On September 29, 2022, Governor Gavin Newson signed AB 1041, expanding an employee’s right to take up to 12 weeks of protected unpaid leave from work to care for a person designated by the employee, starting January 1, 2023.
The California Family Rights Act, originally enacted in 1993, was amended in 2020 to expand the definition of employer to those employing five or more employees, effective January 1, 2021. The CFRA makes it an unlawful employment practice for a California employer with five or more employees to refuse to grant a request from an employee who meets specified requirements to take up to a total of 12 workweeks of protected leave from work in any 12-month period to care for their own medical condition or that of a family member. During this leave period, an employee could be required to use Paid Family Leave benefits, sick leave for their own condition, or accrued vacation pay, while the employer is required to continue to pay for the employer portion of any group medical insurance benefit.
As of January 1, 2023, this latest legislation expands the class of people for whom an employee may take CFRA leave to care for to include a designated person. Government Code section 12945.2 defines “designated person” to mean: “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The employee is permitted to identify the designated person at the time the employee requests the leave. Interestingly, the changes to the law do not define what is meant by “the equivalent of a family relationship,” so there may be some level of subjectivity and even confusion created by this ambiguity until either the legislature or the courts further define this term.
The law allows an employer to limit an employee to one designated person per 12-month period for CFRA family care and medical leave. Preferably, this should be done in writing before leaves under the CFRA are requested. At the very least, however, this limitation should be put in writing to an employee requesting this leave when the designated person is identified by the employee when requesting leave. Employers would do well to amend their employee handbook to include this limitation, or at least put out a written policy to employees outlining the limitation.
The author, Donald W. Hitzeman, a shareholder with Reid & Hellyer, A Professional Corporation, is an experienced Business Law Litigator and Transactional Attorney. He has over 38 years of legal experience, including advising business owners and operators on employment issues, as well as general business litigation, transactional matters and estate planning. He may be reached at his Murrieta office at (951)695-8700 or dhitzeman@rhlaw.com.