Leave laws are complex, and they are a very common aspect of an employer’s business operations. Generally, if the number of employees in a company increases, the number of leave requests tend to increase as well. However, even when an employer only has a handful of employees, leave laws can be difficult to navigate, especially when the employer needs to make sure that a sufficient number of employees are present to keep the business operating. The complexity increases when different leave laws seem to cover similar instances, and when standards for those leave laws are unclear or appear to conflict.
As 2020 comes to an end, employers will need to be aware of the changing leave laws that will be in effect in 2021. Most changes have come from the California state legislature and federal agencies, but there are also changes that have come into effect through case law. Below is an overview of some of the top changes to leave laws at the state and federal levels.
FMLA: Ninth Circuit Adopts Definition for “Willfulness”
In November 2020, the federal Ninth Circuit Court adopted a definition for the term “willfulness” with respect to FMLA (Family and Medical Leave Act) claims, since the FMLA code sections do not provide a definition for this term. This California federal court issued an opinion in Olson v. United States clarifying that the proper definition of “willfulness” for FMLA claims comes from the definition that is applied in FLSA (Fair Labor Standards Act) cases. The Ninth Circuit has not previously provided a definition for a “willful” violation, making this new decision particularly impactful.
This clarification is important because it can determine the applicable statute of limitations. Under the FMLA, when there is no finding of a “willful violation,” a two-year statute of limitations applies. When there is a finding of a “willful violation,” on behalf of the employer, a three-year statute of limitations applies. Statutes of limitation present a threshold question in cases that are used to determine whether a case should continue in the litigation process or be immediately dismissed, and thus play an important role in lawsuits.
FFCRA: Approaching Deadline
The FMLA is currently expanded upon by the FFCRA (Families First Coronavirus Response Act) until December 31, 2020. Unless new legislation is passed by Congress, there will be no extension of the FFCRA beyond this expiration date.
PFL: Expansion of Rights
As of January 1, 2021, a new type of claim called Military Assist will be added to expand access to PFL (Paid Family Leave). This expanded leave can be utilized by an employee whose spouse, registered domestic partner, parent, or child has been deployed by the military to a foreign country.
NPLA: Repealed and Revised
The NPLA (New Parent Leave Act) has been repealed by SB 1383, which was signed by Governor Newsom on September 17, 2020. As of January 1, 2021, the NPLA will no longer be in effect, and the CFRA (California Family Rights Act) will be expanded.
CFRA: Broad Revisions and Expansions
As of January 1, 2021, the CFRA will be expanded to include private employers who have 5 or more employees. The CFRA requirement that “the employer has at least 50 employees within 75 miles of the employee’s worksite” will be eliminated on January 1, 2021, expanding the number of covered employers.
The circumstances under which CFRA leave may be taken will also be expanded to include “a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.” Employees will also now be able to take care of additional family members through CFRA leave, including “an adult child, a child of a domestic partner, grandparent, grandchild, or sibling.”
If two parents of a new child work for the same employer, each parent will now be entitled to up to 12 weeks of leave, and two employees cannot be required to split a total of twelve weeks amongst themselves. There was also previously an exception to the reinstatement rights for an employer’s high-paid employees, but that will be eliminated beginning on January 1, 2021.
Additionally, the DFEH (Department of Fair Employment and Housing) will begin offering a mediation program for smaller employers (5-19 employees) and their employees to resolve any disputes over CFRA leave before the employee may proceed with a court case. This new program is expected to be available after January 1, 2021, but only until January 1, 2024.
Conclusion
There are also several other leave laws, including PDL (Pregnancy Disability Leave), EFMLEA (Emergency Family and Medical Leave Expansion Act), and EPSLA (Emergency Paid Sick Leave Act) that also should be considered by an employer when an employee is requesting leave. For help navigating these complexities, attorneys at PKWH can provide guidance.