*Guide to the New California Family Rights Act (CFRA) Regulations

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2 1 *Guide to the New California Family Rights Act (CFRA) Regulations All citations in this Guide are to the California Family Rights Act regulations contained in the California Code of Regulations, Title 2, Div. 4.1, Chapt. 5, Subchapt. 2, Article 11 I. New CFRA Regulations Overview a. Take effect on July 1, 2015 b. Why were the regulations updated? i. Out of step with FMLA rule updates that took effect in 2009 and 2013 ii. New court decisions to incorporate iii. Update poster and certification form iv. Other updates and clarifications c. The updates cover these sections of the CFRA regulation: i. Definitions ii. Reinstatement iii. Time period computation iv. Requests v. Certification vi. Designation vii. Terms of leave viii. Retaliation ix. Posting II. Relationship with FMLA Regulations a. The existing CFRA regulations incorporated by reference the FMLA regulations issued in 1995 therefore, the newer FMLA rules could not be relied on to interpret CFRA obligations b. The updated CFRA regulations now incorporate by reference the FMLA regulations that became effective March 8, 2013 (which also encompass the 2009 FMLA rule updates) to the extent not inconsistent with any provision of the CFRA i. Clears up confusion about what provisions of the FMLA regulations will apply under the CFRA III. Definitions a. Covered Employer [2 C.C.R (d)] i. Now includes successors in interest of a covered employer

3 2 ii. Discussion of joint employers [2 C.C.R (d)(3)] 1. Determination of joint employer status is based on totality of the circumstances b. Eligible Employee [2 C.C.R (e)] i. Must be employed for a total of at least 12 months 1. Prior regulations indicating more than were inconsistent with FMLA regulations ii. Twelve months must be anytime prior to the commencement of the CFRA leave iii. Employee may become eligible while out on leave - and portion of leave after employee meets the 12-month requirement must be designated as CFRA leave iv. Adds provision on breaks in service v. Clarifies requirement that employee must work at worksite where there are at least 50 employees within 75 miles - including for employees with no fixed worksite [2 C.C.R (e)(4)] 1. Example from regulations: If salesperson works from home in CA, but reports to and receives assignments from corporate headquarters in NY, the NY headquarters, not home, would constitute the worksite from which there must be 50 employees within a 75-mile radius in order to establish eligibility c. Serious Health Condition [2 C.C.R (q)] i. Continuing treatment definition is included only in the new CFRA medical certification form [2 C.C.R (q)(3); 11097] 1. Continues to differ from FMLA regulations: no requirement that days of incapacity be full calendar days, and no requirement that the treatments be within 30 days of the first day of incapacity, or that the first treatment/visit be within seven days of the first day of incapacity ii. Inpatient care means a stay in a hospital etc. and any subsequent treatment or period of incapacity in connection with such stay [2 C.C.R (q)(1)] d. Other Definitions 1. Inpatient means the health care facility formally admits the person with the expectation of an overnight stay, even if the person does not stay overnight 2. FMLA regulations require an overnight stay i. Adds a definition of key employee (and new provisions from FMLA regulations regarding denial of reinstatement of a key employee) [2 C.C.R (k)] ii. Adds a definition of reason of the birth of a child, to include, without limitation, bonding with a child after birth [2 C.C.R (o)] iii. Clarifies that spouse includes a registered domestic partner and same-sex spouses [2 C.C.R (r)] 1. FMLA regulations were recently updated to indicate that same-sex spouses are covered based on place of celebration regardless of whether the employee resides in a state that recognizes same-sex

