The California Fair Employment and Housing Council just issued the final revised California Family Rights Act (CFRA) regulations.

The amended regulations clarify certain CFRA provisions and align the CFRA more closely with the federal Family and Medical Leave Act, though important differences still remain between the two laws, both of which apply to employers with 50 or more employees.

Here we highlight the most significant impacts the new CFRA regulations will have on California employers. You can review the full text of the CFRA regulations here.

The new regulations will go into effect on July 1, 2015

The Key Updates to CFRA

Covered Employer

The definition of "covered employer" adds guidance for joint employer settings-when two or more businesses exercise control over the employee's work or working conditions then both may be considered joint employers under the CFRA.

Covered Employee

The definition of "eligible employee" clarifies the 12 month length of service requirement and explains how to determine whether there are 50 employees within a 75 mile radius for an employee who has no fixed worksite-the regulations clarify that if a person works from home, the worksite to which they are assigned as their home base, from which their work is assigned or to which they report is their worksite, not their home office.

Definition of Spouse

The CFRA regulations now expressly include registered domestic partners and same-sex partners in marriage in the definition of "spouse."

Length of Service

If an employee does not have the twelve month length of service to qualify for a CFRA leave at the start of a leave but reaches the 12 month service requirement during the leave, the employer must provide CFRA leave when the employee qualifies.

Reinstatement/Key Employees

The reinstatement provisions, including an expanded reinstatement guarantee, permissible defenses to a refusal to reinstate, and "key employee" rules.

The new CFRA regulations also make a number of other important modifications, including updates to the required workplace poster and a new medical certification form.

CFRA and FMLA Differences

There also remain a number of key differences between FMLA and CFRA. Some of the notable differences include:

Pregnancy disability

Pregnancy disability is not covered under CFRA. Pregnancy disability is covered under the FMLA. The CFRA regulations clarify, consistent with prior clarifications, that an employer must maintain an employee's group health benefits for the entire time the employee is on pregnancy disability (a maximum of four months) and also during any additional CFRA leave (a maximum of 12 weeks).

Medical Certifications

The CFRA only permits an employer to contact an employee's medical provider to authenticate a medical certification. Under the new CFRA regulations, the employer is not permitted to seek "clarification" of the medical certification. This contrasts with the FMLA which permits the employer to contact the medical provider for authentication and clarification.

Medical Second Opinions

Under the CFRA, an employer may not seek a second medical opinion unless it has a "good faith, objective reason" to doubt the employee's original medical certification. The standard under the FMLA permits an employer to seek a second medical opinion when it has "reason to doubt" the employee provided certification.

Substituting Paid Leave

The CFRA provides slightly less discretion than the FMLA for the employer to substitute the employee's paid sick leave for unpaid CFRA leave. For an employee's own serious health condition, the employer may require the employee to use paid sick leave. For CFRA leave for any other reason, the employer cannot force the employee to use paid sick leave. An employer may require an employee to use accrued vacation or PTO for any unpaid CFRA leave.

How to Start Preparing Now

Start the process of making changes now, so that all your materials are up to date, your staff knows what is expected, and you are in compliance with the new regulations when July 1 rolls around.

Review:

• Notice documents/posters
• Written eligibility and determination letters
• Employee handbooks
• Company leave policies

Train your people on what they'll need to know to manage the new CFRA regulations and company policy changes, including:

• Human Resources staff
• Benefits staff
• Supervisors
• Managers

And, as of July 1, you'll need to replace your workplace posters and medical certification forms.

Administration of medical and other leaves is a complex process. If you have questions about the new CFRA regulations, or any other employment issue, please contact us.

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