Fair Employment and Housing Council Amends California Family Rights Act Regulations

Employment Law  

August 25, 2015

The California Fair Employment and Housing Council’s (“FEHC”) amended regulations for the California Family Rights Act (“CFRA”) went into effect on July 1, 2015.  These amendments clarify previously vague rules and adopt regulations that incorporate recent changes to the federal Family and Medical Leave Act (“FMLA”) regulations and court decisions.  This is a welcome development for employers that have been struggling with the interplay between the newer FMLA rules and the older CFRA rules.  The following is a summary of certain key changes to the CFRA regulations:

  • The regulations now provide further instructions on how to determine if there are 50 or more employees within a 75-mile radius.  Specifically, for employees with no fixed worksite (e.g., employees who work from home), the worksite is the site: (i) to which they are assigned as their home base, (ii) from which their work is assigned, or (iii) to which they report.
  • The amended regulations amend the definition of “covered employer” to include successors-in-interest and joint employers.
  • The amended regulations clarify that pregnant employees are entitled to the continuation of health insurance benefits (at the same level as if they were actively working) for the entire duration of their Pregnancy Disability Leave (“PDL”) and any CFRA-bonding time (up to 12 weeks). Significantly, employees who retire while on CFRA leave, or during the first 30 days after returning to work, or who cannot return to work for medical reasons, are not required to repay the employer’s cost of maintaining healthcare coverage.
  • Under the CFRA, a serious health condition includes an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment.  Under the FMLA and prior CFRA regulations, inpatient care requires an overnight stay.  Under the amended regulations, inpatient care only requires an “expectation” by the healthcare facility that the employee will remain overnight.  Now, if the healthcare facility transfers or discharges the employee prior to an overnight stay, the employee will still be considered to have received “inpatient care.”
  • Under the new CFRA regulations, the employer must have a “good faith, objective reason” to doubt the validity of a medical certification.  Moreover, employers may also only contact an employee’s healthcare provider to authenticate or validate a medical certification.  The regulations also provide a sample certification form that can be given to healthcare providers, which can be found at the end of the new regulations.
  • The amended regulations require employers to post a notice explaining the CFRA’s provisions and the procedures for filing complaints with the DFEH.  The notice must now be posted where it can be seen by both employees and applicants.  The law clarifies that electronic posting is sufficient as long as it otherwise meets the notice requirements.  The notice must also be translated into any language that is spoken by at least 10 percent of the workforce.
  • The regulations reduce the time in which the employer must respond to a leave request.  Employers must now respond within five business days.
  • An employee who “fraudulently” obtains or uses CFRA leave is not protected by the law.  Notably, the burden is on the employer to prove “fraud.”  Also, absent “extenuating circumstances,” if an employee fails to return a medical certification within 15 days of the employer’s request, the employer may deny leave and hold the employee accountable under its attendance policy.

Practical Tips for Employers

Many of the changes to the CFRA regulations merely harmonize the CFRA and the FMLA.  However, employers still need to remember California’s unique rules.  Accordingly, employers should inform supervisors and managers about the changes to the law and provide training on how the CFRA, FMLA, and other leaves of absence work together.