On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
With the Coronavirus Pandemic presently spiking at unprecedented levels, employee requests to take time off to care for themselves, and infected family members, are already exploding. This trend is expected to continue into the foreseeable future, reflecting the exponential increases in infections observed in California and throughout the nation.
In response to this health care crisis, a “greatly expanded” California Family Rights Act (“CFRA”) has been enacted, effective January 1, 2021, which will entitle employees to take leave in many situations formerly within employers’ discretion. The new statute not only covers far more employers than was previously the case, it significantly enhances the reasons for which employees can take CFRA leave.
The revised CFRA now covers employers of five or more employees, replacing the 50-employee threshold of its predecessor. It entitles employees to 12 weeks of unpaid leave during each 12-month period for reasons related to family and medical leave.
The original version of the CFRA was already so demanding of employers that the author, from the moment the statute was enacted in 1993, routinely advised clients to maintain their workforces below the 50-employee threshold, in the absence of a compelling reason for exceeding it.
In addition to expanding CFRA’s coverage to the vast majority of employers in California, the new law has broadened the definition of “family members” employees can demand leave to care for. This includes several new categories of relatives.
The CFRA historically allowed employees to take unpaid leave for a number of reasons, including to care for an employee’s and “family member’s” serious health conditions. CFRA defined “family member” to include a minor child, a spouse or a parent.
The new law defines “family members” to include siblings, grandparents, grandchildren and domestic partners. The definition of “child” is expanded to cover all adult children (regardless of whether they are dependent) and children of a domestic partner.
Due to the significant and complicated requirements of the new law, small employers with new compliance obligations will be forced to quickly familiarize themselves with numerous new requirements before the end of the year.
This is because the worsening Coronavirus Pandemic is expected to result in a sharp increase in employee leave requests, prompted by both employees’ own health conditions, as well as those of covered family members.
As a result, it is imperative that employers begin planning for a surge in leave of absence demands that have never previously been required by law.
Planning for Increased Leave Requests
While any meaningful preparation for new laws starts with carefully-drafted written policies, the CFRA actually requires that all employee handbooks include a family rights policy. This must summarize the requirements of the law, and the employer’s procedures for complying with them. This mandatory policy should incorporate the many new requirements of the revised law.
It is therefore recommended that employee handbooks be revised, before the new law takes effect, to provide employers with as much flexibility as possible in addressing the expected influx of new leave requests.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 39 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.