©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 33 2.3.5 Leave granted to care for same-sex spouse Same-sex marriages are lawful.41 An employee may take CFRA leave to care for a same-sex spouse with a serious health condition. The federal Department of Labor has revised the definition of “spouse” for purposes of taking FMLA leave. Under the FMLA, spouse is defined as “a husband or wife” under state law for purposes of marriage in the state where the employee resides, and includes a spouse in “a same-sex or common law marriage.”42 2.3.6 Absence of “honest belief” defense In a case now depublished, the Court of Appeal held that the “honest belief” defense available to an employer in many discrimination contexts does not apply to a CFRA claim. Rather, an employer denying leave in the belief that the employee is abusing leave must be factually correct in that belief: the employer could not “simply rely on an imprecisely worded and inconsistently applied company policy to terminate an employee on CFRA leave without adequately investigating and developing sufficient facts to establish the employee had actually engaged in misconduct warranting dismissal.”43 On review, the California Supreme Court declined to rule on the viability of the “honest belief” defense, as it ruled for the defendant on another ground.44 2.3.7 San Francisco work arrangement leave Since 2014, the San Francisco Family Friendly Workplace Ordinance has given employees of covered employers the right to request a flexible or predictable work arrangements for family care. Employees can qualify to care for a child, a covered family member with a serious health condition, or any person age 65 or older (where the original ordinance was limited to caring for a parent over 65).45 To be eligible, an employee must have worked for the employer for at least six months, must regularly work at least eight hours per week, and must work within the San Francisco City limits. Amendments that went into effect in 2022 expanded what it means to work “within the city limits,” so that the ordinance now covers remote employees who report into the employer’s worksite in the City from a location outside the City.46 A request by an eligible employee, which must be in writing, triggers various procedural requirements under the 2022 amendments. The employer has the option to meet with the employee about the request within 14 days of the request (the employer is no longer required to hold a meeting within 21 days), and must respond in writing to the employee’s request within 21 days of the request being made whether or not a meeting is held. The 21-day response must either grant the request, or deny the request and initiate an interactive process to find an alternative with other specific contents.47 An employer may deny the employee’s request based on an undue hardship (labeled “bona fide business reasons” prior to the 2022 amendments), such as costs directly caused by flexible or predictable working arrangements, including cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another; the detrimental effect on ability to meet customer or client demands; the inability to organize work among other employees; and the insufficiency of work to be performed during the time or at the location the employee proposes to work. If the request is denied and the ensuing interactive process is unsuccessful, then the employer must issue a new written notice at the end of the interactive process. 2.4 Paid Family Leave Employees of private California employers who take time off work for certain military exigencies, to care for a seriously ill family member, or to bond with a new child can take up to eight weeks of Paid Family Leave (PFL) (also known as Family Temporary Disability Insurance or FTDI benefits) during a 12-month period.48 An employee
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