New CA Regulations for California Family Rights Act Leave Take Effect July 1, 2015

By SHLC on June 26, 2015 in Legal Update
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On July 1, 2015, the landscape of medical and family leave in California will change when new regulations for the California Family Rights Act (“CFRA”) go into effect. Many of the changes will align the CFRA regulations with regulations for the federal Family and Medical Leave Act (“FMLA”). There are still differences between the CFRA and FMLA rules, some of which are highlighted by the new amendments. Employers should review their CFRA policies and practices for compliance in light of the new regulations. Here are some key points to consider:

Aligning CFRA and FMLA Requirements

Among the changes to CFRA regulations were the following:

1. Clarifying who is a “covered” employer and “eligible” employee under the regulations, including situations of:
– Joint employers (such as when a joint employment situation exists and when joint employees are counted towards the 50 employee threshold)
– Mobile/non-fixed work site employees (by specifying their workplace for purposes of the 75-mile threshold)
– Employees with breaks in employment (by limiting the use of prior employment to meet the 12-month threshold)
– Employees who take leave before they work 12 months (and permitting employees to qualify for CFRA leave after leave begins)

2. Defining “Key Employee[s]” (who do not have the same reinstatement rights as other employees).

3. Specifying certain rights of employees to reinstatement after leave and defenses to reinstatement for employers, including fraud.

4. Requiring employers to respond to a request for CFRA leave within 5 days of receiving a request.

5. Permitting employers to reduce exempt employees’ pay for CFRA intermittent leave or a reduced work schedule, provided it doesn’t violate other provisions of the law.

6. Limiting when a fitness-for-duty exam may be required for a returning employee.

7. Specifying that employers may have obligations under the Fair Employment and Housing Act and/or Americans with Disabilities Act to engage in the interactive process and/or grant leave to employees with disabilities that are unable to return to work after CFRA leave.

8. Permitting employers to retroactively classify leave as CFRA leave if the employer gives notice and the employee is not harmed.

Key Differences Between the CFRA and the FMLA 

Employers should pay particular attention to the differences between CFRA and FMLA requirements.  The CFRA rules may be more restrictive for employers than the FMLA. Key differences in the new CFRA and FMLA regulations include:

Limits on Employer Requests to Medical Providers:
– CFRA: Employers are not permitted to ask for a second opinion for an employee’s qualifying relative’s medical condition.
– Employers can only ask for a second opinion for an employee’s own serious medical condition if the employer has a good faith, objective reason to do so.
– Medical certification forms cannot seek identification of symptoms or diagnosis from the health care provider.
– Employers may only ask for recertification of the employee’s medical condition if the original certification expires (and “lifetime” certifications do not expire).
– Employers may not unilaterally contact the employee’s healthcare provider, except to authenticate a medical certification.
FMLA: The employer may ask for a diagnosis and may seek a second opinion if there is doubt as to the validity of the certification (a much lower standard than the CFRA). Employers may contact the healthcare provider to get clarification on a certification determination. Also, recertification of the employee’s medical condition may be sought at least every six months.

Pregnancy Leave:
CFRA: California employees are entitled to Pregnancy Disability Leave (“PDL”) for up to 4 months and CFRA leave for “baby bonding” for up to 12 weeks. Pregnancy is not a serious health condition under CFRA. Essentially, an employee may take up to 7 months leave (between PDL and CFRA) for a pregnancy-related disability and subsequent baby bonding.
FMLA: Employees are only entitled to 12 weeks of FMLA leave, which covers both pregnancy disability and “baby bonding.”

Use of Accrued Paid Sick Leave:
CFRA: Accrued vacation time or other paid time off may be used or required during CFRA leave.
– If the employee requires CFRA leave for his or her own serious health condition, the employee may choose, or the employer may require the employee to use accrued sick leave.
– Employees who take CFRA leave to care for a qualifying family member cannot be required by the employer to use accrued sick leave (but the employee and employer may agree that sick leave can be used). Please note that California’s new Mandatory Paid Sick Leave Law permits an employee to decide when paid sick leave is used pursuant to that statute, which may limit an employer’s ability to force an employee on CFRA leave to use paid sick leave. The safest approach is to permit an employee to use paid sick leave if requested, but not require paid sick leave be exhausted during CFRA leave.
FMLA: An employer may require employees to use accrued paid sick leave where it would otherwise be unpaid FMLA leave and the employee can choose to substitute accrued paid sick leave as well.

Other CFRA Changes

Reinstatement:
– Employers must give notice to employees of CFRA reinstatement rights when leave is granted.
– If the employee is no longer qualified to do the job (e.g., no longer licensed or properly trained) when returning from leave, the employee must be given a reasonable opportunity to fulfill the requirement.

CFRA Poster:
– Employers must display a CFRA poster (electronic posting is acceptable) where it can be seen by both employees and applicants.

Certification Form:
– The certification form must include a statement for the California Genetic Information Nondiscrimination Act of 2011 (“CalGINA”). The FMLA certification form available through U.S. Department of Labor (“DOL”) does not include this language.
– The DOL certification form also request symptom and diagnosis information from the health care provider, which is prohibited by the CFRA.

What’s Next?

With the new California law taking effect July 1, 2015, employers should take this time to review their existing medical and family leave policies to ensure that they comply with the new regulations, as well as the existing federal requirements.  Employees, particularly supervisors, should be trained and updated on the new requirements for requesting CFRA leave and responding to employee requests for CFRA leave within 5 days.  More on the new CFRA regulations will be covered in the SHLC Mid-Year Update webinar on July 1, 2015.

Employers are also reminded that the California Mandatory Paid Sick Leave law also goes into full effect on July 1, 2015 and should have compliant policies in place. For more information on the new Mandatory Paid Sick Leave law, please visit our previous blog post from May 15, 2015, California Paid Sick Leave Law: May Webinar Highlights at http://suttonhague.com/california-paid-sick-leave-law-may-webinar-highlights/. Recordings and materials from the SHLC 2-hour webinar on the new Mandatory Paid Sick Leave law from earlier this year featuring a guest speaker from the California Labor Commissioner’s Office may also be ordered at http://suttonhague.com/events/ or by contacting any of our offices.