California Risks Reputation as Leading Leave Haven

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

October 10, 2016


full_mod_vetoCalifornia is often commended – or condemned? – as the nation’s leader in rights for the state’s workers. Indeed, in late September California Governor Jerry Brown signed a bill requiring employers to give notice to California employees of their rights if they are a victim of domestic violence, sexual assault, or stalking.

However, at the same time he vetoed two bills that would have expanded the rights of employees under the California Family Rights Act (CFRA).  What, you say?  In California?  Yes, apparently there are limits.

Enacted:  Mandatory Notice to Employees of Leave Rights. Effective January 1, 2017, employers with 25 or more employees must inform each employee in writing of his or her rights established under the two Labor Code sections cited below. The information must be provided to new employees upon hire and to other employees upon request. However, the law also directs the Labor Commissioner to develop by July 1, 2017, a sample form that employers can use to comply with the new notice requirement.  Employers are not required to comply until the Labor Commissioner posts the form on the Commissioner’s website.

The new law amends two current laws (CA Labor Code §§ 230 and 230.1), which allow victim employees to take time off from work for the following purposes:

  • To seek medical attention for injuries caused by domestic violence or sexual assault.
  • To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or sexual assault.
  • To obtain psychological counseling related to an experience of domestic violence or sexual assault.
  • To participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation.
  • To obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.

The current laws also make it unlawful for employers to discharge, threaten with discharge, demote, suspend, or in any manner discriminate or retaliate against victims of such crimes in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes.  Leave for the first four reasons listed above is limited to the 12 weeks provided by the federal Family and Medical Leave Act (FMLA) even if the leave reason is not covered by FMLA.  For example, if an employee has already taken 9 weeks of FMLA time, he or she will be limited to 3 more weeks of leave for the first four reasons above in the specific leave year.  Leave for the reasons described in the last bulleted paragraph (obtaining protective court orders) is not similarly limited.

Also in late September, California Governor Brown vetoed 2 bills that would have expanded employees’ rights under the California Family Rights Act (CFRA).

Vetoed:  Parental leave for employees of smaller employees.  Governor Brown vetoed SB 654, which would have provided up to 6 weeks of job-protected unpaid parental leave to eligible workers employed by companies with 25-49 employees.  Currently the California Family Rights Act (CFRA) requires companies with 50 or more employees to provide up to 12 weeks of job-protected unpaid leave to eligible employees.  The proposed law would also have required the continuation of health care benefits during the leave.

Vetoed:  Expanded CFRA definition of “family member.”  Another bill vetoed by Governor Brown (SB 406) would have amended CFRA by expanding the definition of “family member” for which California employees can take leave when the family member has a serious health condition.  The bill would have added leave rights to care for the employee’s grandparent, grandchild, sibling, domestic partner, or parent-in-law.  The bill also would have removed the age restriction on the definition of “child” so that employees could take CFRA time to care for an adult child with a serious health condition even if the adult child does not have a disability.

None of these relationships is covered under the FMLA.  As a result, an eligible employee would be able to take up to 24 weeks of leave per year in some circumstances.  For example, when leave is first taken to care for a family member not covered under FMLA such as a sibling or grandparent, the leave would not count against the employee’s 12 weeks of FMLA entitlement, which would still be available for use if the employee meets the eligibility requirements at the beginning of the requested leave.

A few states with family and medical leave laws allow this anomaly to occur due to their broader definition of a “family member” for whom an employee can take leave:

  • California: by regulation, includes domestic partner in the definition of spouse
  • Colorado: provides for FMLA-like leave rights to care for a civil union partner with a serious health condition
  • District of Columbia: family member includes a person to whom the employee is related by blood, legal custody, or marriage; and a person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship (thus, covering many more family and personal relationships than the FMLA)
  • Hawaii: civil union partners, reciprocal beneficiaries, parents-in-law, grandparents (including grandparents-in-laws)
  • Maine: siblings (when mutually committed to supporting one another), domestic partners; no age limit on “child”
  • New Jersey: civil union or domestic partners
  • Oregon: civil union or domestic partners, parents-in-law, grandparents, grandchildren
  • Rhode Island: civil union partners, parents-in-law; no age limit on “child”
  • Vermont: civil union partners
  • Washington:   civil union partners, parents-in-law, grandparents
  • Wisconsin: domestic partners, parents-in-law (including the parent of a domestic partner)

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].