4 3 marriage A Texas District Court has since blocked implementation of the rule in Texas, Arkansas, Louisiana and Nebraska IV. Limitations on CFRA Entitlement a. Clarifies limitation on CFRA entitlement when both parents are employed by the same employer [2 C.C.R (c)] i. Employer may limit leave for birth, adoption or foster care placement to a combined total of 12 weeks between the two parents ii. CFRA entitlement may not be limited for other purposes - for example, each parent may take 12 weeks of CFRA leave if needed to care for child with serious health condition iii. FMLA limitation applies when the parents are husband and wife, and the FMLA limitation also includes time off to care for a parent with a serious health condition V. Reinstatement [2 C.C.R ] a. Right to Reinstatement [2 C.C.R (a)-(b)] i. Employer must inform the employee, when the leave is granted, of the guarantee of reinstatement to the same or comparable position [2 C.C.R (a)(1)] ii. If an employee is no longer qualified for a position because of inability to attend a course, renew a license, etc. due to the leave, the employee must be given a reasonable opportunity to fulfill any such condition upon returning to work (consistent with FMLA regulations) [2 C.C.R (a)(2)(B)] iii. Adds new section on rights upon return requiring reinstatement to same or comparable position (i.e. equivalent or virtually identical in pay, benefits, shift/schedule, location, work conditions, duties, responsibilities) [2 C.C.R (b)] iv. Upon reinstatement, an employer can accommodate an employee s request to be restored to a different shift, schedule, position, or location that better suits the employee s needs or to comply with reasonable accommodation obligation for a disabled employee (consistent with FMLA regulations) [2 C.C.R (b)(2)] b. Reinstatement Defenses [2 C.C.R (d)] i. Expanded to include circumstances where employment would have ceased or hours would have been reduced [2 C.C.R (d)(1)] ii. Employer has burden to show that the employee would not otherwise have been employed on the requested reinstatement date [2 C.C.R (d)(1)] 1. Previously was at the time reinstatement is requested - FMLA regulations still contain this language 2. Clarifies that this defense does not apply if the employee was replaced or position restructured to accommodate the employee s absence (consistent with FMLA regulations) iii. New provision specifies that an employee who fraudulently obtains or uses CFRA leave is not protected by the job restoration or maintenance of health

5 4 benefits provisions, but it is the employer s burden to prove the fraud (FMLA does not specify that employer has the burden) [2 C.C.R (d)(3)] VI. Computation of Time Periods [2 C.C.R ] a. Discusses methods for determining the 12-month period (consistent with FMLA regulations) [2 C.C.R (b)] b. Adds provision on treatment of holidays when employee uses CFRA leave in increments of less than a full week - holiday does not count against CFRA entitlement unless the employee was otherwise scheduled and expected to work that day (consistent with FMLA regulations) [2 C.C.R (c)(3)] c. Adds provision on overtime, specifying that an employee will use intermittent or reduced schedule leave when he or she cannot work normally scheduled overtime because of a CFRA-qualifying reason (consistent with FMLA regulations) [2 C.C.R (c)(4)] VII. Intermittent Leave [2 C.C.R (c)-(e)] a. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to disrupt the employer's operations (consistent with FMLA regulations) [2 C.C.R (c)(2)] b. Employer must limit leave increments to the shortest period of time that the payroll system uses to account for absences or leaves, provided it is not greater than one hour (consistent with FMLA regulations) [2 C.C.R (e)] c. For bonding leaves, in addition to the requirement of granting a request for a CFRA leave of less than two weeks duration on any two occasions, the employer may grant requests for additional occasions of leave lasting less than two weeks (CFRA only) [2 C.C.R (d)] d. Employer may require temporary transfer if intermittent leave is granted for the birth of child, adoption or foster care placement (consistent with FMLA regulations) [2 C.C.R (e)(1)] e. Clarifies how intermittent leave should be designated where employee cannot commence or end work midway through a shift (consistent with FMLA regulations) [2 C.C.R (e)(3)] f. Employers may reduce exempt employees pay for intermittent or reduced schedule leave (consistent with FMLA regulations) [2 C.C.R (e)(4)] VIII. Requests and Notice [2 C.C.R ] a. Employee Notice [2 C.C.R (a)] i. Employees must respond to employer s questions designed to determine whether a leave is CFRA-qualifying, and failure to do so may result in denial of CFRA protection if employer cannot determine whether the leave is CFRAqualifying [2 C.C.R (a)(1)] 1. FMLA regulations require that an employee who seeks leave due to a reason for which the employer previously provided FMLA leave specifically reference the qualifying reason for leave

