Proposed Revisions to the California Family Rights Act Will Expand the Circumstances Under Which Employees Could Take Protected Leave

The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.

Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.

Proponents of the bill (which include American Federation of State, County and Municipal Employees and California School Employees Association) contend that the current CFRA is too narrow in its definition of family and therefore excludes many family members from the ability to provide care for their loved ones and fails to account for the diversity of California households and the importance of caregiving by extended family members. Supporters state this bill would make it possible for all California families to be protected with family and medical leave so that illness does not necessitate unemployment and financial insecurity.

Opponents assert the CFRA is already costly to employers and that expanding the types of individuals or circumstances under which an employee can take a leave of absence under CFRA would only further increase the cost of doing business for California employers. This, in turn, would discourage employers from locating to this state or from growing to more than 50 employees in order to avoid the requirements of the CFRA. Opponents further assert the bill will create further disconnect with the federal Family and Medical Leave Act (FMLA).

This last point bears emphasis as the differing standards under state and federal law will result in employees being entitled to up to double the amount of protected time off. For example, employees would be entitled to 12 workweeks of leave under the CFRA to care for a seriously ill grandparent or parent-in-law, and then later, in the same 12-month period, be entitled to FMLA leave of up to 12 workweeks for their own serious health condition, to care for a seriously ill parent, or for the birth or adoption of a child.

The bill is currently working its way through the Assembly, so stay tuned.

Categories: Labor/Employment

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