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NEW LAWS & REGULATIONS CFRA EXPANDED & NEW NO-REHIRE RESTRICTIONS

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This year, as in past years, the Governor has been presented numerous new pieces of employment-related legislation for signature which will have significant impact upon California employers.  Most of these new laws will take effect as of January 1, 2021. Below is a summary of some of the most important new laws.

CFRA LEAVE BENEFITS EXPANDED

One of the most significant pieces of legislation is SB 1383 (Sen. Hannah-Beth Jackson D-Santa Barbara) which is an expansion of the California Family Rights Act (CFRA). While the change to CFRA could not come at a worse time for employers who are already dealing with the significant impact on their workforce due to COVID-19 and the related leaves under the FFCRA, Governor Newsom was determined to pass this piece of legislation and signed this bill to become effective January 1, 2021.

CURRENT CFRA

The CFRA currently applies to private employers with 50 or more employees within 75 miles of the worksite (and public employers of any size) and requires that an “eligible employee” be provided up to 12 workweeks of unpaid job-protected leave during a 12 month period of time for “family care and medical leave.”

“Family care and medical leave” generally meant leave for the serious health condition of the employee or the employee’s child, parent or spouse, along with leave for the birth of, or placement of child in connection with adoption or foster care, or the serious health condition of a child. To be eligible the employee must have worked for the employer for at least 12 months and completed at least 1250 hours of work during the most recent 12 month period of time. The eligibility requirements under the new CFRA remains the same.

CHANGES TO CFRA

CFRA Now Applies to Employers with 5 or More Employees

Under the expanded scope of CFRA, “employer” is defined to mean “any person who directly employs 5 or more persons to perform services for a wage or a salary”.

Family Members Definition Expanded

The definition of “family member” for whom CFRA leave can be taken has been expanded. Family care and medical leave now covers a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. The reasons for taking leave remain the same.

The expansion of the “family member” definition also applies to employers of 50 or more employees who are already covered by the CFRA.
In addition, with the changes to the definition of “family members” under state law compared to federal law, employees could be eligible to take leave under FMLA and CFRA. With the prior definitions of family member being the same, CFRA and FMLA leaves ran concurrently so that the maximum amount of leave was 12 weeks. Now, however, an employee can take 12 weeks of FMLA and 12 weeks of CFRA if the “family member” for whom the leave is needed is different.
For example, an employee seeks to take 12 weeks of leave under FMLA to care for a “family member” (defined as a child, parent or spouse) who has a serious medical condition; then the employee seeks to take another 12 weeks of leave under CFRA to care for a sibling with a serious medical condition. This could result in the employee being eligible for a combined total of 24 weeks of leave under the CFRA and FMLA.
Additional Changes
Baby Bonding

Under the existing CFRA, there was an exclusion so that if both new parents worked for the same employer, the employer was only required to provide a combined total of 12 weeks of CFRA baby-bonding leave to both parents. The law now requires that an employer provide 12 weeks of CFRA baby bonding leave to each parent.

New Parent Leave Act Expires:
With the revisions to CFRA, the New Parent Leave Act, which was enacted just last year, requiring employers with between 20 and 49 employees to provide up to 12 weeks of time off for baby bonding leave, becomes irrelevant and is repealed as of January 1, 2021.
CFRA Available for Qualifying Exigencies Related to Active Duty Deployment of Family Member

The revised CFRA also add a new qualifying reason for leave to mirror a provision in the FMLA. Eligible employees may take up to 12 workweeks for “qualifying exigencies” relating to a parent, spouse, or child’s call to active military duty and deployment. This would cover a host of reasons such as needing time off to attend to personal matters such as making child care arrangements and participating in deployment-related base activities.

What Should Employers Do Now?
  • Employers with 5 or more employees must now implement a CFRA leave of absence policy and provide employees with notice of their eligibility for leave and train managers and supervisors on the new leave entitlements.
NO-REHIRE CLAUSE IN SETTLEMENTS OF EMPLOYMENT DISPUTES

On September 11, 2020, Governor Newsom signed AB 2143 (Mark Stone) into law which modifies the law that was enacted last year to generally prohibit the use of no-rehire provisions in settlement agreements of employment-related disputes. The bill provides that existing law prohibits an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person from being rehired by the employer against which a good faith claim has been filed against the employer, or any parent company, subsidiary, division, affiliate, or contractor of the employer.

Existing law also creates an exception from the prohibition if the employer has made a good faith determination that the aggrieved person engaged in sexual harassment or sexual assault.

This revisions to the bill now require the determination of sexual assault or sexual harassment to be documented by the employer before the aggrieved person filed the claim. The bill would also expand this exception to include determinations that the aggrieved person engaged in any criminal conduct.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.