California Family Rights Act Regulations Amended
Author: Marta Moakley, XpertHR Legal Editor
May 11, 2015
The California Fair Employment and Housing Council's expansive amendments to its California Family Rights Act (CFRA) Regulations have been approved. As of July 1, 2015, California employers with 50 or more employees must comply with the multiple regulatory changes.
A number of changes better harmonize the CFRA with the Family and Medical Leave Act (FMLA) amendments of March 2013. In addition, a number of changes aim to clarify the current state of case law interpreting the regulations and explain confusing areas of leave law (e.g., employees without a clearly defined worksite or the intersection of intermittent leave and voluntarily scheduled overtime).
However, the regulations are not fully aligned with federal law (e.g., with respect to pregnancy disability leave and recertification). The revisions incorporate the FMLA 2013 amendments to the extent that these are consistent with state law.
The definitions section has been updated, to include the following revisions:
- Covered employer, including provisions addressing joint employment (now aligned with federal law);
- Eligible employee, to include provisions regarding breaks in service;
- Key employee definition; and
- Spouse, to include same-sex partners (specifically, married partners or registered domestic partners).
Other amendments:
- Detail the circumstances under which an employer may refuse to reinstate a key employee;
- Clearly delineate an employee's rights upon return; and
- Describe new posting and notice requirements.
An added provision specifically excludes fraudulently obtained leave from the CFRA's job restoration or benefits protections. However, the burden remains on the employer to prove that an employee fraudulently used or obtained CFRA leave.
California employers should act quickly to ensure that employee handbooks, leave policies, internal notification and determination letters and notice postings are up-to-date and compliant with the CFRA's amendments. The Department of Fair Employment and Housing (DFEH) will release an updated poster prior to the amendment's effective date. Employers should note that, under the new regulations, an electronic posting may suffice as long as the posting otherwise meets the notice requirements.
Finally, employers should consider training employees on the new regulations, using specific examples in order to identify instances where an employee may not be using the specific terminology regarding a CFRA leave request, but may otherwise be eligible for leave. A supervisor's failure to identify a CFRA leave request may lead to increased liability risks for employers.