An employer’s size often dictates the extent of its obligation to provide employees with leaves of absence for a variety of reasons. To make matters more complicated, the laws’ size thresholds are inconsistent.
The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), which overlap to a great extent, provide for up to 12 weeks of job-protected leave for a variety of reasons, including the employee’s or a covered relation’s serious health condition. Until now, these laws applied only to large employers. But the California Legislature just amended the CFRA so that small businesses will be subject to part of its provisions.
The New Parent Leave Act
California’s New Parent Leave Act (Senate Bill 63) became effective on January 1, 2018. The Act applies to employers with between 20 and 49 employees located within a 75-mile radius. It provides 12 weeks of job-protected, unpaid leave to employees to bond with a new child. Unlike the CFRA and the FMLA, the Act does not provide leave for family members’ and employees’ serious health conditions.
The Act applies to employers with between 20 and 49 employees located within a 75-mile radius. Therefore, an employer that employs smaller numbers of workers at one or multiple worksites will be covered. In contrast, the FMLA and the CFRA apply to employers of 50 workers or more. Employees are eligible to take leave only if they work where there are 50 employees within a 75-mile radius.
The Act borrows employee eligibility requirements from the CFRA and the FMLA. An employee must have at least 12 months of service, and have worked at least 1,250 hours during the previous 12-month period. Thus, newly hired employees and many part-time or casual employees are not eligible for leave under the New Parent Leave Act.
Eligible employees may take up to 12 weeks of unpaid, protected leave to bond with a new child, within one year of the child’s birth, adoption or foster care placement. If both parents work for the same employer, they are entitled to a combined total of 12 weeks. The Act does not provide protected leave for the ongoing care of a child who has been in the employee’s family for more than one year.
Pay and Health Benefits
Eligible employees may use accrued time off during the leave period, but the employer cannot require the use of such time if an employee is receiving wage replacement benefits, such as Paid Family Leave payments. (Remember, California’s Paid Family Leave law does not entitle an employee to take time off. Rather, employees who are approved to take time off under other laws or employer policy may receive up to six weeks of payments to help offset the wage loss during leave. And in San Francisco, for example, the employer may have to pay the gap between the Paid Family Leave benefits and the employee’s regular compensation without the employee having to use accrued time off.)
The employer must maintain and pay the employee’s continued group health premiums duration of the leave as if the employee were actively working.
The Act’s Interaction with Pregnancy Disability Leave
Leave under the Act may be tacked onto time off under California’s Pregnancy Disability Leave law. Employers with five or more employees are required to provide up to four months (17 1/3 weeks) of unpaid leave (and reassignment/reasonable accommodation) to employees disabled by pregnancy childbirth, or related conditions. There is no length-of-service or hours-worked requirement.
So, employers covered by the Act should now to plan for extended periods of absence when employees become pregnant, followed by prompt reinstatement of a covered employee at the end of leave.
Tips for Employers
Smaller employers must review and, if necessary, implement lawful leave policies consistent with the Act’s provisions. Smaller employers will also need to create new forms and track the additional time off, which will be time consuming. Training internal human resources staff to handle these responsibilities or seeking outside resources is key to ensuring proper leave administration.
Employers should also ensure that supervisors and managers are aware of the wide array of leaves afforded to eligible employees. Although employers should not expect supervisors and manager to be experts on all leave issues, they must be aware that employees seeking leave may have legally protected rights. Negative reactions, denial of leave that is legally required, and retaliatory conduct can lead to considerable legal liability.