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Employees’ Medical Leave Rights Expanded in 2021: Employers of Five or More Employees May Now Be Obligated to Offer Leaves Where Once They Had Not

There was a time when only employers of 50 or more employees were required to offer their employees up to 12 weeks per year of job-protected unpaid leaves with continuing group medical benefits, because of the employee’s serious health condition, to care for a family member with a serious health condition, or child bonding with a new child born, adopted or placed as a foster child with the family. The same still applies under federal law, known commonly as the Family and Medical Leave Act (FMLA). Until December 31, 2020, that was also true under the California Family Rights Act (CFRA), which paralleled the federal law. However, since January 1, 2021, the CFRA now covers employees of employers with five or more employees, much to the surprise and disgruntlement of many small business owners (alas, we have found disgruntled employers!).

The coverage under the FMLA currently, and previously under the CFRA, came into play for employers that employed 50 or more employees within a 75 mile radius of the worksite of the employee requesting the leave. Such a limit made sense. Because the employee would be out for up to 12 weeks, yet would have the right to come back to the same or a comparable job after the 12 weeks of leave. Having 50 or more employees in the immediate area meant that the employer should, under most circumstances, be able to absorb the loss of the one employee for that period of time.

With the recent amendment to Government Code section 12945.2, redefining a covered employer as having five or more employees, with no geographic limits, means that when one employee goes out for 12 weeks under CFRA, 20% of that employer’s workforce is now out and retains the right to come back to the same or a comparable position at the end of the leave. Added to that is the fact that group medical benefits must continue if the employee on leave was already covered by the plan and the employer’s contribution, if any, must continue through the leave period. The employee will need to pay any premium contribution he or she normally paid in order to keep that coverage in place.

While an employer may hire a temporary fill for the position during the 12 weeks, it will now have to absorb the costs of continuing medical insurance premiums, the likely reduced productivity for a period of time, and the costs associated with hiring and training a replacement or temporary employee, unless the employer’s remaining four or five employees are able to pick up the slack during the leave period. The potential impact on small businesses is significant and many small business owners are unaware of the recent change in CFRA coverage, so they fail to offer it to those who must go out on such a leave.
Other leaves or forms of leave, such as pregnancy disability leave of up to four months, or extended incremental leave to bond with a new child, may also significantly impact employers of five or more employees. Keeping up with the laws on employee leaves can be a real challenge. Establishing a relationship with a competent and reputable employment law attorney may ease that burden tremendously.

The Author, Donald W. Hitzeman, is a shareholder with Reid & Hellyer, A Professional Corporation, and an experienced Business Law Litigator and Transactional Attorney. He has over 38 years of legal experience, including advising business owners and operators on employee issues, as well as general business litigation, transactional matters and estate planning. He may be reached at his Murrieta office at (951)695-8700.