The California Fair Employment and Housing Council issued updates to the California Family Rights Act (CFRA), which will take effect July 1, 2015. The changes clarify some CFRA positions, and modify the law to more closely align with the federal Family and Medical Leave Act (FMLA). Some of the changes made to better align CFRA with FMLA are:
- Definition of covered employer adds guidance on joint employer situations.
- Definition of covered employee clarifies the 12-month length of service requirement and how to determine if there are 50 employees within a 75 mile radius.
- Definition of spouse to allow for same-sex couples.
- Allows an employer to retroactively designate CFRA leave if the failure to timely designate leave does not cause harm or injury to the employee.
- Employer must respond within five business days upon receiving a request for CFRA leave.
- Employee who fraudulently obtains or uses CFRA leave is not protected for job restoration or maintenance of health benefit provisions.
- There will be some significant differences between CFRA and FMLA.
Differences between CFRA and FMLA
California Law – CFRA
Federal Law – FMLA
Federal FMLA certification form can be used for CFRA, but section requesting information about symptoms and diagnosis must be removed or marked N/A. That information violates the California Confidentiality of Medical Information Act.
FMLA certification form can request information regarding symptoms and diagnosis.
Employer may not ask for new certification before certification expires, even if initial certification included a lifetime condition.
Employer can request new certification every six months.
Health benefits must be maintained for up to 4 months of Pregnancy Disability Leave (PDL) and 12 weeks for baby bonding under CFRA.
Benefits are maintained for a combined total of 12 weeks for pregnancy disability and baby bonding.
Employer must have good faith, objective reason to doubt validity of initial opinion. 2nd opinion can only be requested if leave is for employees own serious health condition.
Employer simply needs a reason to question 1st opinion. 2nd opinion can be requested for employees or family members condition.
Use of Paid Leave
Employee may elect or an employer may require an employee to use vacation or PTO for any unpaid CFRA leave. Employer may require employee to use paid sick leave if CFRA is due to employees own condition.
FMLA generally permits an employee to choose to substitute accrued paid leave during unpaid FMLA leave. Employer can require substitution of accrued paid leave.
The information provided should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult an attorney concerning your own situation and any specific legal questions you may have.
For more information, please contact Doug Smith at 415.399.6318 or firstname.lastname@example.org.