New CFRA Regulations

The California Family Rights Act (CFRA) provides for family and medical leave similar to, but often exceeding, the protections afforded under the federal Family and Medical Leave Act (FMLA). In 2013, the federal government revised the FMLA regulations substantially, which we discussed in a previous E-Alert. photo love-746678_640_zpstvzrka6i.jpgNow, the California Fair Employment and Housing Council has issued its own long-anticipated update to the CFRA regulations. These new CFRA regulations largely align with the revised FMLA regulations, but key differences remain. The revised CFRA regulations became effective on July 1, 2015.

CFRA Amendments That Align With FMLA

Employer Coverage. The new CFRA regulations expand the definition of “covered employer” to include successors in interest and joint employers. The regulations explain that joint-employer status generally will be found where two or more businesses exercise joint control over the work or working conditions of employees.

Employee Eligibility. One of three conditions that must be satisfied in order for an employee to be eligible for leave under CFRA is that the employee requesting leave must work for an employer with at least 50 employees within 75 miles of the worksite where the employee requesting the leave is employed. The new CFRA regulations clarify that, for employees with no fixed work location, the “worksite” is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. The new regulations give the following example: if a salesperson works from home in California but reports to and receives assignments from her corporate headquarters in New York, the New York headquarters, not her home, would constitute the worksite from which there must be 50 employees within a 75-mile radius in order for the salesperson to be eligible for leave under the CFRA. As to another of the eligibility requirements – that the employee has been employed by the employer for at least 12 months – the new CFRA regulations mirror the FMLA regulations in allowing employers not to include in this calculation employment periods prior to a break in service of seven years or more (except for breaks caused by military service or taken per a written agreement to the contrary).

Employer’s Time to Respond to CFRA Request. The updated regulations provide that an employer must respond to an employee’s request for CFRA leave within five (5) business days after receiving the request.

Retroactive Designation of Leave. The new regulations permit employers to retroactively designate CFRA leave after an employee has returned to work, so long as the employer gives appropriate notice of the designation and no harm or injury is caused to the employee.

Key Employee. The updated regulations adopt the FMLA’s definition of a “key employee” as an employee who is paid on a salary basis and is amongst the highest paid ten (10) percent of the employer’s workforce employed within 75 miles of the employee’s worksite. Employers may deny reinstatement to key employees where reinstatement would cause “substantial and grievous economic injury,” provided that the employer complies with applicable notice requirements and provides the employee an opportunity to return to work upon receiving the notice. (As the standard for denying reinstatement to even “key employees” is very demanding, we recommend clients seek legal advice prior to refusing reinstatement on this basis.)

Computing Hours of Intermittent Leave for Employees Without Regular Work Schedules: Employers must generally measure the twelve (12) workweeks of leave to which an employee is entitled based on his or her normal work schedule. The new regulations provide that if an employee’s schedule varies from week to week to such an extent that an employer is unable to determine how many hours the employee would otherwise have worked, the employer can now use a weekly average of the hours scheduled over the twelve (12) months prior to the beginning of the leave period to calculate the employee’s leave entitlement.

Computing Hours of Intermittent Leave For Employees Required To Work Overtime and Holidays. The new regulations state that if an employee would be required to work overtime, but is unable to do so because of their need for CFRA leave, the hours that the employee would have been required to work may be counted against the employee’s CFRA entitlement. For example, if an employee normally would be required to work 48 hours in a particular week, but due to a serious health condition can work only 40 hours that week, then the employee would utilize eight (8) hours of CFRA-protected leave out of the 48-hour workweek. Voluntary overtime, however, may not be counted against the employee’s CFRA entitlement. Similarly, the new regulations state that if an employee uses CFRA leave in increments of less than one week, the fact that a holiday may occur within that week will not count against the employee’s CFRA entitlement unless the employee was otherwise scheduled and expected to work the holiday.

Employee’s Failure to Respond. When an employee makes a request for leave that the employer believes may qualify under CFRA, the employer is permitted to inquire further to determine whether the employee’s leave would indeed qualify. The new regulations provide that an employee’s failure to respond to employer inquiries regarding the leave request may result in denial of CFRA protection.

Fraudulently-Obtained CFRA Leave. The new regulations expressly state that employees who fraudulently obtain or use CFRA leave are not protected by CFRA’s provisions regarding job restoration or maintenance of health benefits. However, the employer bears the burden of proving that an employee has fraudulently obtained or used CFRA leave.