6 5 b. Employee Notice and Vacation i. Mention of vacation or other paid time off does not render notice insufficient if the underlying reason is CFRA-qualifying and that reason is communicated to the employer [2 C.C.R (a)(1)] ii. CFRA regulations still specify that if employee only requests vacation without reference to a CFRA-qualifying purpose, employer may not inquire further [2 C.C.R (a)(1)] iii. Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236: concluded that an employee can affirmatively decline to use FMLA leave c. Employer Response Court i. Employers now have 5 business days to respond to a leave request [2 C.C.R (a)(6)] 1. Regulations previously gave employers 10 calendar days 2. Change aligns CFRA rules with FMLA requirement to provide eligibility notice within 5 days of employee notice of need for leave IX. Medical Certification a. Employers may not contact health care provider except to authenticate a certification (i.e. to verify that the health care provider did in fact complete the certification form) [2 C.C.R (b)(1)] i. FMLA allows contact to clarify or authenticate a certification b. Confirms that an employer may not ask for symptoms, diagnosis, etc. in any medical certification [2 C.C.R (b)(2)(A)(1)] c. Failure to return a certification may result in denial of CFRA protections until a sufficient certification is provided; if the certification is never provided, the leave is not CFRA leave [2 C.C.R (b)(3)] i. The employer must advise the employee of the consequences of failure to provide certification (consistent with FMLA regulations) d. Second opinions i. In contrast with FMLA, the CFRA regulations continue to permit second opinions only where leave is for employee s own serious health condition, and not permitted for other CFRA-qualifying reasons [2 C.C.R (b)(2)(A)] ii. Adds that employers must have a good faith, objective reason to doubt the validity of a certification before requiring a second opinion e. Recertification i. Continues to be permitted only upon the expiration of the time period certified by the health care provider in the initial certification, when additional leave requested [2 C.C.R (b)(1)] ii. FMLA regulations permit recertification more frequently, no less than every six months f. Return-to-Work Release

7 6 i. Employers are not entitled to a return-to-work release for each intermittent or reduced schedule absence, except that the employer is entitled to a release up to once every 30 days if reasonable safety concerns exist [2 C.C.R (b)(2)(E)] ii. Employers may not require fitness for duty exams as a condition of an employee s return to work [2 C.C.R (b)(2)(F)] iii. After reinstatement from CFRA leave, any fitness-for-duty exam must be job related and consistent with business necessity, under FEHA standards [2 C.C.R (b)(2)(E)] iv. White v. County of Los Angeles (2014) 225 Cal.App.4th 690: Employer did not violate FMLA by requesting she undergo a fitness-for-duty evaluation after it restored her to her position, based on employee s erratic behavior prior to the FMLA leave X. Terms of Leave a. Substitution of Paid Leave i. Vacation: Employee may elect to use or employer may require employee to use accrued vacation or other paid time off during an unpaid portion of any CFRA leave [2 C.C.R (b)(1)] ii. Sick leave: Employee may elect to use or employer may require employee to use accrued sick leave during an unpaid portion of a CFRA leave for employee s own serious health condition or other reason agreed to by employer and employee [2 C.C.R (b)(1)] 1. Interplay with California paid sick leave? AB 1522 requires that employers provide paid sick leave for family medical purposes, but CFRA regulations would prohibit employers from requiring an employee to use paid sick leave during an otherwise unpaid portion of a CFRA leave iii. If employee is receiving a partial wage replacement benefit (SDI, PFL, etc.) the employer and employee can agree to have employer-provided paid leave supplement the partial wage replacement benefit [2 C.C.R (b)(1)] iv. An employee receiving any form of disability payments or PFL benefits is not on unpaid leave, and therefore the employer cannot require substitution of paid time off [2 C.C.R (b)(1)] b. Health Benefits i. An employer s obligation to continue health benefits during a CFRA leave is in addition to the obligation to continue health benefits during a pregnancy disability leave (even if the pregnancy leave is also a FMLA leave) [2 C.C.R (c)(2)] 1. Aligns with health benefits provision in the recent pregnancy regulations ii. Other changes conform CFRA health benefits provisions to FMLA: 1. When employers can cease health coverage [2 C.C.R (c)(6)] 2. Employee payment of health premiums [2 C.C.R (d)]

