Proposed Changes to Leaves of Absence

In February, 2014, California’s Department of Fair Employment and Housing Council (FEHC) published proposed amendments to the California Family Rights Act (CFRA) regulations. These regulations are intended to clarify some aspects of the existing regulations and also to adopt many of the recent amendments to the federal FMLA regulations to make the two acts more consistent. The proposed amended regulations touch on almost every aspect of the CFRA process, addressing, among other things:

1. Employee length of service/eligibility issues,
2. The certification process and timeframes for responding to employee requests for CFRA leave
3. Computation of amount of leave entitlements,
4. Key employee issues,
5. Clarification of reinstatement rights,
6. maintenance of health and other benefits during leave,
7. Retroactive designation of leave, and the interplay between CFRA leave and California pregnancy disability leave.

The proposed regulations make clear that same-sex spouses are covered under CFRA and make clear that the FMLA regulations apply to CFRA leave “to the extent not inconsistent” with the CFRA regulations. Importantly, there remain some areas where CFRA administration will continue to differ from FMLA administration. Among other things, pregnancy disability is not covered under CFRA and, therefore, a California employee who is otherwise eligible for leave under CFRA/FMLA will be eligible for up to four months of leave for pregnancy disability AND up to twelve weeks of additional leave for baby-bonding under CFRA. The proposed regulations make clear that a California employer is required to maintain the employee’s group health benefits for this whole time period (and not just up to 12 weeks). Some other notable differences between CFRA and FMLA are that the medical certification and scope of permissible medical inquiry are narrower under California law than under FMLA, and the circumstances under which an employer can seek re-certification are narrower under California law. The proposed regulations provide a sample medical certification that California employers can use.

Employers covered by CFRA should carefully review the proposed regulations and consider whether to submit comments and/or proposed revisions. The full text of the proposed amended regulations is available www.dfeh.ca.gov. Comments can be submitted via email to FEHCouncil@dfeh.ca.gov. There will also be two public hearings on the proposed amended regulations: 10:00 a.m. on April 7, 2014 at UC Irvine School of Law, and 10:00 a.m. on June 2, 2014 at the California Public Utilities Commission Main Auditorium in San Francisco. I will be attending the event on April 7, 2014.

Note: This Saturday, March 15, 2014, I will be on my podcast discussing and taking calls regarding the certification information employers can require from the medical provider. Please call in between 9:15 a.m. and 10:15 a.m. (855-457-6887).