Watch out! Just two more weeks and the new California Family Rights Act (CFRA) Regulations [pdf] go into effect. Here are just a few highlights to alert you to areas that will affect existing policies and practices.
If you have any joint employment relationships, know that joint employees now count for determining if you employ 50 or more persons within a 75-mile radius and are therefore a covered employer under CFRA. Also, if you have an employee who works remotely, e.g. from home, the headquarters to which the employee reports (even if it is out of state) is the worksite for the same test. For determining if an employee has worked for 12 months prior to requesting leave, you now count any time the employee is out on paid leave, that is, the employee may go out on vacation or sick leave and become eligible for CFRA while on paid leave.
Employers may only contact a health care provider to authenticate a medical certification and for no other reason. Recertification is out unless the original period has expired and additional leave is requested. The standard for requesting a second opinion is a bit higher. No more fitness for duty tests unless it’s for a business reason, and not solely as a condition for returning from leave. There are also changes to the certification form sent to health care providers, including incorporating at the top a notice about the California Genetic Information Nondiscrimination Act of 2011 (CalGINA).
There are new posting and notice requirements, including that (1) CFRA notices must be posted where employees and applicants may see them, and (2) employers must notify employees taking leave in writing in advance of how insurance premiums will be paid. Also, employers now have 5 business days, as opposed to 10 calendar days, to respond to CFRA requests.
Coordination with Disability and Paid Family Leave:
The new regulations change when an employer may require the use of accrued paid time off. When an employee is receiving partial wage replacement under short or long term disability or Paid Family Leave, the leave is considered paid. Thus, even though the leave may run concurrently with a CFRA leave, employers may no longer require an employee to use other paid leave (e.g. sick leave, PTO, vacation pay). However, in such instances, the employee and employer may still agree to supplement with other paid leave (e.g. sick leave, PTO, vacation pay).