This document summarizes changes to the California Family Rights Act (CFRA) that take effect on July 1, 2015. Key changes include expanding the definition of covered employers and eligible employees, increasing employer communication obligations, adding penalty provisions for non-compliant employees, and aligning many CFRA rules with recent changes to the federal Family and Medical Leave Act (FMLA). The presentation was given by Julie Capell and Annette Salazar-Shreibati to provide an overview of the significant revisions to CFRA regulations.

1. Briefing Regarding Revisions to the
California Family Rights Act
Presented by: Julie Capell
Annette Salazar-Shreibati
June 17, 2015

2. Today’s eLunch Presenters
Julie Capell
Partner
Los Angeles
jcapell@winston.com
Annette Salazar-Shreibati
Associate
Los Angeles
ashreibati@winston.com

3. Overview of Today’s Topics
3
• An examination of the California Family Rights Act (“CFRA”) changes
effective July 1, 2015:
• Incorporate March 6, 2013 FMLA regulations to the extent they align with the
scope of Government Code section 12945.2
• Greatly expand which employers and employees are covered under CFRA
• Increase employer’s obligations vis-à-vis communications with employees
regarding their medical leave
• Add CFRA penalty provisions for employees who do not comply with CFRA
regulations

4. Changes to CFRA Definitions
“Covered employer [Aligns with FMLA]
• Adds successors in interest of covered employers who directly employ 50 or more
persons within 75 miles of worksite
• Number of employees includes employees on paid or unpaid leave, disciplinary
suspension, or other work absence so long as employer reasonably expects
employee will later return to active employment
“Joint employer” [Aligns with FMLA]
• Where two or more businesses exercise some control over work or working
conditions of employee, businesses may be joint employers under CFRA
“Eligible employee” [Aligns with FMLA]
• At least 12 months (52 weeks) and 1,250 hours during 12-month period before leave
• Employment periods prior to break in service of 7 years or more need not be
counted in determining 12-month requirement unless caused by military service or
written agreement
• Employees who have not met 12-month requirement at start of leave may become
eligible during leave
4

5. Changes to CFRA Definitions
“Worksite” [Aligns with FMLA]
• Can refer to single location or group of contiguous locations
• For employees with no fixed worksite, worksite is considered site to which
they are assigned as home base, from which their work is assigned, or to
which they report
• When employee is jointly employed, employee’s worksite is primary
employer’s office from which employer is assigned or reports, unless
employee physically worked for at least one year at facility of secondary
employer, in which case employee’s worksite is that of secondary employer
“Key employee” [Aligns with FMLA]
• Paid on salary basis and among highest paid 10% of employees within 75
miles of worksite
“Reason of the birth of a child” [Aligns with FMLA]
• Includes, but is not limited to, bonding with child after birth
5

6. Changes to CFRA Definitions
“Serious health condition” [Aligns with FMLA]
• Includes treatment for substance abuse
“Inpatient care”
• Includes not only overnight stays at hospital, but also anticipated overnight
stays (even if stay does not occur) [FMLA: employee must stay overnight]
“Incapacity” [Aligns with FMLA]
• Means inability to work, attend school, or perform other regular daily
activities due to serious health condition, its treatment, or recovery that it
requires
“Spouse”
• Includes registered domestic partners and same-sex marriage partners
[FMLA: domestic partners not included. Whether the same-sex marriage
will be recognized under FMLA depends on the state where “the place of
celebration” took place, not where the employee currently resides.]
6

7. Changes to Employers’ Posting and Written Notice
Obligations
• Post notice explaining CFRA provisions and providing information concerning
the procedures for filing complaints in conspicuous places [Aligns with FMLA]
• Must be readily visible by employees and applicants [Aligns with FMLA]
• Must be large enough to be easily read and must contain fully legible text
[Aligns with FMLA]
• Electronic posting is sufficient to meet posting requirement so long as it
otherwise meets requirements [Aligns with FMLA]
• If workforce has 10% or more employees who speak another language as their
spoken language, employer must provide CFRA notice in that language
[FMLA: must translate when different language is spoken by “significant
portion” of workers not literate in English]
• For language added to written posting, see §11095
7

