On September 17, 2020, Governor Newsom signed into law SB 1383, radically altering the business and employment law landscape for small California employers. SB 1383 – which goes into effect on January 1, 2021 – significantly expands the reach of California’s Family Rights Act (CFRA), now mandating that employers with 5 or more employees must comply with CRFA’s requirements.
CFRA allows an eligible employee to take 12 weeks of unpaid, job-protected leave in any of the following circumstances:
- When the employee is facing his/her own serious health condition;
- When the employee is caring for specific family members facing a serious health condition;
- When the employee is caring for a newborn (or newly adopted or foster-placed) child; and
- When the employee is dealing with a “qualified exigency” related to active military deployment of designated family members.
Additional Important Changes
SB 1383 also significantly changes the definition of a “family member” for whom an eligible employee can take a CFRA leave. Prior to SB 1383, an employee could only take CFRA leave to care for the employee’s parent, spouse, or child. However, as of January 1, 2021, an eligible employee can now take CFRA leave to care also for an ill grandparent, grandchild, sibling, or domestic partner.
SB 1383 also adds a new category of “child” to the definition of a child for whom an employee may be entitled to CFRA leave, either to care for or for bonding after birth, adoption, or foster placement. Now, the child of an employee’s domestic partner is explicitly included.
SB 1383 also repeals California’s New Parent Leave Act (NPLA), which went into effect less than three years ago on January 1, 2018. The NPLA required employers with 20 to 49 employees to grant eligible employees up to 12 weeks of unpaid leave to bond with a newborn child, adopted child, or foster child. The NPLA was intended to grant such “baby bonding” leave to employees who previously weren’t entitled to it under CFRA because their employer didn’t have 50 employees. Now, however, since CFRA applies to employers with five or more employees, NPLA is redundant and is expressly repealed effective January 1, 2021.
SB 1383 contains other significant changes. It requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee. Under the previous CFRA, an employer only had to grant both employees a combined total of 12 weeks of leave in a 12-month period. The new law also now requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to a “qualified exigency” related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.
Finally, SB 1383 eliminates the “key employee” provision of CFRA. Previously, CFRA allowed employers to deny reinstatement to the same or comparable position after a CFRA leave to a highly paid, salaried employee (commonly referred to as a “key employee”), provided that doing so was necessary to prevent “substantial and grievous economic injury” to the employer. In plain English, this meant that an employer could fill the positions of high-ranking employees serving in important roles – and decline to reinstate them to their prior position when they wished to return – if the employer could prove the requisite economic injury. After January 1, 2021, this “key employee” provision will no longer be available under CFRA. It does remain in the FMLA, so employers with more than 50 employees who are subject to the FMLA will be able to avail themselves of this provision – but smaller employers not governed by FMLA will not.
What All of This Means for Employers
As of January 1, 2021, smaller California employers will be facing serious and significant new responsibilities under CFRA, with potentially wide-ranging impact on how they conduct their businesses. As a result, smaller employers should familiarize themselves now with how CFRA works, before the January 1, 2021 effective date.
Employers should also train those within their organization (supervisors, managers, or HR personnel) who may receive questions from employees or requests for CFRA leave on the amended CFRA requirements.
Employers should also review and update their employee handbooks, leave notices, and other policies to ensure they comply with the new, amended CFRA. As part of that process, California employers should remove references to the now-repealed New Parent Leave Act and should provide updated leave notices to their employees on or before January 1, 2021.
You can read the text of SB 1383 here.
