By Jennifer Jacobus, PHR-CA, SDEA
Lucky for employers, this issue is in no way as daunting as the new Paid Sick Leave requirements, and in fact, the new amendments to the CFRA are meant to help employers and to bring the CFRA and the federal Family Medical Leave Act (FMLA) into closer alignment. Employers with 50 or more employees within a 75-mile radius are required to offer FMLA and CFRA to those employees who qualify. The new amendments to CFRA will:
- Clarify guidance regarding “joint employer” situations and who is considered an eligible employee
- Update the definition of “spouse,” clarifying same-sex spouses; FMLA regulations were recently amended to cover spouses in same-sex marriages
- Clarify permissible defenses for a refusal to re-employ a “key employee”
- Include an expanded reinstatement guarantee
- Revise the current regulations, giving employers 5 days to respond to CFRA requests
- Provide guidance on calculating intermittent leave with regards to overtime and holidays
- Revise the consequences for an employee who fails to respond to an employer’s inquiry regarding leave requests or for an employee who fails to return a required medical certification or who obtains a CFRA leave fraudulently
Remember, there are still significant areas where FMLA and CFRA differ, the biggest disparity being that CFRA does not consider pregnancy a disability, while most reasons for leave under CFRA will otherwise run concurrently.
Another big difference between FMLA and CFRA is that the FMLA regulations allow an employer to contact an employee’s health care provider to clarify or authenticate a medical certificate. The CFRA regulations have been amended to specify that an employer may not contact a health care provider for any reason other than to authenticate a medical certification. Additionally, while the FMLA allows an employer to seek a second opinion for “reasonable doubt,” the CFRA regulations state that an employer must have a good-faith, objective reason to doubt the validity of a medical certification and seek a second opinion.
Lastly, FMLA permits an employee to choose and/or an employer to require the substitution of accrued paid leave for the otherwise unpaid portion of FMLA. CFRA allows an employee to elect or the employer to require the use of sick leave during the unpaid portion of CFRA for the employee’s own serious health condition. Furthermore, the employer and employee must agree to substitute paid sick leave for other CFRA leaves. An employer can require that an employee use accrued vacation of PTO for any unpaid portion of CFRA, not including leave running concurrently with California’s Paid Family Leave (PFL); this is considered a paid leave.
Of course, with these new changes come new posting requirements. Effective July 1, 2015, employers must include the newly revised California Family Rights Act poster with their other workplace postings.
Leaves, especially in California, can be a legal mine field. For employers dealing with leaves on a regular or not-so-regular basis, it is best to contact an HR professional or seek a legal opinion whenever in doubt.