California Governor Gavin Newsom greatly expanded the California Family Rights Act (CFRA) by signing SB 1383 into law.  SB 1383 goes into effect on January 1, 2021. Under this new law, small business employers with as few as 5 employees will be required to provide certain unpaid, job-protected family, medical, and military leave to eligible employees.

As the CFRA currently stands, only employers with 50 or more employees within a 75-mile radius (or 20 or more employees within a 75-mile radius for new child leave) are required to provide eligible employees up to 12 workweeks of unpaid protected leave during a 12-month period, if needed due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to bond with a new child. This protected leave is available to employees that worked at least 12 months with the company and worked at least 1,250 hours during the previous 12-month period of employment.

SB 1383, codified in Government Code section 12945.2, will now cover a substantially wider range of California employers- employers with 5 or more employees. The new law also eliminates the 75-mile radius requirement. As a result, if an employer has 5 employees that work anywhere in California, the employer is required to provide eligible employees job-protected leave. Governor Newsom stated that this lower threshold will impact “nearly 6 million Californians.”

To qualify for CFRA leave, the employee still must have worked at least 12-months with the employer and have worked at least 1,250 hours in the 12-month period before the leave begins.

An employee may take CFRA leave for the following reasons:

  • For the birth of a child or placement of a child with the employee in connection with an adoption or foster care;
  • To care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;
  • To care for the employee’s own serious health condition; or
  • Because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States

Currently, under the CFRA, parents who work for the same employer are limited to a collective 12 weeks of leave that may be taken to bond with their child. SB 1383 eliminates this limitation.  Under the new law, new parents working for the same employer are both able to benefit from this leave and each may take up to 12 workweeks of unpaid job-protected leave.

Notably, the federal Family and Medical Leave Act (FMLA) does not cover all of the categories established in SB 1383. SB 1383 expands the definition of family member to include grandparents, grandchildren, siblings and children of domestic partners.  Previously, only parents, children, spouses or registered domestic partners were included.

The CFRA also eliminates the “key employee” exception. The “key employee” exception allowed employers to refuse reinstatement to the same or comparable position if the employee was in the highest paid 10% of employees.

SB 1383 will cause California employers to revisit how they handle requests for leave under the new law. Employers who will be subject to CFRA beginning January 1, 2021 should familiarize themselves with the law’s requirement. Employers should consider whether any updates are appropriate to their employee handbooks and/or leave policies.