Small Employers Obligated to Provide 12-Weeks of Job Protected Leave for Employees
If you are a business with under 50 employees, you are in for significant changes beginning January 1, 2021. On September 17, 2020 Governor Newsom drastically expanded protected leave for employees in California. Senate Bill No. 1383 (“SB 1383”) expands the obligation of small employers to provide job-protected leave, provides for leave to be taken for additional reasons, and eliminates certain exceptions to employer obligations to provide leave.
Prior to the passage of SB 1383, under the California Family Rights Act (“CFRA”), companies with 50 or more employees, amongst other requirements, were required to provide 12 workweeks of unpaid job protected leave during a 12-month period to employees who have worked 1,250 hours during the previous year, due to the employee’s own serious health condition, to bond with a new child, or to care for a qualifying family member with a serious health condition.
Most small businesses have never had to deal with protected medical leaves, and there is a steep learning curve to educating yourself on this law. The time can be taken in one lump-sum (12 total weeks off) or intermittently (e.g. an employee can call in sick one day per week, with absolutely no repercussion if it is protected under this new law). In addition, small employers must now continue to pay for health care benefits while their employees are out on leave.
Prior law mainly applied to immediate family members (i.e., spouse, parent, child) if an employee was taking time off time under CFRA to care for a family member, but SB 1383 expands the family members to care for a grandparent, grandchild, or sibling with a serious health condition.
For businesses with more than 50 employees this change will pose a significant change. CFRA will now differ from the Family Medical Leave Act (“FMLA”) which means that leave to care for a grandparent, grandchild, or sibling is not provided under the FMLA and FMLA time cannot be charged. The impact is that employees who take CFRA leave to care for a grandparent, grandchild, or sibling would still have 12 weeks of job-protected leave available to take for other qualifying reasons if they are eligible for FMLA leave. This equates to up to 24-weeks of job protected leave.
SB 1383 also eliminates two existing CFRA exemptions. Currently, if the employer employs both parents of a child, the employer can limit the total amount of leave taken by the parents to bond with the child to a total of 12 workweeks. SB 1383 eliminates this exemption so now both parents can take bonding leave – potentially at the same time.
SB 1383 also eliminates the current “key employee” exception, which allows employers to refuse reinstatement to salaried employees who are among the highest paid 10 percent of the company’s employees within a 75-mile radius. SB 1383 would no longer contain a “key employee” exception.
Small employers (under 50) will need to draft CFRA leave policies and institute leave procedures, and will need to approve, administer and track employee leaves after the law becomes effective. This means an update to your handbook at a minimum. Larger companies will also need to update their CFRA policies and forms, as employees will be able to take leave for additional reasons, and existing exceptions will no longer apply.
This change is huge for small employers and we recommend reaching out to the experts at McKague Rosasco LLP for guidance on how this change will impact your business.
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