Changes to California Family Rights Act regulations take effect July 1

by Marc A. Koonin, Sedgwick LLP

Updated regulations for the California Family Rights Act (CFRA) take effect July 1. The new regulations represent the first significant revisions to the CFRA in 20 years and include a number of changes, many of which are designed to bring the regulations into greater conformity with their federal Family and Medical Leave Act (FMLA) counterparts.

Although there was a rough parity between the implementing rules for the CFRA and the FMLA rules for many years, coordinating them became increasingly difficult with the adoption and implementation of new FMLA regulations effective January 16, 2009, March 8, 2013, and March 27, 2015, as well as the modification of the CFRA in 2011.

Responding to public demand to update the regulations, the Fair Employment and Housing Council issued its first “Notice of Proposed Rulemaking” on February 21, 2014, culminating with the filing of the new regulations with the secretary of state on March 4, 2015.

The new rules include significant changes. One change relates to a general attempt to reconcile the CFRA and the FMLA rules to the extent permissible. A significant aspect of the new CFRA rules is that they generally adopt the FMLA regulations that became effective March 8, 2013, except to the extent that those regulations are inconsistent with the CFRA and its revised regulations or other provisions of California law. That is important since it reflects an intent to interpret and apply the FMLA and the CFRA consistently whenever possible.

The new regulations also:

• Clarify employer coverage and eligibility issues;
• Expand the definition of “serious health condition”;
• Expand and clarify key-employee rules;
• Increase reinstatement rights;
• Provide that an employee who fraudulently obtains or uses CFRA leave isn’t protected by the Act’s job restoration or maintenance of health benefits provisions (the burden of proving such fraud is on the employer);
• Cover certification, recertification, return-to-work certification, and fitness-for-duty issues;
• Provide that the time an employer maintains and pays for group health coverage during pregnancy disability leave can’t be used to meet its obligation to pay for up to 12 weeks of group health coverage during CFRA leave;
• Cover an employer’s duty to engage in the interactive process and consider granting disability leave as a reasonable accommodation upon completion of CFRA leave;and
• Update the CFRA poster and translation.

For more information on the new CFRA regulations, see the April 13, 2015, issue of California Employment Law Letter.

Marc A. Koonin is an attorney at Sedgwick LLP in San Francisco. He can be reached at marc.koonin@sedgwicklaw.com.