CFRA Amendments That Differ From FMLA

Continuation of Health Care Benefits. The new CFRA regulations, like recently issued regulations under California’s statute regarding pregnancy disability leave, impose significantly greater employer obligations as to health-benefit continuation than apply under the FMLA. Specifically, the new CFRA regulations require employers to maintain an employee’s group health benefits for the entire time an employee is on unpaid pregnancy disability leave of up to four (4) months, plus during subsequent CFRA leave of up to twelve (12) weeks. Unlike the CFRA regulations in effect prior to the most recent amendments, the new CFRA regulations specify that the time that an employer maintains and pays for group health coverage under California’s Pregnancy Disability Leave law does not count toward its obligation to pay for up to twelve (12) weeks of group health coverage under the CFRA. The new regulations also provide guidance on collecting employee premiums and dealing with employees who fail to pay such premiums. Under the new regulations, employers are required to provide written notice of the terms and conditions regarding payment of an employee’s ordinary share of the premium during CFRA leave.

Medical Certification and Recertification. The new regulations prohibit employers from contacting an employee’s health care provider for any reason other than to authenticate a medical certification. The regulations also state that an employer can only request a second opinion regarding an employee’s serious health condition if the employer has a “good faith, objective reason” to doubt the validity of the certification. Unfortunately, the new regulations make no change to the rule that California employers cannot request “recertification” except upon the expiration of the duration estimated in an employee’s original certification and where the employee has requested leave beyond that original estimated date.

Releases To Return to Work & “Fitness for Duty” Tests. The CFRA generally permits employers to require a release from an employee’s health care provider stating that the employee is cleared to return to work. However, the new regulations make clear that an employer may not require an employee to undergo a “fitness-for-duty examination” as a condition of an employee’s return. An employer must reinstate the employee, and can then perform a fitness-for-duty exam only if job-related and consistent with business necessity.

Definition of “Serious Medical Condition.” The CFRA and FMLA both generally define a serious health condition as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment. However, while the FMLA defines inpatient care to require an overnight stay in a health care facility, the new CFRA regulations define inpatient care to include instances in which a health care facility admits a person with the expectation that the person will remain at least overnight, even if it later develops that such person can be discharged and does not actually remain overnight.

Other Significant Aspects of the Revised CFRA Regulations

Paid Leave. The new regulations clarify that an employee may elect to use, or an employer may require an employee to use, any accrued sick leave that the employee is eligible to take during the otherwise unpaid portion of a CFRA leave if the CFRA leave is for the employee’s own serious health condition or any other reason if mutually agreed upon by the employee and employer. This is significant, as California has recently required employers to provide employees with at least three (3) days or 24 hours of paid sick leave.

Disability Leave. The new regulations state expressly what caselaw has made clear for some time – that the right to take CFRA leave is separate and distinct from the right to take a disability leave under the California Fair Employment and Housing Act. Thus, even if an employee has exhausted the maximum entitlement to leave under CFRA, the employee may be entitled to additional leave as a “reasonable accommodation” under California’s disability discrimination laws.

New Certification Form. The revised CFRA regulations include a newly-approved certification form that employers may choose to utilize. The new form contains the updated definition of serious health condition and contains line items for the health care provider to complete with regard to intermittent and reduced-schedule leaves. We recommend that clients who have been using the form certification previously provided by the DFEH start using the revised form.

Posting Requirements. The new regulations include updated text for the poster that the CFRA regulations have long required employers to post in conspicuous places where employees tend to congregate; the new regulations also indicate that electronic posting is sufficient to meet the posting requirement so long as the notice may be readily seen by both employees and applicants. Employers are required to translate the CFRA notice in every language that is spoken by at least ten (10) percent of the workforce.

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Contact your SFSS&W attorney to ensure your policies, notices, posters, and medical certification forms reflect these latest regulatory changes.

Millicent N. Sanchez, Ext.8203

Janet I. Swerdlow, Ext.8202

David A. Wimmer, Ext.8201

Lori M. Yankelevits, Ext.8205

Karen E. Rhodes, Ext.8206

Kari Haugen, Ext.8208

Emily G. Camastra, Ext.8213

Allison R. Musante, Ext.8207

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