8. Expansion of Key Employee Provision
“Key Employee”
• Employee who is paid on a salary basis and is amongst highest paid 10% of
employees who are employed within 75 miles of employee’s worksite at time
of leave request [Aligns with FMLA]
Highest Paid 10% Calculation
• Determined by comparing the year-to-date wages of employer’s employees
within 75 miles of worksite where requesting employee is employed at the
time of leave request, divided by number of weeks worked (including weeks
in which paid leave was taken) [Aligns with FMLA]
8

9. Expansion of Key Employee Provision
Notice to Key Employee of Denial of Reinstatement [Aligns with FMLA]
• Notice must be given in writing at the time the employee gives notice of the need for CFRA leave
(or when CFRA leave commences, if earlier) that he/she is a key employee and potential
consequences with respect to reinstatement and maintenance of health benefits if employer
should determine that reinstatement will result in substantial and grievous economic injury to its
operations
• Or as soon as practicable if there is a need to determine whether the employee is a key
employee
• Failure to provide notice will result in employer losing the right to deny reinstatement
• After good-faith determination that substantial and grievous economic injury to its operations will
result if it reinstates key employee, employer must notify employee in writing that it cannot deny
CFRA leave, but that it intends to deny reinstatement on completion of leave
• Employer should give such notice prior to employee starting leave
• Employer must serve notice either in person or by certified mail
• Notice must explain basis for employer’s conclusion, and, if leave has commenced, must
provide employee reasonable time in which to return to work, taking into account the
circumstances, such as duration of leave and urgency of need for employee to return
9

10. Expansion of Key Employee Provision
Health Benefits to Key Employees [Aligns with FMLA]
• Regardless of response to employer’s notification of intent to deny reinstatement, employee
continues to be entitled to maintenance of health benefits coverage and employer may not recover
its cost of health benefit premiums
• Key employee’s rights under CFRA continue unless and until employee either gives notice that
he/she no longer wishes to return to work, or employer actually denies reinstatement at the
conclusion of the leave
Reinstatement Rights of Key Employees [Aligns with FMLA]
• After employer notifies an employee that substantial and grievous economic injury will result if
employer reinstates employee, employee is still entitled to request reinstatement at end of leave
period even if he/she did not return to work in response to employer’s notice
• Employer must then again determine whether reinstatement will result in substantial and
grievous economic injury, based on facts at that time
• If employer determines that substantial and grievous economic injury will result, employer shall
notify employee in writing (in person or by certified mail) of denial of reinstatement
10

11. Addition of Fraud Provision [Aligns with FMLA]
• Employee who fraudulently obtains or uses CFRA leave is not protected by
CFRA’s job reinstatement or maintenance of health benefits provisions
• Employer has burden of proving that employee fraudulently obtained or used
CFRA leave
11

12. Changes to Group Health Plans Payment [Aligns with
FMLA]
• Group health plan coverage must be maintained for employee on CFRA leave until:
• Employee’s CFRA leave entitlement is exhausted;
• Employer can show that employee would have been laid off and employment relationship
terminated for lawful reasons during period of CFRA leave; or
• Employee provides unequivocal notice of intent not to return to work
• If employees are required to pay premiums for any part of group health coverage,
employer must provide employee with advance written notice of terms and conditions
under which payments must be made
• If CFRA leave is paid, employee’s share of premiums must be paid by method normally used
during any paid leave unless voluntary agreement between employer and employee dictates
otherwise [FMLA: no voluntary agreement option]
• If CFRA leave is unpaid, employer may require that payment be made to employer or to insurance
carrier, but may not add additional charges for any administrative expenses
• If employer terminates employee’s health benefits coverage because of employee’s non-
payment of premiums and fails to restore the employee’s health insurance upon
employee’s return, employer may be liable for benefits lost and other monetary losses
12

13. Addition of Interactive Process Requirement
[Aligns with FMLA]
• Requires employers and employees to engage in an interactive process if CFRA leave
involves a disability, and the employee cannot return to work at conclusion of CFRA
leave
• This is consistent with existing employer obligations under the Fair Employment and
Housing Act, but this is the first time the requirement has been stated in CFRA
regulations
13

14. Calculation Methods for CFRA Leave [Aligns with FMLA]
12-Month Period
• Employer may choose any of the methods for determining the 12-month
period in which 12 weeks of CFRA leave entitlement occurs:
• Calendar year
• Any fixed 12-month “leave year”
• 12-month period measured forward from date any employee’s first CFRA
leave begins
• “Rolling” 12-month period measured backward from date an employee
uses any CFRA leave
14

