California Expands Employee Leave Law with SB 1383

California Expands Employee Leave Law with SB 1383

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 (“SB 1383”) into law.  The new law, which goes into effect on January 1, 2021, significantly expands the California Family Rights Act (“CFRA”), impacting both large and small employers alike.   

The CFRA Now Applies to Most California Employers   

The current version of the CFRA requires employers with 50 or more employees within 75 miles of the worksite to provide their employees with 12 weeks of unpaid leave for a variety of medical and familial reasons.  SB 1383 expands the CFRA to apply to employers with five or more employees and eliminates the 75 miles radius requirement.  The CFRA will therefore now apply to significantly more employers, many of whom may have never had to contend with the CFRA or its federal counterpart, the Family and Medical Leave Act (“FMLA”).  As a result, these employers have until January 1, 2021 to ensure their businesses are compliant with the CFRA.   

Expanded Definition of “Family Members”   

Under the current CFRA, employees are permitted to take unpaid leave for a variety of reasons, which includes caring for a “family member” with a serious health condition.  A “family member” is currently defined as a minor child, spouse, or parent.  SB 1383 substantially expands the definition of “family members” to include siblings, grandparents, grandchildren, and domestic partners.  Additionally, the definition of “child” now includes adult children (regardless of their dependency status) and children of a domestic partner.  Accordingly, employees will be entitled to leave under more varied circumstances.   

In order to be eligible for leave under SB 1383, the employee must have been employed for at least 12 months and have at least 1,250 hours of service with the employer.   

Further Changes to California Leave Law   

Under current law, employers do not have to provide more than 12 weeks of leave to parents who both work for the same company in connection with the birth, adoption, or foster care placement of a child.  Employers will now have to provide 12 weeks leave to both employees in such situations.   

Employers Should Be Aware of Potential Leave “Stacking” Issues 

Under current law, the CFRA and FMLA run concurrently.  This means that an employee is generally only eligible for 12 weeks total of unpaid leave under both the CFRA and FMLA.  However, because SB 1383 expands the definition of “family member,” employers with 50 or more employees may run into a situation where an employee may be entitled to 24 weeks of unpaid leave under the CFRA and FMLA.   

For example, an employee may take 12 weeks of leave under the CFRA to care for grandparents.  Because the FMLA does not cover grandparents, the employee would not be eligible for leave under the FMLA.  Thus, at the end of the 12 weeks leave, the employee would still be eligible for FMLA leave and could take another 12 weeks unpaid leave to care for a child, parent, or spouse.  In that situation, the employer may have to provide an employee 24 weeks of unpaid leave.   

What California Employers Need to Do Now 

On January 1, 2021, California will for the first time require employers with less than 50 employees, but more than four, to provide their employees with family and medical leave under the CFRA.  Such employers should begin working with their employment counsel and human resources to prepare policies and procedures addressing these new requirements.  Larger employers, who may already have policies related to leave under the CFRA and FMLA, should work with their employment counsel and human resources to update their policies and procedures to reflect the newly expanded definition of “family member” under the CFRA.   

If you have questions about the implications of SB 1383 on your business, contact the employment attorneys at Carlson & Jayakumar today at (949) 222-2008.   

By Ryan P. Kennedy 

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