRA leave.
The amendments expand protection against retaliation and interference with an employee’s CFRA rights. Interference is any action by a covered employer to avoid responsibilities under CFRA. All individuals, not merely employees who are CFRA-qualified, are protected from retaliation. An employee cannot waive or be induced to waive CFRA rights (settlement or release of CFRA claims by employees based on past employer conduct is still permitted).
California public and private sector employers should review their policies, collective bargaining agreements, handbooks, and employee notices to ensure they do not conflict with the new CFRA regulations. As always, we are available to assist with this review and to help ensure compliance with the new regulations.