Briefing Regarding Revisions to the California Family Rights Act Presented by: Julie Capell Annette Salazar-Shreibati June 17, 2015
Today’s eLunch Presenters Julie Capell Annette Salazar-Shreibati Partner Associate Los Angeles Los Angeles jcapell@winston.com ashreibati@winston.com
Overview of Today’s Topics • An examination of the California Family Rights Act (“CFRA”) changes effective July 1, 2015: • Incorporate March 6, 2013 FMLA regulations to the extent they align with the scope of Government Code section 12945.2 • Greatly expand which employers and employees are covered under CFRA • Increase employer’s obligations vis-à-vis communications with employees regarding their medical leave • Add CFRA penalty provisions for employees who do not comply with CFRA regulations 3
Changes to CFRA Definitions “Covered employer [Aligns with FMLA] • Adds successors in interest of covered employers who directly employ 50 or more persons within 75 miles of worksite • Number of employees includes employees on paid or unpaid leave, disciplinary suspension, or other work absence so long as employer reasonably expects employee will later return to active employment “Joint employer” [Aligns with FMLA] • Where two or more businesses exercise some control over work or working conditions of employee, businesses may be joint employers under CFRA “ Eligible employee” [Aligns with FMLA] • At least 12 months (52 weeks) and 1,250 hours during 12-month period before leave • Employment periods prior to break in service of 7 years or more need not be counted in determining 12-month requirement unless caused by military service or written agreement • Employees who have not met 12-month requirement at start of leave may become eligible during leave 4
Changes to CFRA Definitions “Worksite” [Aligns with FMLA] • Can refer to single location or group of contiguous locations • For employees with no fixed worksite, worksite is considered site to which they are assigned as home base, from which their work is assigned, or to which they report • When employee is jointly employed, employee’s worksite is primary employer’s office from which employer is assigned or reports, unless employee physically worked for at least one year at facility of secondary employer, in which case employee’s worksite is that of secondary employer “Key employee” [Aligns with FMLA] • Paid on salary basis and among highest paid 10% of employees within 75 miles of worksite “Reason of the birth of a child” [Aligns with FMLA] • Includes, but is not limited to, bonding with child after birth 5
Changes to CFRA Definitions “Serious health condition” [Aligns with FMLA] • Includes treatment for substance abuse “Inpatient care” • Includes not only overnight stays at hospital, but also anticipated overnight stays (even if stay does not occur) [FMLA: employee must stay overnight] “Incapacity” [Aligns with FMLA] • Means inability to work, attend school, or perform other regular daily activities due to serious health condition, its treatment, or recovery that it requires “Spouse” • Includes registered domestic partners and same-sex marriage partners [ FMLA: domestic partners not included. Whether the same-sex marriage will be recognized under FMLA depends on the state where “the place of celebration” took place, not where the employee currently resides.] 6
Changes to Employers’ Posting and Written Notice Obligations • Post notice explaining CFRA provisions and providing information concerning the procedures for filing complaints in conspicuous places [Aligns with FMLA] • Must be readily visible by employees and applicants [Aligns with FMLA] • Must be large enough to be easily read and must contain fully legible text [Aligns with FMLA] • Electronic posting is sufficient to meet posting requirement so long as it otherwise meets requirements [Aligns with FMLA] • If workforce has 10% or more employees who speak another language as their spoken language, employer must provide CFRA notice in that language [FMLA: must translate when different language is spoken by “significant portion” of workers not literate in English] • For language added to written posting, see §11095 7
Expansion of Key Employee Provision “Key Employee” • Employee who is paid on a salary basis and is amongst highest paid 10% of employees who are employed within 75 miles of employee’s worksite at time of leave request [Aligns with FMLA] Highest Paid 10% Calculation • Determined by comparing the year-to-date wages of employer’s employees within 75 miles of worksite where requesting employee is employed at the time of leave request, divided by number of weeks worked (including weeks in which paid leave was taken) [Aligns with FMLA] 8
Expansion of Key Employee Provision Notice to Key Employee of Denial of Reinstatement [Aligns with FMLA] • Notice must be given in writing at the time the employee gives notice of the need for CFRA leave (or when CFRA leave commences, if earlier) that he/she is a key employee and potential consequences with respect to reinstatement and maintenance of health benefits if employer should determine that reinstatement will result in substantial and grievous economic injury to its operations • Or as soon as practicable if there is a need to determine whether the employee is a key employee • Failure to provide notice will result in employer losing the right to deny reinstatement • After good-faith determination that substantial and grievous economic injury to its operations will result if it reinstates key employee, employer must notify employee in writing that it cannot deny CFRA leave, but that it intends to deny reinstatement on completion of leave • Employer should give such notice prior to employee starting leave • Employer must serve notice either in person or by certified mail • Notice must explain basis for employer’s conclusion, and, if leave has commenced, must provide employee reasonable time in which to return to work, taking into account the circumstances, such as duration of leave and urgency of need for employee to return 9
Expansion of Key Employee Provision Health Benefits to Key Employees [Aligns with FMLA] • Regardless of response to employer’s notification of intent to deny reinstatement, employee continues to be entitled to maintenance of health benefits coverage and employer may not recover its cost of health benefit premiums • Key employee’s rights under CFRA continue unless and until employee either gives notice that he/she no longer wishes to return to work, or employer actually denies reinstatement at the conclusion of the leave Reinstatement Rights of Key Employees [Aligns with FMLA] • After employer notifies an employee that substantial and grievous economic injury will result if employer reinstates employee, employee is still entitled to request reinstatement at end of leave period even if he/she did not return to work in response to employer’s notice • Employer must then again determine whether reinstatement will result in substantial and grievous economic injury, based on facts at that time • If employer determines that substantial and grievous economic injury will result, employer shall notify employee in writing (in person or by certified mail) of denial of reinstatement 10
Addition of Fraud Provision [Aligns with FMLA] • Employee who fraudulently obtains or uses CFRA leave is not protected by CFRA’s job reinstatement or maintenance of health benefits provisions • Employer has burden of proving that employee fraudulently obtained or used CFRA leave 11
Changes to Group Health Plans Payment [Aligns with FMLA] • Group health plan coverage must be maintained for employee on CFRA leave until: • Employee’s CFRA leave entitlement is exhausted; • Employer can show that employee would have been laid off and employment relationship terminated for lawful reasons during period of CFRA leave; or • Employee provides unequivocal notice of intent not to return to work • If employees are required to pay premiums for any part of group health coverage, employer must provide employee with advance written notice of terms and conditions under which payments must be made • If CFRA leave is paid, employee’s share of premiums must be paid by method normally used during any paid leave unless voluntary agreement between employer and employee dictates otherwise [FMLA: no voluntary agreement option] • If CFRA leave is unpaid, employer may require that payment be made to employer or to insurance carrier, but may not add additional charges for any administrative expenses • If employer terminates employee’s health benefits coverage because of employee’s non- payment of premiums and fails to restore the employee’s health insurance upon employee’s return, employer may be liable for benefits lost and other monetary losses 12
Addition of Interactive Process Requirement [Aligns with FMLA] • Requires employers and employees to engage in an interactive process if CFRA leave involves a disability, and the employee cannot return to work at conclusion of CFRA leave • This is consistent with existing employer obligations under the Fair Employment and Housing Act, but this is the first time the requirement has been stated in CFRA regulations 13
Recommend
More recommend
