Updates to the California Family Rights Act ("CFRA") regulations have been approved and are set to take effect on July 1, 2015. The new CFRA regulations are largely focused on harmonizing an employer’s obligations under CFRA and the federal Family and Medical Leave Act ("FMLA"). Both laws apply only to employers with fifty or more employees.
The key updates to align the CFRA and the FMLA are as follows:
- The definition of “covered employer” adds guidance for joint employer settings—when two or more businesses exercise control over the employee’s work or working conditions then both may be considered joint employers under the CFRA.
- The definition of “eligible employee” clarifies the 12 month length of service requirement and explains how to determine whether there are 50 employees within a 75 mile radius for an employee who has no fixed worksite—the regulations clarify that if a person works from home, the worksite to which they are assigned as their home base, from which their work is assigned or to which they report is their worksite, not their home office.
- If an employee does not have the twelve month length of service to qualify for a CFRA leave at the start of a leave but reaches the 12 month service requirement during the leave, the employer must provide CFRA leave when the employee qualifies.
Notwithstanding these updates, there remain a number of key differences between FMLA and CFRA entitlements. Some of the notable differences that remain are:
- Pregnancy disability is not covered under CFRA. Pregnancy disability is covered under the FMLA. The CFRA regulations clarify, consistent with prior clarifications, that an employer must maintain an employee’s group health benefits for the entire time the employee is on pregnancy disability (a maximum of four months) and also during any additional CFRA leave (a maximum of 12 weeks).
- The CFRA only permits an employer to contact an employee’s medical provider to authenticate a medical certification. Under the new CFRA regulations, the employer is not permitted to seek “clarification” of the medical certification. This contrasts with the FMLA which permits the employer to contact the medical provider for authentication and clarification.
- Under the CFRA, an employer may not seek a second medical opinion unless it has a “good faith, objective reason” to doubt the employee’s original medical certification. The standard under the FMLA permits an employer to seek a second medical opinion when it has “reason to doubt” the employee provided certification.
- The CFRA provides slightly less discretion than the FMLA for the employer to substitute the employee’s paid sick leave for unpaid CFRA leave. For an employee’s own serious health condition, the employer may require the employee to use paid sick leave. For CFRA leave for any other reason, the employer cannot force the employee to use paid sick leave. An employer may require an employee to use accrued vacation or PTO for any unpaid CFRA leave.
Administration of medical and other leaves is a complex process full of legal pitfalls. In light of the new CFRA regulations, covered employers should begin the process of updating their FMLA/CFRA policies to ensure compliance. In addition, employers should also be ready to replace their workplace posters and medical certification forms on July 1, 2015.