Following a lengthy public comment period and a number of edits along the way, the Fair Employment & Housing Council has issued its final Amendments to the California Family Rights Act (CFRA) Regulations, which go into effect July 1, 2015. CFRA mirrors the federal Family and Medical Leave Act (FMLA) regarding unpaid job protection guarantees and continued group health benefit plan participation for up to 12 work weeks for eligible employees who need time off for their own serious health condition, certain family members’ serious health condition, or for bonding time with employees’ newborns or newly placed adopted or foster children.
In 2009, the FMLA regulations underwent a major overhaul, providing much needed clarifications on a variety of topics. However, the CFRA regulations remained in their original state from 1995. The “old” CFRA regulations either did not address various areas or were more general than the updated FMLA regulations.
In many areas, the updated CFRA regulations mirror the FMLA regulations and provide very helpful clarifications. There remain some areas where this is not the case, due in part to fundamental differences between the FMLA and CFRA statutes (e.g., pregnancy is not covered under CFRA as a serious health condition. This article covers some of the most significant updates. Click here for the complete regulations: http://www.dfeh.ca.gov/res/docs/FEHC/Final%20Text%20(1).pdf
1. Employee Eligibility Factors
In order to be eligible to take a CFRA-covered leave, employees must meet three eligibility criteria: (1) work for at least 12 months for their employer who has at least 50 employees; (2) work at least 1,250 hours in the year preceding the leave; and (3) work in a qualifying location.
The CFRA regulations address the issue of employees who worked for more than 12 months for their employer, followed by a break in service. The new regulations track the FMLA regulations by providing that periods of employment preceding a break in service of seven or more years need not be counted, except for breaks caused by military service or written agreement to the contrary.
Another scenario relates to an employee who begins a leave of absence before completing the 12-month service requirement, but then meets the requirement during the leave. The CFRA job reinstatement period begins upon the employee’s 12-month anniversary date, but not before.
The CFRA regulations provide that an employee must work for an employer who has at least 50 employees within 75 miles of the worksite where the employee requesting the leave is employed. The FMLA regulations use different language, providing that the employee must be employed at a worksite where 50 or more employees are employed within 75 miles of that worksite. The new CFRA regulations clarify that employees who have no fixed worksite are viewed as working at the site from which their work is assigned or to which they report and,in the case of joint employers, the primary employer’s office location is used except where the employee has worked for a year at the secondary employer’s facility.
2. “Serious Health Condition” and Health Care Provider Certification Issues
Various aspects of the definition of the definition of “serious health condition” are clarified. For example, treatment for substance abuse is covered. “Inpatient care” includes admission to a health care facility with the expectation of an overnight stay even if the person is discharged before that occurs. The new regulations did not update the definition of “continuing treatment” as the FMLA regulations did. Thus, it continues to include incapacity for three consecutive calendar days and treatment two or more times by a health care provider, or one treatment that results in a continuing course of treatment.
The CFRA regulations contain some modifications to the health care certification form. They also provide that employers may utilize any other certification form so long as the health care provider does not disclose the underlying diagnosis of the patient without consent. Thus far, the DFEH has not published a stand-alone certification form.
The new CFRA regulations clarify that if employees fail to timely return the health care certification following the 15-day time period, employers may deny CFRA protections until a sufficient certification is provided. If the employee never produces the certification or recertification, the leave does not qualify as CFRA leave.
The FMLA regulations allow employers to contact an employee’s health care provider directly to clarify a medical certification so long as the employee authorizes such a communication. However, the new CFRA regulations state that the employer may not contact a health care provider for any reason other than to authenticate a medical certification. This would appear to prohibit an employer from clarifying a CFRA medical certification.
Employers may obtain second opinions if there is a good faith, objective reason to doubt the validity of the health care certification the employee provides. Under the CFRA regulations, this pertains only to an employee’s medical leave whereas the FMLA regulations authorize employers to obtain second opinions for both medical and family leaves.
The CFRA regulations adopt some of the FMLA regulations’ provisions regarding releases to return to work by stating that an employer is entitled to a release for intermittent absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties. However, the regulations specify that employers are not entitled to a release to return-to-work for each absence.
The regulations add that employers may not require employees to undergo a fitness for duty examination as a condition of an employee’s return from CFRA leave. After an employee returns, fitness for duty examinations must be job-related and consistent with business necessity.
3. Amount of Leave
The regulations continue the limitation that only the amount of leave actually taken may be counted toward the 12 weeks of leave. However, employers must limit leave increments to the shortest period of time that the employer’s payroll system uses to account for absences, provided it is not greater than one hour.
Regarding company holidays that fall during an intermittent CFRA leave in which the employee is taking leave in less than a one week increment, the holiday does not count as a CFRA-covered day unless the employee was otherwise scheduled to work on that day.
The regulations clarify that CFRA leaves are separate and distinct from employees’ rights to take a leave of absence as a reasonable accommodation under the disability provisions of the Fair Employment and Housing Act (FEHA). If an employee has a serious health condition that also constitutes a disability under FEHA and cannot return to work at the conclusion of the CFRA leave, the employer is obligated to engage in an interactive process with the employee to determine whether an extension of leave would constitute a reasonable accommodation.