15. Calculation Methods for CFRA Leave [Aligns with FMLA]
• Method must be applied consistently and uniformly
• Must inform employees of chosen method
• If employer fails to select one of the above methods for measuring 12-month period, the
method that provides the most beneficial outcome for employee will be used
• 60 days’ notice required for change to method
• Transition must take place in such a way that employees retain full benefit of 12 weeks
of leave under whichever method affords greatest benefit to the employee
• New method cannot be implemented in order to avoid CFRA’s leave requirements
• If employee’s schedule varies from week to week to such extent that employer cannot
determine with any certainty how many hours employee would otherwise have worked
(but for the taking of CFRA leave), a weekly average of hours scheduled over 12 months
prior to beginning of leave period (including any hours for which employee took leave of
any type) shall be used for calculating employee’s leave entitlement
15

16. Changes to Intermittent or Reduced Leave [Aligns with
FMLA]
• If intermittent or reduced leave schedule is for a planned medical treatment, then employee must
make reasonable effort to schedule treatment so as not to unduly disrupt employer’s operations
• May be taken for absences where employee or family member is incapacitated or unable to perform
essential functions of position because of chronic serious health condition, even if he/she does not
receive treatment by a health care provider
• Employer must limit leave increments to the shortest period of time that employer’s payroll system
uses to account for absences or use of leave, provided it is not less greater than one hour
• Where it is physically impossible for employee using intermittent leave or working reduced leave
schedule to commence or end work mid-way through shift, entire period that employee is forced to be
absent is designated as CFRA leave and counts against employee’s CFRA entitlement
• Employee shall be permitted to return to work if he/she is able to perform other aspects of the work
that are not physically impossible, such as administrative duties, and thereby shorten time
designated as CFRA leave
• Employer may not transfer employee to alternative position to discourage employee from taking leave
or to otherwise work hardship on employee
17

17. Changes to Intermittent or Reduced Leave
Reduction in Pay for Intermittent Leave
• Employer may reduce exempt employees’ pay for CFRA intermittent leave or reduced work
schedule, provided reduction is not inconsistent with any applicable collective bargaining
agreement or employer leave policy, the FEHA, or any other applicable state or federal law [CFRA
only]
Expansion of Intermittent Bonding Rules
• If employee needs intermittent leave or leave on reduced work schedule that is foreseeable based
on planned medical treatment for employee or a family member, or if employer agrees to permit
intermittent or reduced schedule leave for the birth or placement of a child, employer may require
employee to temporarily transfer to alternate position, which need not have equivalent duties
[Aligns with FMLA]
18

18. Additional Changes to Computation of Time Periods
[Aligns with FMLA]
Holidays
• If employee uses CFRA leave in increments of less than one week, fact that a holiday may occur
within a week in which employee partially takes leave does not count against employee’s CFRA
entitlement unless employee was otherwise scheduled and expected to work during the holiday
Overtime
• If employee normally would be required to work overtime, but is unable to do so because of a
CFRA-qualifying reason that limits employee’s ability to work overtime, hours that employee would
have been required to work may be counted against the employee’s CFRA entitlement
Permanent or Long-Term Schedule Change
• If employer has made permanent or long-term change to schedule (for reasons other than CFRA,
and prior to employee’s notice of need for CFRA leave), hours worked under new schedule are to
be used for making calculation
19

19. Changes to Employee Requests for CFRA Leave [Aligns
with FMLA]
Verbal Notice Required Absent Waiver
• Unless employer waives employees’ notice obligations, employee shall provide at least verbal
notice sufficient to make employer aware that employee needs CFRA leave, and anticipated timing
and duration of the leave
Notice Must Provide CFRA-Qualifying Reason
• The mention of “vacation,” other paid time off, or resignation does not render notice insufficient,
provided underlying reason for request is CFRA-qualifying, and employee communicates that
reason to employer
Further Inquiry If Employee Notice is Vague
• Employer should inquire further of employee if necessary to determine whether employee is
requesting CFRA leave and to obtain necessary information concerning the leave (i.e.,
commencement date, expected duration, and other permissible information)
• Employee has obligation to respond to employer’s questions designed to determine whether an
absence is CFRA-qualifying
• Failure to respond to permissible employer inquiries regarding leave request may result in
denial of CFRA protection if employer is unable to determine whether leave is CFRA-qualifying
20

