California Leave Laws Are Changing . . . Again

The California legislature frequently tweaks the state’s various leave laws, including the California Family Rights Act (“CFRA”), and it did so again in 2022.  The newest amendment to CFRA is effective January 1, 2023.

CFRA gives eligible employees the right to take up to 12 weeks of leave in a 12-month period for a qualifying reason. See Cal. Gov’t Code § 12945.2; Cal. Code Regs. tit. 2, §§ 11087-11098. As a result of an earlier change that took effect January 1, 2021, many more employers are now subject to CFRA.  Under that earlier amendment, private employers that employ 5 or more employees (including both full-time and part-time employees) must comply with CFRA—prior to 2021 the threshold was 50 employees. CFRA also applies to state and local government employers of any size.

An employee is eligible for CFRA leave if the employee has more than 12 months of service with the employer, and at least 1,250 hours of service during the previous 12-month period.  Leave may be taken due to:

• The “serious health condition” of the employee that makes the employee unable to perform the functions of their job (except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, for which leave is available under Pregnancy Disability Leave (or “PDL”));
• The “serious health condition” of the spouse, registered domestic partner, child, parent, sibling, grandparent, grandchild, or parent-in-law of the employee;
• The birth of a child, and to care for the newborn;
• The placement of a child for adoption or foster care; or
• A “qualifying exigency” related to covered active duty or a call to covered active duty of the employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

As of January 1, 2023, the bases for leave will be changing; as of that date, as a result of the passage of A.B. 1041, eligible employees will also be able to take CFRA leave due to the serious health condition of a “designated person.”  “Designated person” is defined to mean “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”  The employer cannot require the employee to designate a person in advance—instead, the “designated person may be identified by the employee at the time the employee requests the leave.”  However, an “employer may limit an employee to one designated person per 12-month period.” 

A.B. 1041 also amended California’s paid sick leave law—the Healthy Workplaces Healthy Families Act of 2014.  See Cal. Lab. Code §§ 245-249.  Under the paid sick leave law, an eligible employee can take paid sick leave (a) for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member; or (b) if the employee is a victim of domestic violence, sexual assault, or stalking, for the purposes described in subdivision (c) of section 230 and subdivision (a) of section 230.1.  “Family member” includes the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, and—pursuant to A.B. 1041 and as of January 1, 2023—a “designated person.” For this purpose, “designated person” is defined as “a person identified by the employee at the time the employee requests paid sick days. An employer may limit an employee to one designated person per 12-month period for paid sick days.”  Cal. Lab. Code § 245.5(c)(8). 

The legislature also passed, and Governor Newsom also signed, A.B. 1949 (Ch. 767), establishing a right to up to 5 days of unpaid bereavement leave upon the death of a family member.  The new law (Cal. Gov’t Code § 12945.7) applies to employers with 5 or more employees, as well as state and local government employers.  To be eligible, the employee must have worked for the employer for 30 days. Certain employees who are covered by a collective bargaining agreement are not subject to this law.

“Family member” is defined to mean “a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Section 12945.2 [CFRA].”  The bill does not include a “designated person” within the definition of family member.

The law specifies that bereavement leave shall be taken pursuant to any existing bereavement leave policy of the employer.  The leave shall be completed within three months of the date of death of the family member. However, the days of bereavement leave need not be consecutive.

If requested by the employer, the employee, within 30 days of the first day of the leave, shall provide documentation of the death of the family member.  “Documentation” includes, but is not limited to, “a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.” 

The employer shall maintain the confidentiality of any employee requesting bereavement leave.  Any documentation provided to the employer shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.

Employers should update their workplace posters, forms, and handbook.