2014, the Fair Employment and Housing Council (FEHC) proposed amendments to the California Family Rights Act (CFRA) regulations. The Office of Administrative Law recently approved the new regulations, which incorporate recent changes to the federal Family and Medical Leave Act (FMLA) regulations and relevant court decisions. The new regulations become effective on July 1, 2015.
The FEHC is likely to provide guidance regarding the new regulations in the coming months. In the meantime, this article summarizes some of the most significant changes.
Changes to the Regulations
CFRA Coverage. The new regulations amend the definition of “covered employer” to include successors-in-interest and joint employers. There are not any factors to determine “joint employer status; the relationship “is to be viewed in its totality based on the economic realities of the situation. The regulations also state that an employee must be employed for at least 12 months (not “more than” 12 months as the current regulations provide) to meet the CFRA’s service eligibility requirements.
Requesting Leave. If an employee communicates a need for leave that could qualify under the CFRA, the employer must inquire to determine whether the CFRA is applicable and whether the employee seeks to take CFRA job-protected leave. The employer’s obligation does not change if the employee requests vacation, paid time off, or expresses intent to resign.
Benefit Continuation and Pregnancy Disability Leave. The new regulations clarify that pregnant employees are entitled to the continuation of health insurance benefits (at the same level as if they were actively working) for the entire duration of PDL and any CFRA-bonding time (up to 12 weeks).
Employees who retire while on CFRA leave, or during the first 30 days after returning to work, or who cannot return to work for medical reasons, are not required to repay the employer’s cost of maintaining healthcare coverage.
Interference with CFRA Rights. Employers may not transfer employees from a worksite to prevent coverage of the CFRA. Employers also may not change the essential functions of a job to prevent an employee from taking leave or reduce an employee’s hours so the employee cannot meet the 1250-hour eligibility threshold. Finally, (not surprisingly) employers may not terminate employees who it anticipates may seek CFRA leave in the future.
Abuse of CFRA Leave. An employee who “fraudulently” obtains or uses CFRA leave is not protected by the law. Of course, the burden is on the employer to prove “fraud.” Also, absent “extenuating circumstances,” if an employee fails to return a medical certification within 15 days of the employer’s request, the employer may deny leave and hold the employee accountable under its attendance policy.
Salary Deductions. Employers may make partial-day deductions from the salary of an exempt employee who is on an intermittent or reduced schedule CFRA leave if the employee has no paid time off available. The FMLA already allows such deductions.
Stronger Reinstatement Rights. Employees returning from CFRA leave must be reinstated to their prior positions even if the employer restructured the position to accommodate the employee’s leave. In addition, if, at the time of reinstatement, an employee is no longer qualified for a position because of an inability to attend a course, renew a license, or satisfy another prerequisite due to his or her leave, the employee must be given a “reasonable opportunity” to fulfill those conditions.
Medical Documentation. Unlike the FMLA, California employers may only contact an employee’s health care provider to authenticate or validate a medical certification.
Second Opinions. For leaves based on an employee’s own serious health condition, employers must now have a “good faith, objective reason” to seek a second opinion. Employers are still not permitted to seek second opinions when an employee uses CFRA leave to care for a covered family member.
Changes to Forms. The new regulations revise the form provided to pregnant employees (Notice B for CFRA-covered employers), and provide a new model medical certification that can be given to healthcare providers. These forms are available within the new regulations at Cal. Code Regs. Tit. 2, §§ 11095(d) and 11097, respectively. Employers may use these models, an equivalent form, or create their own. The Department of Fair Employment and Housing posts model forms on its website at https://www.dfeh.ca.gov/Publications_Publications.htm.
Practical Tips for Employers
Many of the changes to the regulations simply harmonize the CFRA and the FMLA. But employers still need to remember California’s unique rules, especially where those rules are more protective of employees. For example, the FMLA and the CFRA generally do not run concurrently when an employee is off work on PDL. Also, under the CFRA, employers may not obtain second opinions for time off related to a covered family member’s serious health condition.
Employers should ensure they update their forms prior to July 1, and work with experienced employment counsel to ensure they are in compliance with the new regulations.