Updated California Family Rights Act Regulations to Take Effect on July 1, 2015 (CCD)

The California Family Rights Act (“CFRA”) regulations have been amended. These amendments take effect on July 1, 2015. The full text of the amendments is attached to this legal update.

LEGAL UPDATE

June 5, 2015

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From:  Jennifer E. Nix, Schools Legal Counsel

Subject:  Updated California Family Rights Act Regulations to Take Effect on July 1, 2015

Memo No. 07-2015 (CC)

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The California Family Rights Act (“CFRA”) regulations have been amended.[1]  These amendments take effect on July 1, 2015.  The full text of the amendments is attached to this legal update.

The amendments clarify a number of definitions and rules from the prior CFRA regulations.  The amendments were intended to more closely align the CFRA regulations to the Federal Family and Medical Leave Act (“FMLA”).  The amendments incorporate the March 2013 FMLA regulations to the extent that the FMLA regulations are not inconsistent with the CFRA regulations.[2]

The amendments contain both non-substantive and substantive changes.  The changes are extensive, and I recommend that you read the entirety of the new regulations.  Key provisions are highlighted below.

Changes to Definitions

(2 California Code of Regulations (“CCR”) Section 11087)

• Covered Employer:  Defines joint employers.  The new regulations do not provide any single criteria for determining whether a joint-employer relationship exists, but provide several examples of joint employment relationships.
• Eligible Employee:  Newly defines “worksite.”  Clarifies that leave time to which an employee is entitled counts as length of service for CFRA purposes.
• Key Employee:  Defines “key employee” as an employee paid on a salary basis who is among the highest paid ten percent of the employer’s employees.[3]
• Reason of the Birth of a Child:  Defines “reason of the birth of a child” to clarify that “reason of the birth of the child” is a formal version of the term “baby bonding” or “bonding with a child after birth.”
• Reinstatement:  Clarifies definition to be synonymous with “restoration” under the FMLA.
• Serious Health Condition:  Clarifies that on-the-job injuries are not the only injuries constituting a serious health condition, and that inpatient care or continuing treatment, including treatment for substance abuse, can be a serious health condition.
• Spouse:  Amends the definition of spouse to include same-sex partners in marriage and registered domestic partners.[4]

Changes to Right to Reinstatement; Guarantee of Reinstatement; Rights upon Return; Refusal to Reinstate; Permissible Defenses

(2 CCR Section 11089)

• Guarantee of Reinstatement:  Emphasizes that the guarantee of reinstatement is not altered if an employee lapses on a job requirement while on CFRA leave.  The employee must be given “a reasonable opportunity” to fulfill any necessary conditions prior to returning to work.
• Rights Upon Return:  Clarifies that the employee’s position upon return should be as close as possible to his/her former position; his/her benefits should be equivalent; the employer and employee can agree to a different arrangement upon return; and the employer is obligated to provide a reasonable accommodation to the employee under the disability provisions of the Fair Employment and Housing Act (“FEHA”).
• Permissible Defenses:  Clarifies that an employer is not required to recreate a shift or overtime hours that have been eliminated.
• Key Employee:  Extensively amends the provisions regarding the identity of key employees and their reinstatement rights.
• Fraudulently-obtained CFRA Leave:  Denies job restoration and maintenance of health benefits to employees who fraudulently obtain or use CFRA leave.  The employer has the burden of proving that an employee committed the fraudulent conduct.

Changes to Computation of Time Periods: Twelve Workweeks; Minimum Duration

(2 CCR Section 11090)

• Leave Periods Common to Both CFRA and FMLA:  Details how to establish the leave year.
• Twelve Workweeks:  Clarifies how to calculate leave when an employee has a variable schedule, when the leave term includes a holiday, when the employee is normally required to work overtime, and when the employer has made a permanent or long-term change in the employee’s schedule prior to the employee’s need for CFRA leave.
• Intermittent or Reduced Leave Schedule:  Clarifies how to manage situations where it is physically impossible for an employee using intermittent or reduced work schedule leave to begin or end work midway through a shift.

Changes to Requests for CFRA Leave: Advance Notice; Certification; Employer Response

(2 CCR Section 11091)

• Advance Notice:  Clarifies how to manage situations in which it is not clear if an employee’s request is for CFRA leave.  An employer has notice that CFRA leave is being sought by an employee even if the employee does not expressly assert rights under CFRA or FMLA or mention either statute, so long as the employee states the reason the leave is needed.  Further, it does not matter if the employee refers to “vacation,” some other form of paid time off, or resignation, so long as the employee states the reason leave is needed.  The employer should, in those situations, inquire further to determine whether the employee is requesting CFRA leave and to obtain necessary information about that leave.  The employee is required to respond to such questions, and a failure to respond can result in the denial of CFRA protection if the employer cannot determine whether the requested leave is CFRA-qualifying.
• Advance Notice:  Reduces to five business days the time in which the employer must respond to a leave request.
• Medical Certification:  Adds that the employer may not contact a healthcare provider for any reason other than to authenticate a medical certification.  Requires employers to have a “good faith, objective reason” to doubt the validity of a serious health condition prior to requiring a second opinion from a healthcare provider.
• Fitness-for-Duty/Return-to-Work:  Clarifies the employer’s ability to require a fitness-for-duty examination or to seek a return-to-work release from the employee’s healthcare provider.

o   An employer may require that an employee obtain a release to return to work from his or her healthcare provider as a condition of the employee’s return from medical leave.  However, in order to require such a release, the employer must have a uniformly applied practice or policy of requiring such releases, and there cannot be a collective bargaining agreement prohibiting a return-to-work release requirement.  If an employee is on an intermittent or reduced leave schedule, an employer may only ask for a return-to-work release once every 30 days, and only if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.

o   An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee’s return.  Any fitness-for-duty examination following CFRA leave must be job-related and consistent with business necessity. 

Changes to Terms of CFRA Leave

(2 CCR Section 11092)

• Paid Leave:  Clarifies permitted substitutions of paid time off, sick leave, accrued vacation, or other benefits for unpaid CFRA leave.
• Provision of Health Benefits:  Expands provisions on continuation of coverage and payment of premiums during CFRA leave.
• Employee Payment of Group Health Benefit Premiums:  Explains when employees must pay premiums for group health plan coverage.

Changes to § 11094: Retaliation and Protection from Interference with CFRA Rights

(2 CCR Section 11094)

The new regulations significantly expand protections against interference with protected rights and retaliation, which conforms state regulation to Federal regulation.  The new regulations:

• Define interference and provide examples.
• Clarify that the prohibition extends to discrimination or retaliation.
• Specify that an employee cannot waive prospective CFRA rights.
• Explain that all individuals are protected from retaliation, not just those employees who are CFRA-qualified.

Changes to Notice of CFRA Rights and Obligations

(2 CCR Section 11095)

• Posting:  Permits electronic posting.
• Non-English Speaking Workforce:  Requires notice to be translated into any language spoken by at least ten percent of the workforce.
• Text of Notice:  Amends the mandatory poster text.

Changes to Certification Form

(2 CCR Section 11097)

• Revises the sample Certification of Health Care Provider form.

Recommended Actions

I recommend that districts review the new CFRA regulations in their entirety, as the changes are extensive.  You should review and update if necessary all CFRA notice documents and posters, form eligibility and determination letters, employee handbooks, and related benefits.  It does not appear that CSBA has revised its related sample policies.  However, CSBA will likely do so, and you should check on those sample policies in the future.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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