Episode 87: Bill Adds Small Business to CFRA

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, General Counsel and Executive Vice President. And joining me today on the podcast is Ashley Hoffman, Cal Chambers, labor and Employment Policy Advocate. Welcome, Ashley.

Thanks, Erica. Happy to be here today.

Ashley. As many of our listeners know, the Legislature recently concluded a pretty crazy session and sent a number of bills that will impact California employers to the governor's desk for signature. And one of those bills is SB 1383, which Cal Chamber rightly coined as a quote, unquote, job killer. This measure will require all employers with five or more employees to provide up to 12 weeks of unpaid leave to their employees. This is a significant change in the law for our small businesses with less than 49 employees. Today, Ashley and I are going to discuss why all small businesses need to be aware of SB 1383. Ashley, in general, what does SB 1383 do?

So SB 1383 expands the California Family Rights act to employers with five or more employees. As you stated, Erica, this that act used to only apply to employers, 50 or more employees. And so this is a pretty big expansion to small businesses. It also expands a category of family members who an employee can take leave to care for. So it expands it, for example, now to grandparents, grandchildren, siblings, parents in law, and expands the definition of child as well. And also it allows parents 12 weeks to also bond with the birth of a newborn baby. Some small employers, you know, did have to previously offer, you know, that bonding leave under the California New Parent Leave act, which had applied to employers that were between 20 and 49 employees in size. So some small employers, you know, had to comply with that previously. But this now also expands that provision to apply to employers with just.

Okay, so that's this is a significantly new leave law for our smaller employers out there. So we know here that SB 1383 is going to apply to employers with five or more employees. Tell me about what employees are actually going to be able to take the 12 weeks. Is there any eligibility requirement under the law?

Yes. So essentially, under the California Family Rights act, it's very similar to the federal equivalent, the FMLA leave, in that you are able to take leave for your own serious health condition or to care for a family member. You also have eligibility requirements as far as whether you can take the leave depending on how long you've worked for the employee. So essentially you need to have worked for the employer for 12 months and you need to have completed 1,250 hours of service at the work site in order to be able to qualify you know, this is a little different from, say, a pregnancy disability leave in which, you know, you don't have any sort of hour or work time requirement to be eligible for the leave. And something to note as well is oftentimes when you're taking leave under sefra, if it's safe for your own health condition, it can run concurrently with any federal leave that you would be entitled to. But because what qualifies as taking care of a family member has now been expanded under sfr, you could conceivably have situations where someone is eligible just under sifra, and then maybe if their own health condition or something arises later, would then also be eligible for another 12 weeks of leave under the FMLA.

So just for those employers that may be unfamiliar with the fmla, the federal Medical Leave act that applies to employers with 50 or more employees. So that is for our, quote, unquote, larger employers, which up until this bill, the California Family Rights act, also only applied to 50 or more. But now it looks like California's Medical Leave act is now going to apply to five or more employees. But the federal law still is at 50 or more, right?

Correct. Yes. No changes have been made to the federal law.

And when does SB 1383 take effect?

So this will take effect January 1, 2021. And while some bills, especially those related to Covid related leave, will take effect immediately upon signature by the governor, this one will not take effect into January 1, 2021. So there is some time, you know, for, for small businesses to prepare as far as how to deal with these leave requests that may start coming in.

Okay, so this is a good timing for us to be letting our small employers know about this bill. Ashley, why should small employers pay attention to this bill?

So small employers want to pay attention to this bill because, you know, of course, it allows for quite a bit of leave. Right. At 12 weeks, you know, it's a considerable amount of time. One key piece as well is that the employee does not need to take 12 weeks altogether. You can do what's called intermittent leave, which means that you can use your 12 weeks and take it in chunks of time as small as just an hour or two. So can you so say someone's taking leave to take care of a family member that qualifies under sifra, and they don't need to be gone for, of course, 12 weeks at a time. They can maybe take a day here, a day there or whatnot. So for small businesses, you want to make sure that if someone is now on this leave, especially if it's intermittent leave, that you have adequate replacements in the workplace for that, there is also the ability for private right of action. And so you want to make sure that you are paying attention to these legal requirements to, of course, avoid lawsuits. One kind of reprieve is that there was some concern for small businesses about increased litigation. And so in one of the budget trailer bills, AB 1867, there is an establishment of a pilot program under the Department of Fair Employment and Housing. So, so if an employee files a complaint with the Department of Fair Employment and Housing, which is a prerequisite to filing a civil lawsuit, and the employer that the claim is against has 19 or fewer employees, once the employee receives a right to sue notice from the dfeh, the employer can request that the parties take part in a mediation program led by the DFEH to help facilitate settlement in advance of any kind of costly litigation.

Okay. So that mediation program is designed to potentially keep our smaller employers out of court if they make a mistake, which in my interpretation of this change in the law, for many of our small employers, mistakes could be very easy here if they're unaware of what the new leave requirements are for them.

Right, exactly. Especially if, as I mentioned, the employee has opted to take the intermittent leave, it can be difficult for a small business to keep track of those leaves. And so, you know that that provides some relief that, you know, if an employee felt like they were being denied this leave and, you know, chose to file a claim that the employer would have an opportunity to mediate through the DFEH in order to try and settle the claim in advance of any sort of civil lawsuit.

Ashley, another really important thing that I think our employers should be aware of regarding SB 1383 is that job protection component. And this speaks to your mention of the employer finding a replacement. That replacement actually is a temporary replacement. Correct. Because when that employee is taking that leave, they are protected from any type of adverse action. So being disciplined for taking a leave, even if it's on an intermittent basis or from being terminated because the employer can't hold the job open for them, they have to hire somebody else.

Right. That's a great point, is that this, you know, a big purpose of this law is to ensure that employees who are taking these leaves, as you stated, are not retaliated against for taking the leave and are guaranteed, you know, to have a job upon return from leave. I think something too, you know, kind of along those lines that's important to note is say an employee takes this leave for their own serious health condition. I think it's important for small employers to know that even after that leave continues, it's possible that the employee could request additional leave beyond the 12 weeks. You want to make sure that you're still adhering to the requirements, engaging in the interactive process and discussing, you know, accommodate reasonable accommodations to the employee, including possible additional leave. And so that's, you know, that's something that obviously small one, small, small businesses we're already aware of, but want to make sure that they're thinking of that as well, even beyond this 12 weeks.

Fantastic. Well, thank you for a very thorough overview of SB 1383. And for our small employers out there that have never heard about this before, rest assured, Cal Chamber will continue to provide information to you all the way up to when that law takes effect. So stay tuned. We will continue to inform you about different bills that are coming through and also offer ways within which you can comply and be prepared for January 1st. Ashley, thank you so much for joining us today on the Workplace.

Thanks, Erica. It was great being here and thank.

You again to all of our listeners out there. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com SAM.