8 7 XI. Pregnancy and Disability Leave a. Pregnancy Disability Leave [2 C.C.R ] i. Addresses maximum entitlement to leave [2 C.C.R (d)] 1. Pregnancy disability = 4 months 2. CFRA bonding leave = 12 weeks 3. Additional leave as a reasonable accommodation for pregnancy-related disability b. The right to take a CFRA leave is separate and distinct from the right to take a disability leave under the California Fair Employment and Housing Act [2 C.C.R (a)] i. An employer has the obligation to engage in an interactive process to determine a reasonable accommodation for an employee who has a serious health condition that also is a disability and cannot return to work at the conclusion of the CFRA leave XII. Retaliation and Interference a. Changes conform CFRA health benefits provisions to FMLA: b. Explanation and examples of interfering with an employee s rights under CFRA [2 C.C.R (a)] c. No waiver of prospective rights under CFRA [2 C.C.R (c)] d. Protection from retaliation [2 C.C.R (d)] XIII. New Poster and Forms a. Workplace Posting [2 C.C.R (a)] i. Updated CFRA poster ii. Must be posted in conspicuous place where it can be easily seen by employees and applicants [2 C.C.R (a)] iii. Poster and text must be large enough to be easily read [2 C.C.R (a)] iv. Must be translated into any language spoken by 10 percent or more of employer s workforce [2 C.C.R (c)] v. Electronic posting is sufficient [2 C.C.R (a)] vi. CFRA leave provisions must be included in an employee handbook [2 C.C.R (a)] b. Certification Form [2 C.C.R ] i. Updated certification form ii. Includes Cal-GINA genetic information warning iii. Includes additional questions regarding intermittent leave, reduced schedule leave, and time off for medical appointments iv. Warning against disclosure of underlying diagnosis

9 8 XIV. CFRA-FMLA Differences FMLA Rules CFRA Rules Serious Health Condition (SHC) - Continuing Treatment Must visit a health care provider on 2 occasions and have more than three full days of incapacity No requirement that days of incapacity be full calendar days The first visit/treatment must occur within 7 days of the first day of incapacity No requirement that the first treatment/visit be within 7 days of the first day of incapacity The 2 visits/treatments must occur within 30 days from the first day of incapacity No requirement that the visits/treatments be within 30 days of the first day of incapacity Serious Health Condition - Inpatient Care Inpatient care means an overnight stay in a hospital, hospice or residential medical facility No actual requirement of an overnight stay so long as admitted with the expectation of an overnight stay Pregnancy Disability Covered as a SHC Not a SHC under CFRA (separate California Pregnancy Disability Leave (PDL) entitlement) Entitlement of up to 12 weeks of FMLA leave and health benefits Separate, PDL entitlement of up to 4 months of leave/health benefits PLUS up to 12 weeks of leave/health benefits for a CFRA-covered reason Military Family Leave Military caregiver: 26 weeks of leave to care for injured service member No comparable CFRA leave; could fall under CFRA leave to care for family member with SHC Qualifying exigency: 12 weeks of leave because spouse, child or parent called to military duty No comparable CFRA provision; CFRA not exhausted when this FMLA leave is used Intermittent Leave Baby bonding leave may be intermittent only if employer agrees Baby bonding leave may be taken in increments of two weeks except on any two occasions employee may choose to take in shorter durations

10 9 FMLA Rules CFRA Rules Medical Certifications May contact health care provider to clarify or authenticate certification May contact health care provider ONLY to authenticate No specific restrictions on obtaining diagnosis May not require underlying diagnosis/symptoms Recertification no less than every six months Recertification only upon expiration of time period initially certified if additional leave requested Second opinions for employee/family member SHC Second opinions only for employee s SHC Second opinion when reason to doubt the validity of certification Second opinion when good faith, objective reason to doubt the validity of certification Substitution of Paid Leave Employer may require or employee may elect to substitute paid leave for any FMLA leave Employer may require or employee may elect to substitute vacation/pto for any CFRA leave; employer may require sick leave substitution only for employee s own SHC or other reasons if employee-employer agree Employee Notice Employee seeking leave for reason for which FMLA leave previously granted must reference that qualifying reason No similar limitation No similar requirement If employee requests vacation without reference to CFRA-qualifying purpose, employer may not inquire further Same Employer Combined limit of 12 weeks for baby bonding or caring for family member with SHC when husband and wife work for same employer Combined limit of 12 weeks for baby bonding when both parents work for same employer