On July 1, 2015, the California’s Fair Employment and Housing Council’s updates to the California Family Rights Act (CFRA) went into effect. The intent was to clarify the existing regulations and bring them more in line with the federal Family Medical Leave Act (FMLA). While both sets of laws generally provide up to 12 weeks of unpaid leave to eligible employees and have many similar provisions, historically, the two laws also have had significant divergences. The new CFRA regulations incorporated many elements of the 2013 FMLA regulations, but intentionally elected to retain important differences and even created new ones. California employers with 50 or more employees must comply with both sets of rules. As an added complication, in some places these new regulations caused some provisions of CFRA to be more out of sync with existing California Pregnancy Disability Leave (PDL) regulations, which themselves were just updated in 2013. Unlike CFRA, PDL law applies to employers with as few as 5 employees. Faced with the challenge of complying with all these bodies of law, California remains a challenging place to be an employer.
The following describes several of the major provisions where CFRA and FMLA are now aligned:
Below is a summary of some of the major differences that remain between CFRA and FMLA regulations:
FMLA allows the employer in certain circumstances to ask for a new medical certification every 6 months, such as when a condition’s duration is “lifetime” or “unknown.” Under the new CFRA regs, an employer remains unable to ask an employee for a new medical certification before the original or current one expires. It is important to note that while the federal Department of Labor’s (DOL) medical certification forms explicitly ask for symptoms and a diagnosis from the healthcare provider, requesting this information is a violation of California law. As such California employers are advised to not use the federal Medical Certification form.
The federal DOL makes available model notices which an employer may use for FMLA related leaves. While California employers are not prohibited from using these forms, they would need to modify the DOL notices in order to be compliant with CFRA regulations. Most importantly, CFRA requires employers to provide employees on CFRA leave with information regarding the maintenance of health insurance benefits for a maximum period that exceeds the limits described on the FMLA notices; the total time available for pregnancy disability combined with baby bonding leave is different under CFRA and FMLA, and the definition of several terms including “serious health condition” and “inpatient care” are different under CFRA and FMLA.
In California, employers must maintain health insurance benefits for up to four months of Pregnancy Disability Leave (PDL) plus 12 additional weeks for baby-bonding CFRA leave. FMLA only requires the employer to maintain these benefits for 12 weeks, regardless of the reason for the leave.
Second Medical Opinions
Under FMLA an employer only needs a “reason” to doubt the validity of the first medical opinion and may request a second medical opinion for the employee’s or family member’s serious health condition. To obtain a second opinion, the new CFRA regulations require the employer to have a “good faith, objective reason” to doubt the validity of the employee’s first medical opinion and are only allowed for the employee’s own serious health condition. Unfortunately, the new CFRA regs did not provide any guidance about what would constitute a good faith, objective reason.
Contacting the Healthcare Provider
While FMLA allows certain employees of the employer to contact the employee’s healthcare provider to authenticate or clarify a medical certification provided by the employee, CFRA prohibits an employer from contacting the employee’s healthcare provider for any reason other than to authenticate the documentation provided.
Use of Paid Leave
FMLA allows the employer to require the use of any paid time off as long as it is done consistently with the employer’s regular, established policies. Under CFRA, employees may elect, or the employer may require, the use of vacation or PTO; however, the employer may only require the use of paid sick time if the leave is for the employee’s own serious health condition. It is important to note the potential conflict with both California’s “kin care” and new paid sick leave laws which allow employers to charge an employee’s paid sick time bank when the leave is to care for a family member.
While the FMLA regulations and the old CFRA regulations both spelled out that an employer can only require an employee to use paid time off during periods of unpaid leave, some confusion existed as to what type and how much wage replacement an employee would need to be receiving to turn that portion of leave into paid leave. Clearly, an employee receiving disability or workers’ compensation wage replacement benefits precluded an employer from mandating the use of paid time off. The new CFRA regulations take that position one step further by stating that an employee receiving “any form of disability benefits” including Paid Family Leave (which is a benefit unrelated to the employee’s disability) is on a paid leave.
When determining an employee’s eligibility for FMLA leave, an overnight stay in the hospital is one way to establish that the employee has a qualifying “serious health condition.” The new CFRA regulations only require the “expectation” that the employee will have an “overnight stay” in a hospital, hospice, or residential facility to be considered inpatient care. This means that an employee could visit the ER with the expectation that he/she will be admitted to the hospital, but if instead is sent home, The ER visit would constitute inpatient care under CFRA.
It is important to note that new CFRA regulations did not adopt the 2013 FMLA updates regarding the definition of “continuing treatment” or the clarifications about full calendar days, in-person treatment, 1st visit with 7 days, 2nd visit within 30 days, or chronic conditions treatment twice a year. As such, it remains significantly easier to be deemed to have a serious health condition under CFRA as opposed to FMLA. This is yet another reason for California employers to avoid using the DOL model notices and medical certification forms.
Fitness for Duty Certifications
Under FMLA, the employer is able to request a Fitness for Duty Certification prior to the employee returning to work in which the healthcare provider states that the employee is able to resume the performance of all essential functions of the job. The employer is able to make this request provided that the employee is notified at the time he/she receives the required Rights and Responsibilities Notice, the company has a uniform policy of requiring a Fitness for Duty Certification for all similarly situated employees, and a job description that lists all the essential functions of the job was provided to the employee along with the Rights and Responsibilities notice. The new CFRA regulations, clearly state that an employer is only allowed to request a Fitness for Duty Certification from the employee after the employee has already returned to work and only if there is a business necessity for such a request. Otherwise, employers may only request a simple statement from the healthcare provided that the employee is released to return to work. .
The new CFRA regs include language that must be provided to employees regarding CFRA and Pregnancy Disability Leave. The information must be posted, provided to new hires, disseminated periodically to staff, and included in an employer’s next revision of their employee handbook if they have one. At the current time, the wording in the regs is different from the “Notice B” published by the Department of Fair Employment and Housing. The DFHE has posted on their website that they are aware of the discrepancy and will be working on new separate notices for CFRA and PDL. Until these new notices are available, employers will not be penalized for using either the combined CFRA/PDL language in the new regs or the existing “Notice B.”
To review a redline version of the new CFRA regulations, click here.
To access the DFEH’s website for more information click here: http://www.dfeh.ca.gov
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