California Family Rights Act

(Unpaid leaves of absence from work for the birth of a child; for adopting a child, or for foster care placement of a child; to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner with a serious health condition; if the employee has a serious health condition; or an emergency because employee's spouse, domestic partner, son or daughter, or parent is on active duty in the Armed Forces)

The California Family Rights Act, with some deviations, follows the Family Medical Leave Act, and so language and examples from both Acts often apply to similar situations.

To better protect California workers, on September 17, 2020, California Governor Gavin Christopher Newsom approved Senate Bill No. 1383. Senate Bill No. 1383 significantly expands the California Family Rights Act family and medical leave law under Government Code section 12945.2 on a number of fronts.

The highlights of the new law, which went into effect on January 1, 2021, are as follows

• All private-sector employers with 5 or more employees within the state of California must provide their employees with unpaid family/medical leave.
• Leave for the care of a family member with a serious medical condition has been expanded to include grandparents, grandchildren, siblings, and adult non-dependent children.
• Leave rights for specific exigencies related to military service.
• A guarantee of reinstatement to the same or a comparable position upon end of the leave for all eligible employees

California Family Rights Act ("CFRA") (Cal. Government Code §§ 12945.1, 12945.2, and 19702.3):

An employee is eligible for unpaid leave under the CFRA if:

• The employee has more than 12 months of service and 1,250 hours worked for the employer in the previous 12-month period (eligibility requirements are different for employees employed by an air carrier as a flight deck or cabin crew member. Cal. Government Code § 12945.2(r)); and
• The employer of the employee directly employs five (5) or more persons working anywhere in California to perform services for a wage or salary. Cal. Government Code § 12945.2(a).

An employee under the CFRA is entitled to a total of 12 workweeks of leave in any 12-month period for one or more of the following reasons:

• Birth of a child of the employee, in order to care for a child.
• Placing a child with the employee for adoption or foster care. Cal. Government Code § 12945.2(b)(4)(A).
• To care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner of the employee who has a serious health condition. Cal. Government Code § 12945.2(b)(4)(B); 2 Cal. Code of Regulations § 11087(i).
• To care for the employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee. Cal. Government Code § 12945.2(b)(4)(C).
• An exigency (e.g. the immediate need to provide childcare related to a call to active military duty), related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child or parent in the Armed Forces of the United States. Cal. Government Code § 12945.2(b)(4)(D).

"Child" means a "biological, adopted, or foster child, a stepchild, a legal ward, a child of an employee or the employee's domestic partner, or a person to whom the employee stands in loco parentis," and applies to children of all ages, whether they are minors or adults. 2 Cal. Code of Regulations § 11087(c). "Loco Parentis" means in the place of a parent. It does not require a biological or legal relationship. 2 Cal. Code of Regulations § 11087(c).

"To care for" includes physical and psychological care. 29 Code of Federal Regulations 825.124(a). Examples include situations where the family member is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor," "providing psychological comfort and reassurance which would be beneficial to a [family member] with a serious health condition who is receiving inpatient or home care," and when the employee needs to be a "substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home." 29 Code of Federal Regulations 825.124.

• An eligible employee shall be entitled to a leave of absence if the employee is unable to perform any one or more of the essential functions of their job because of a serious health condition. 2 Cal. Code of Regulations § 11087(a)(2).
  A "Serious health condition" is "an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a family member of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse" 2 Cal. Code of Regulations § 11087(u). Examples include:
• Periods of incapacity, being unable to work, attend school or perform other regular daily activities due to a serious health condition, its treatment, or the recovery it requires. 2 Cal. Code of Regulations § 11087(u).
• A husband is entitled to a leave of absence to care for his pregnant spouse if she is incapacitated or if the leave is needed to care for her during her prenatal care, or if it is needed to care for his pregnant spouse after the birth of the child if the spouse has a serious health condition. 29 Code of Federal Regulations 825.120.
• Chronic conditions that cause employees episodic periods of incapacity and require them to seek treatment, such as asthma, diabetes, and epilepsy. 2 Cal. Code of Regulations § 11097.
• Incapacity (being unable to work, attend school or perform other regular daily activities) from "permanent/Long-term conditions . . . for which treatment may not be effective." Such include but are not limited to Alzheimer's, a severe stroke, or the terminal stages of a disease. 2 Cal. Code of Regulations § 11097.
• Periods of absence to receive multiple treatments from health care providers, which includes any period of time needed to recover, these conditions include: "restorative surgery after an accident or other injury," or a condition that without treatment would likely result in a period of incapacity lasting longer than three consecutive days, such includes but is not limited to cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis). 2 Cal. Code of Regulations § 11097.
• An eligible employee shall also be entitled to a leave of absence if a qualifying emergency has happened because the employee's spouse, domestic partner, child, or parent is on active duty in the Armed Forces. Cal. Government Code § 12945.2(b)(4)(D).

Under the CFRA an employee is not required to take their leave of absence all at one time. The employee may take the leave intermittently or on a reduced leave schedule. Intermittent leave is leave taken in separate blocks of time. A reduced leave schedule reduces an employee's usual number of working hours per workweek, or hours per workday. 2 Cal. Code of Regulations § 11090.

For an employee to receive leave covered under the CFRA from his or her employer, the employee must give the employer notice, either verbal or written. The employee's notice must let the employer know the reason for the leave that is covered by CFRA. The notice must also contain the timing and duration the employee anticipates the leave to take up. 2 Cal. Code of Regulations §11091.

When an employee comes back from CFRA leave, he or she is entitled to be reinstated by the employer to their same position or a comparable position. Cal. Government Code § 12945.2(a). The comparable position is a position that has "similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave." Cal. Government Code § 12945.2(b)(5). The employer must also upon request of the employee provide the employee with a written guarantee saying that the employee will be reinstated after his or her leave to the same position or a comparable position. 2 Cal. Code of Regulations § 11089.

If you have been denied a request for CFRA leave, or you have experienced negative treatment or termination from having taken a CFRA leave at your workplace, contact the respected CFRA leave lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.