20. Additional Changes to Employee Requests for CFRA
Leave [Aligns with FMLA]
Retroactive Designation
• Employers may not retroactively designate leave as CFRA leave after employee has returned to
work, except with appropriate notice to employee and where employer’s failure to timely designate
does not cause harm or injury to employee
Denial of CFRA Leave If Notice Is Not Provided as Soon as Practicable
• Employer shall not deny CFRA leave, the need for which is an emergency or is otherwise
unforeseeable, on basis that employee did not provide advance notice of need for leave, so long
as employee provided notice to employer as soon as practicable
Time to Respond to CFRA Request Shortened
• Employer shall respond to leave request as soon as practicable and in any event no later than 5
business days after receiving employee’s request [Aligns with FMLA—changed from 10 calendar
days]
21

21. Changes to Rules Regarding Certification
Contact with Healthcare Provider
• Employer may not contact health care provider for any reason other than to authenticate medical
certification [FMLA: employer may contact health care provider to authenticate or clarify medical
certification]
Penalties for Employee Noncompliance with Certification [Aligns with FMLA]
• Employer may require that employee provide any certification within no less than 15 calendar days
of employer’s request for such certification, unless it is not practicable for employee to do so
• Absent extenuating circumstances (e.g., unavailability of health care provider), if employee fails to
timely return certification, employer may deny CFRA protections until sufficient certification is
provided
• At the time employer requests certification, employer also must advise employee of anticipated
consequences of his/her failure to provide adequate certification
Certification Form Amended
• Amends sample Certification of Health Care Provider form [FMLA certification form may be used,
but must not contain section regarding symptoms and diagnosis. To avoid confusion, use CFRA
certification form]
22

22. Additional Changes to Rules Regarding Certification
Second Opinion
• In order to request a second opinion as to employee’s serious health condition certification,
employer must have a “good faith objective reason” to doubt the validity of certification [FMLA:
employer only needs a “reason” to doubt validity of first medical opinion]
• Employer may only obtain second opinion concerning employee’s health condition [FMLA:
employer may obtain second opinion concerning either employee or family member]
• Employer may not ask employee to provide additional information (symptoms, diagnosis, etc.)
in medical certification [FMLA: certification may include information on symptoms and diagnosis
if necessary to support need for leave]
Requests for Recertification
• Upon expiration of time period health care provider originally estimated employee needed for his
own serious health condition, employer may require employee to obtain recertification only if
additional leave is requested [FMLA: employer can request new certification at least every six
months]
23

23. Changes to Employer’s Ability to Seek Fitness-For-Duty
and Return-to-Work Information [Aligns with FMLA]
Fitness-For-Duty
• Employer may not require employee to undergo fitness-for-duty examination as condition of
employee’s return; after employee returns from CFRA leave, any fitness-for-duty examination must
be job-related and consistent with business necessity
Return-to-Work
• Employer is not entitled to release to return-to-work for each absence taken on intermittent or
reduced leave schedule
• Employer is entitled to release to return-to-work for such absences up to once every 30 days if
reasonable safety concerns exist regarding employee’s ability to perform his/her duties
24

24. Changes to Provisions Regarding Reinstatement Rights
Same or Comparable Position [Aligns with FMLA]
• Employee is entitled to reinstatement even if employee has been replaced or his/her position has
been restructured to accommodate employee’s absence
• Employee is entitled to same position or to comparable position that is equivalent to employee’s
former position in terms of pay, benefits, shift, schedule, geographic location, and working
conditions, including privileges, perquisites, and status
• Position must involve the same or substantially similar duties and responsibilities, which must
entail substantially equivalent skill, effort, responsibility, and authority
• Equivalent benefits include benefits resumed in same manner and at same levels as provided
when leave began, subject to any changes in benefit levels that took place during period of CFRA
leave affecting entire workforce, unless otherwise elected by employee
• CFRA leave shall not constitute break in service or cause employee to lose seniority, even if other
paid or unpaid leave constitutes break in service for purposes of establishing longevity or seniority,
or for layoff, recall, promotion, job assignment, or seniority-related benefits
25

25. Changes to Provisions Regarding Reinstatement Rights
[Aligns with FMLA]
Qualifications
• If employee is no longer qualified for position because of employee’s inability to attend necessary
course, renew license, fly minimum number of hours, or other non-qualifying reason, as result of
leave, employee shall be given reasonable opportunity to fulfill those conditions upon returning to
work
Accommodation
• CFRA does not prohibit employer from accommodating employee’s request to be restored to
different shift, schedule, position, or geographic location that better suits employee’s personal
needs on return from leave, from offering promotion to better position, or complying with
employer’s obligation to provide reasonable accommodation under FEHA
Employer Defense
• New defense to failure to reinstate to same position if hours would have been reduced regardless
of leave
26

