Are you or will you be a new parent? Do you work for an employer with 20-49 employees? Start the countdown. In less than 90 days California’s brand new, and much more expansive protected parental leave of absence law will come into effect on January 1, 2018. No surprise, this law protects and expands the rights of employees, not employers; this is California, after all.
What does the new law do and how is it different than the old law?
The new law makes an addition to the California Family Rights Act (“CFRA” and pronounced “cee frah”) which allows certain employees to take a legally protected, unpaid 12-week leave of absence from work (called “protected leave”) to bond with a new baby or adopted child. The 12-weeks of leave may be taken as one uninterrupted block of time, or may be taken in smaller bites of time called “intermittent leave”. The law applies to both moms and dads.
Formerly, CFRA applied to employees who work for employers who have 50 or more employees (this mirrors the federal government's version of a similar law called the Family Medical Leave Act (“FMLA”). Read more about the old law here. Now, CFRA has expanded by requiring employers with just 20-49 employees to provide the same protected leave of absence to new parents. The same law will now apply to smaller employers and cover three-million additional workers in California.
What does the employee have to do?
There are essentially three requirements for employees to receive a protected parental leave of absence under CFRA.
First, the employee must have worked for the same employer for at least one year, and worked at least 1,250 hours in the past twelve months. Brand new employees are not covered under the new law, however, employees at or near the one-year mark may sue their employer for anticipatorily interfering with their right to protected leave in the right circumstances.
Second, the protected leave of absence must be for the purpose of bonding within a new child within one year of the child’s birth, adoption, or foster care placement. The new expanded leave law does not protect employees who need time off work to care for their own illness or the illness of a family member; only employers of 50 or more employees must provide that protection to employees.
Third, employees must request the parental leave from their employers. Employees should never rely on the employer to offer the leave.
What does the employer have to do?
First and foremost, employers are required to reinstate their employees to the same job or a comparable job when they return from the parental leave. Remember, the power behind the new law, and all of CFRA/ FMLA, is the right to return the same job when the leave of absence is over.
Employers cannot terminate the employee’s medical insurance during the 12 week protected leave of absence. However, if an employee refuses to return to work after the leave is over the employer can recover the amount of the insurance premiums from the employee.
Importantly, the leave of absence is unpaid, as are all other CFRA-FMLA absences. However, employees must be allowed to apply their accrued PTO or sick time to the leave of absence.
What should an employee do and what can the and employee do or sue for?
In this writer’s experience, large employers already frequently underestimate their rigorous obligations under the CFRA and FMLA. Both laws are complicated and are very demanding on employers. Moreover, the expanded new law takes effect so quickly and covers so many additional smaller employers that it will catch many employers flat-footed. This will result in a tremendous amount of new litigation in California for violation of the parental leave law.
Notably, employers do not need to intentionally deprive an employee of their right to protected leave to be liable under the law. A simple bureaucratic or administrative mistake or ignorance of the law can expose an employer to very large legal claims.
Employers who fail to reinstate employees after the parental leave, or who interfere with the employee’s right to leave, or who take any adverse or retaliatory action against employees for exercising this new right can get sued by the employee. CFRA retaliation or interference claims include damages for lost income, punitive damages, as well as the plaintiff-employee’s attorney fees.
Employees who sense that their employer is interfering with their right to protected parental leave, or who have been refused reinstatement, should contact a plaintiff’s employment lawyer as soon as possible.
Is your employer of 20 or more employees allowing you to take a twelve-week leave of absence to care for a new child? If “no”, contact the Law Office of Brian Mathias.