Update: California Legislature Proposes Major Expansion to the California Family Rights Act

09.15.2020

On September 4, the California Legislature sent SB 1383 to Governor Gavin Newsom for final approval or veto. SB 1383 would expand the California Family Rights Act (“CFRA”) to cover small employers and expand family leave rights to include care for siblings, grandparents, and grandchildren. SB 1383 would represent a dramatic expansion of the CFRA, which is California’s state law version of the federal Family Medical Leave Act (“FMLA”). SB 1383 would take effective on January 1, 2021.

SB 1383 would expand CFRA coverage to include any employer employing five or more employees. Currently, CFRA applies to a given worksite only if the employer employed at least 50 employees within 75 miles of that worksite. As a result, CFRA excludes most small businesses and many satellite offices of mid-size and larger businesses. SB 1383 would undoubtedly bring thousands of new employers within the ambit of the CFRA.

SB 1383 provides that eligible employees will be able to take CFRA family medical leave to care for grandparents, siblings, and grandchildren. Currently, eligible employees can only take CFRA family medical leave to care for children, parents, and spouses, or because of the employee’s own serious health condition.

SB 1383 also would expand the baby bonding leave rights of employees of small employers. For a long time, CFRA has allowed eligible new parents to take 12 weeks of unpaid leave for baby bonding within one year of the birth or adoption of a child. When combined with pregnancy-disability leave, an eligible new mother could take up to 29 1/3 weeks of combined pregnancy-disability leave and CFRA baby bonding leave following childbirth. If the Governor signs SB 1383, employers with five or more employees will also be required to make this combined leave period available to new mothers.

In addition, under current law, if both new parents work for the same employer, the employer is only required to provide a combined total of 12 weeks of CFRA baby-bonding leave to both parents. SB 1383 requires that an employer provide 12 weeks of CFRA baby bonding leave to each parent.

CFRA leave is unpaid leave, but an employer must continue to pay its share of the employee’s health insurance premiums during the leave. CFRA leave can often be taken on an intermittent basis. With limited exceptions, employees returning from CFRA leave are entitled to reinstatement to the same job position or to a comparable job position.

On September 11, the Governor signed a related bill, AB 1867, which would create a pilot mediation program for employers with between 5 and 19 employees if SB 1383 is also signed. Under the proposed law, an eligible employer may insist on non-binding mediation of any CFRA claim before the employee can pursue a lawsuit. While SB 1383’s expansion of CFRA coverage would be permanent, the mediation-exhaustion requirement and the pilot mediation program provided for in AB 1867 are scheduled to end on January 1, 2024.