26. Paid Leave Substitution
Vacation Time [Aligns with FMLA]
• Employee may elect to use, or employer may require employee to use, any accrued vacation time
or other paid accrued time off (including undifferentiated PTO), during otherwise unpaid portion of
CFRA leave
Sick Leave
• Employee may elect to use, or employer may require employee to use, any accrued sick leave
during otherwise unpaid portion of CFRA leave if CFRA leave is for employee’s own serious health
condition or any other reason if mutually agreed between employer and employee [FMLA:
employer has right to require substitution of sick leave even when leave is not for employee’s own
health condition]
Partial Wage Replacement [Aligns with FMLA]
• If employee is receiving partial wage replacement benefit during CFRA leave, employer and
employee may agree to have employer-provided paid leave, such as vacation, paid time off, or
sick time supplement the partial wage replacement benefit, unless otherwise prohibited by law
Paid Family Leave [Aligns with FMLA]
• Employee receiving Paid Family Leave to care for serious health condition of family member or to
bond with new child is not on “unpaid leave,” and, therefore, employer may not require employee
to use paid time off, sick leave, or accrued vacation
27

27. Paid Leave Substitution
Paid Leave Where No CFRA-Qualifying Reason [Aligns with FMLA]
• If employee uses paid leave under circumstances that do not qualify as CFRA leave, leave will not
count against employee’s CFRA leave entitlement
Short- or Long-Term Disability Leave Plan [Aligns with FMLA]
• For leave for employee’s own serious health condition, employee may also substitute leave taken
pursuant to a short- or long-term disability leave plan, as determined by terms and conditions of
employer’s leave policy, during otherwise unpaid portion of CFRA leave
• This paid disability leave runs concurrently with CFRA leave, and may continue longer than
CFRA leave if permitted by disability leave plan
• Employee receiving any form of disability payments is not on “unpaid leave” and, therefore,
employer may not require employee to use PTO, sick leave, or accrued vacation
28

28. Changes to Health Coverage Under CFRA
Group Health Coverage
• Time that employer maintains and pays for group health coverage during pregnancy disability
leave (up to 4 months) shall not be used to meet employer’s obligation to pay for 12 weeks of
group health coverage during leave taken under CFRA, even where employer designates
pregnancy disability leave as family and medical leave under FMLA [FMLA: leave covers both
pregnancy disability and baby bonding, so employer need only maintain health benefit for 12
weeks]
• Entitlement to employer-paid group health coverage during pregnancy disability leave and during
CFRA are two separate and distinct entitlements
29

29. Changes to CFRA Retaliation Provisions and Addition
of CFRA Interference Prohibition
30
Retaliation and Interference [Aligns with FMLA]
• Any violation of CFRA or its implementing regulations constitutes interfering with, restraining, or
denying the exercise of rights provided by CFRA
• “Interfering with” exercise of employee’s rights includes (1) refusing to authorize CFRA leave; (2)
discouraging an employee from using such leave; and (3) action by employer to avoid
responsibilities under CFRA
• Prohibits employer from discriminating or retaliating against employee or prospective employee for
having exercised or attempted to exercise CFRA rights or giving information or testimony regarding
his/her CFRA leave, or another person’s CFRA leave, in any inquiry or proceeding
• All individuals, and not merely employees who are CFRA-qualified, are protected from retaliation for
opposing (e.g., filing a complaint about) any practice that is unlawful (or they reasonably believe is
unlawful) under CFRA
No Waiver [Aligns with FMLA]
• Employees cannot waive, nor may employers induce employees to waive, their rights under CFRA

30. Preparing for Changes to CFRA
• Update CFRA policies, procedures and train the human
resources department and/or management to ensure
compliance with the new regulations
• Replace workplace posters and medical certification forms to
comply with the new CFRA requirements. A sample certification
form is included in California Code of Regulations section 11097
• The DFEH has not yet published its sample new workplace
poster, but has stated it will do so by July 1, 2015
31

31. Thank You!
Julie Capell
Partner
Los Angeles
jcapell@winston.com
Annette Salazar-Shreibati
Associate
Los Angeles
ashreibati@winston.com