On September 17, 2020, Governor Gavin Newsom signed SB 1383 (Jackson), which greatly expands employee job protected leave. Under current law, employers with over 50 employees are subject to the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). CFRA and the FMLA can be taken in increments as small as one hour at a time, and provide employees with twelve weeks of unpaid, job protected leave taken:
- for the birth of a son or daughter, and to bond with the newborn child;
- for the placement with the employee of a child for adoption or foster care, and to bond with that child;
- to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
- for medical leave when the employee is unable to work because of a serious health condition; or
- for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
SB 1383 expands CFRA by applying the 12 weeks of leave to all employers with five or more employees. An employee is only required to provide an employer with “reasonable notice,” and an employer must track the time off as “CFRA leave” or it may not count against the 12 weeks.
SB 1383 also changes requirements for qualifying for CFRA leave by amending the definition of family member for whom the employee can take leave by including a child of a domestic partner, grandparent, grandchild, sibling, or domestic partner. Additionally, SB 1383 removes the requirement that a “child” be under the age of 18 or a dependent adult child. This means that the FMLA and CFRA’s qualifying requirements no longer conform with each other and an employee of an employer with 50 or more employees could take 3 months of leave under CFRA to care for a domestic partner, child of a domestic partner, grandparent, grandchild, or sibling, return to work, and then take another 3 months off under FMLA for the employee’s own medical condition or the medical condition of a spouse, child or parent or for the birth, adoption or foster care placement of a child.
The leave mandated under SB 1383 is enforced through a private right of action that includes compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney’s fees. Any employee who believes an employer did not properly administer the leave, interfered with the leave, or denied the leave, can commence litigation.
The requirements of SB 1383 will go into effect on January 1, 2021.