California Agency Releases Proposed Leave Rules for Comment

Author: Melissa Burdorf, XpertHR Legal Editor

February 28, 2014

California's Department of Fair Employment and Housing (DFEH) has published proposed regulations that would amend the current regulations to the California Family Rights Act (CFRA). The CFRA provides eligible employees with job-protected leave for certain reasons (e.g., to bond with a newborn child; to provide care for the employee's child, parent, spouse, registered domestic partner or registered domestic partner's child who has a serious health condition). The amendments would clarify many of the discrepancies and unanswered issues that were created when the federal Family and Medical Leave Act (FMLA) was amended, and its regulations updated, in 2008.

According to Michelle Barrett Falconer, shareholder and co-chair of Littler's leaves of absence and disability accommodation group, many California employers have been operating in a vacuum when it comes to applying the FMLA's provisions alongside the CFRA. As such, many of the updated CFRA regulations will be welcomed by employers, who will now have some certainty when it comes to the overlap and differences between the FMLA and CFRA. Ms. Falconer further explains that examples of what the proposed amendments address include:

  • A change to the current definitions of covered employer and eligible employee;
  • New regulations regarding an employee's rights upon return from leave;
  • Changes to the regulations regarding a key employee's reinstatement rights; and
  • Clarification as to an employer's obligation to provide benefits continuation to an employee disabled by pregnancy who takes leave under FMLA and California's Pregnancy Disability Leave law, as well as baby bonding leave under the CFRA.

An employer with employees who work in California that has specific concerns regarding the proposed amendments should:

  • Carefully read over the proposed amendments.
  • Attend one of the two scheduled public hearings where employers can present arguments or written statements regarding the proposed amendments. The meetings are scheduled for:
    • April 7, 2014, at 10 a.m. at the University of California, Irvine, School of Law, EDU 1121, 401 East Peltason Drive, Irvine, California 92697; and
    • June 2, 2014, at 10 a.m. at the California Public Utilities Commission, Main Auditorium, 505 Van Ness Avenue, San Francisco, California 94102.
  • Send any written comments regarding the proposed regulations to the Council by e-mail (FEHCouncil@dfeh.ca.gov) or by regular mail to: Fair Employment and Housing Council, c/o Phyllis W. Cheng, Director, Department of Fair Employment and Housing, 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758.

The deadline for submitting written comments is June 2, 2014 at 5:00 p.m. The DFEH will not consider any written comments received after that date/time. Once the DFEH reviews all timely-submitted comments, it may revise or modify the CFRA regulations.

For information on the proposed amendments and the regulatory amendment process in general, please refer to the DFEH website, in particular: