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New Leaves of Absence Laws Take Effect January 1, 2023

California has expanded state laws governing employee leaves of absence with the California Family Rights Act (CFRA), signed September 30. The new rules take effect January 1, 2023, opening the doors a little wider for employees who apply for unpaid leave or paid sick leave to care for others.

Employee leave to care for ill family members has been protected under the Federal Family and Medical Leave Act since 1993, which currently allows 12 weeks of unpaid leave per year to care for a sick family member or for a newborn. Now CFRA expands who an employee may take leave to care for — the “designated person” — and adds bereavement leave as a protected employee right in California.

What does this mean for employers?

    • The new rules apply to private employers with five or more employees and all public employers.
    • ”Designated person” is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. This can include:
    • An employee only has to identify the designated person when requesting the leave.
    • Employers may limit an employee to one designated person per 12-month period.

Employers with five or more employees and all public employers are required to permit five days bereavement leave for the death of a family member: spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law:

– Bereavement leave maybe unpaid leave
– Employees may use existing vacation, sick or paid-time-off leave.
– Employers may require documentation to support the leave.
– The leave must be completed within three months of the family member’s death.

What is a “designated person”?

Under the CFRA, the definition of a “designated person” is not cut-and-dried because a relationship that is “equivalent of a family relationship” is open to subjective interpretation. This can be confusing for employers faced with granting leaves of absence under CFRA, who may wonder:

    • What makes a relationship equivalent to a family relationship — that is, what actually constitutes a family relationship?
    • What questions can an employer legally ask an employee about their relationship with the designated person?

Neither of these questions are addressed by the new legislation. Is a roommate equivalent to a family relationship? A new romantic partner? A lifelong friend and neighbor? Before changes to CFRA, a family member included a child, parent, spouse, domestic partner, grandchild, grandparent and sibling, which already expanded the definition under the federal Family and Medical Leave Act (FMLA).

Because the new “designated person” language used in CFRA can be subjective, employers should consult legal counsel on new leave requests that rely on the 2023 CFRA laws to find out if the request fits within the scope of California law.

More concerning is that an employee could request and be granted 12 weeks leave per year under CFRA for a designated person, such as a parent-in-law, who is not covered by the FMLA. The employee could then in that same 12-month period request FMLA leave for a spouse, parent or child.

There is also complications between CFRA and California’s Paid Family Leave (PFL) program, which allows wage replacement from the state for eligible employees caring for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a serious health condition. The PFL program provides up to eight weeks of wage replacement benefits in a 12-month period. How does CFRA and PFL work together? The rules in the two laws do not fully connect, leaving employers open to confusion and complications.

The best path for employers navigating the new leaves of absence requirements is expert legal counsel and defense to ensure that they are compliant with the legal requirements, but their employees don’t exploit these expanded leave benefits to their employer’s detriment.

LawPLA is dedicated to defending the rights of employers and guiding them in maintaining compliance with California’s fluid employment and labor laws. Contact us today to schedule a consultation. We are here for you!

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