4. Job Reinstatement Obligations and Retaliation Prohibitions
The new regulations clarify that employees are entitled to the same or comparable position that is equivalent (i.e., virtually identical) to the employee’s former position in terms of pay, benefits, schedule, location and working conditions. Employees are entitled to reinstatement even though they were replaced or their positions were restructured to accommodate their absence. An employee is no longer qualified for the position because the employee was unable to attend a necessary course or renew a license or the like due to the leave, the employer must provide a reasonable opportunity for the employee to fulfill the condition upon returning to work. These provisions conform to the FMLA regulations.
The new regulations specify that an employee who fraudulently obtains or uses CFRA leave is not entitled to job reinstatement or health benefit protections. The employer has the burden of proving the fraud.
Expanded retaliation prohibitions are included. The regulations provide that employers may not avoid their CFRA responsibilities by transferring employees from one worksite to another in order to reduce or keep a worksite below the 50-employee threshold, reducing an employee’s work hours to avoid their eligibility, or terminating an employee when it anticipates an otherwise eligible employee will be asking for CFRA leave.
Consistent with FMLA, CFRA provides that employees cannot trade off their rights under CFRA although settlement agreements waiving CFRA rights do not require the approval of the court. An employee’s voluntary acceptance of light duty while recovering from a serious health condition does not constitute a waiver of job reinstatement or other CFRA rights.
5. Paid Time Off and Benefit Plan Continuation Issues
The new regulations clarify the circumstances in which employers may require employees to use accrued paid time off. Employers may require employees to use any accrued vacation time, accrued PTO or accrued sick leave that employees are eligible to take during the otherwise unpaid portion of the CFRA leave for the employee’s own serious health condition or any other reason if mutually agreed upon between the employer and employee. If an employee is receiving a partial wage replacement benefit during the CFRA leave, which would typically include State Disability Insurance (SDI) benefits from the State of California, the employer and employee may agree to have vacation, PTO or sick time supplement this wage replacement benefit.
However, employers may not require employees to use vacation, PTO or sick time during a CFRA leave for the employee’s own serious health condition if the employee is receiving disability pay through a short-term or long-term disability plan. Moreover, employers may not require employees to use vacation, PTO or sick time during a CFRA leave for family leaves during such time that they are receiving Paid Family Leave wage replacement benefits from the State of California. Of course, employees may continue to elect to use accrued paid time off.
The prior regulations were silent regarding whether an overtime-exempt employee’s salary may be reduced in hourly increments during unpaid CFRA periods. The FMLA regulations addressed this issue, providing an exception to the salary payment requirement for most overtime exemption classifications. Various federal court cases have confirmed this “safe harbor.” The new CFRA regulations clarify that employers may reduce exempt employee’s pay during a CFRA leave so long as it is not inconsistent with any applicable state or federal law.
The new regulations provide clarifications regarding employers’ obligations to continue group benefit plan benefits during CFRA-covered leaves. Group health plan coverage must be maintained for employees on CFRA leave until the employee’s CFRA leave entitlement ends, the employer can demonstrate that the employee would have been terminated during the CFRA leave or the employee provides unequivocal notice of his or intent not to return to work. An employee who retires during a CFRA leave or during the first 30 days after returning is deemed to have returned from the leave for purposes of the employer’s ability to recoup the employer-paid premiums.
6. Employee and Employer Notice and Designation Requirements
The new regulations provide that employees must provide sufficient information to indicate the requested time off is CFRA-qualifying, although an employee’s mentioning of vacation or paid time off should not render the notice insufficient. Further, employees have an obligation to respond to an employer’s questions to determine whether the absence is potentially CFRA-qualifying and failure to respond to permissible inquiries may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying.
Employers must now respond no later than five (5) business days after receiving the employee’s request. The prior regulations allowed employers ten calendar days. This requirement does not prevent employers from making approval of the leave contingent upon the employee’s submission of an appropriate medical certification.
The new regulations clarify that employers may not retroactively designate CFRA leave after the employee has returned to work, except with appropriate notice to the employee and where the employer’s failure to timely designate does not cause harm or injury to the employee.
Employers continue to have an obligation to post notices regarding CFRA and, as found in the FMLA regulations, this obligation extends to applicants. Electronic postings are sufficient so long as they are available to employees and applicants. Employers whose workforce at any facility contains 10 percent or more persons who speak a language other than English as their spoken language must translate the notice into every language that is spoken by at least 10 percent of the workforce.
7. Practice Tips
* Carefully review your Leave of Absence policies, procedures and forms to determine areas in which the CFRA regulations require updates.
* Incorporate the new 5-day notice requirement into the FMLA-required notice forms.
* Be sure that you are using an acceptable medical certification form.
* Provide training to front-line supervisors on their leave of absence responsibilities.
The Law Offices of Mary L. Topliff provides tailored and compliant Leave of Absence guidelines and related materials, as well as employment law advice on situational issues that arise in the workplace.