©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 31 2.3 Family Care and Medical Leave Before 2021, the employers covered under the California Family Rights Act aligned with the federal Family and Medical Leave Act. That is no longer true. The CFRA now applies to employers with as few as five employees22 (unlike the 50-employee threshold applying under the FMLA). The CFRA also no longer includes a geographical requirement for employee eligibility (while the FMLA continues to require that an employee work at or report to a location with at least 50 employees within 75 miles).23 Accordingly, employees now can be eligible for CFRA leave if they work for a covered employer with five or more employees. The 2021 CFRA amendments also eliminated the previous carve-out that existed for certain highly paid or key employees.24 Both state and federal statutes continue to require that the employee have (1) more than 12 months of service with the employer, and (2) 1,250 hours of that service within the last 12 months to be eligible to take leave. As a result, all employees who take CFRA leave have the same reinstatement rights.25 The CFRA, like the FMLA, entitles eligible employees to take unpaid leave of up to 12 workweeks during a 12month period because of (1) birth, adoption, or foster care placement of a child, (2) serious health condition of the employee or the employee’s covered family member, or (3) a qualified exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner (CFRA only), child, or parent in the U.S. Armed Forces. In 2021 the CFRA expanded “Covered Family Member” to encompass grandparents, grandchildren, and siblings with a serious health condition, and “child” became broadly defined to include all children regardless of age, as well as children of domestic partners. 26 In 2022, the definition of “parent” expanded to protect leave to care for a parent-in-law with a serious health condition.27 As of January 1, 2023, eligible employees may take CFRA leave to care for a “designated person” with a serious health condition, meaning any blood relative or a person whose association with the employee is the equivalent of a family relationship.28 Employees may designate such a person at the time leave is requested, but employers can limit employees to designating only one such person per 12-month period.29 The CFRA continues to provide more employee entitlements than the FMLA. The CFRA entitles employees to intermittent leave for bonding without the employer’s permission; the basic minimum duration of that leave generally is two weeks, and both parents have the right to a full 12 weeks of bonding leave.30 Further, employees who have taken pregnancy disability leaves of up to four months under the California PDLL (concurrently with FMLA leave) may take 12 more weeks of CFRA leave to bond with their child (or for any other CFRA-qualifying reason), during which the employer must continue health insurance coverage. The CFRA also peculiarly restricts employer inquiries. California employers cannot require “medical facts” (e.g., symptoms or a diagnosis) and certain other information that the FMLA permits an employer to obtain as part of a medical certification, and California employers also cannot obtain a second or third medical opinion as to the serious health condition of a family member (as opposed to the employee’s own medical condition, when second and third opinions are permitted).31 The CFRA forbids employers from interfering with an employee’s exercising or attempting to exercise CFRA rights.32 For example, an employee fired for excessive absenteeism invoked this provision to sue his former employer. The employer’s policy called for terminating employment after eight unexcused absences, with prior unexcused absences being forgiven if followed by a 60-day period of no absence. The employer refused to count CFRA leave days as days of “no absence.” The employee claimed that this refusal was unlawful retaliation against him for using his CFRA leave. The Court of Appeal, however, affirmed summary judgment for the employer, holding that refusing to count the employee’s CFRA days towards 60-day “no absence” periods did not violate the CFRA. The employee was not penalized for taking CFRA leave. Rather, he was penalized for his unexcused absences. His taking CFRA leave did not increase the number of scheduled work days he had to
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