Will The End Of Summer See The Expansion Of The California Family Rights Act

Last week, the California State Assembly passed Assembly Bill 2039, which would extend the rights of state, local agency, and private sector employees to claim protected family leave. The California Family Rights Act (“CFRA”) currently provides qualifying employees with up to 12 weeks of unpaid leave during a 12-month period for their own serious health condition, for the birth or placement of a child, or to care for parents, spouses, domestic partners, or children younger than 18 with serious health conditions. Protection also applies in a number of additional situations including for the employee to care for adult children incapable of caring for themselves. AB 2039 would amend the CFRA to allow unpaid leaves for employees to care for siblings, grandparents, grand-children, parents-in-law, or adult children with serious health conditions.

The Assembly vote on the bill split mainly down party lines, with Democrats voting in favor and Republicans against. Proponents of AB 2039, including its sponsor Assemblyman Sandre Swanson, argued that its protections will help contemporary families in California struggling with difficult economic times, and who need to pool resources to care for a broader scope of family members. Opponents have pointed to the burdens the proposed law would place on employers, and how its addition of protections well beyond those of the federal Family and Medical Leave Act (“FMLA”) will supposedly further California’s reputation as a state whose employment laws substantially burden companies choosing to do business here.

Now that AB 2039 has passed the Assembly, the bill goes to the Senate, which must take final action by August 31, 2012. If it passes, the bill will then be presented to the Governor. If he signs it, the bill will take effect January 1, 2013 along with other non-urgency legislation.

What would be the practical effect of AB 2039 on California employers? It would substantially increase the circumstances under which employees can claim up to 12 weeks of protected leave, and the expectation of the Legislature is that employers would simply have to deal with the increased scheduling burden.

That said, several aspects of AB 2039 make it less onerous than it may appear at first glance. First, allowing leave to care for grandparents and other extended family members might not constitute such a substantial extension of existing law because the CFRA already allows an employee to take protected leave for the serious health conditions not just of traditional parents, but of someone who stood “in loco parentis” (i.e., in the place of a parent) for the employee when the employee was a child. This could very well include the employee’s grandparent, or even a sibling, for example.

In addition, by expanding the number of individuals who may take leave, the law might actually ease burdens on California employers to a limited extent by, as a practical matter, allowing key employees to pass on to other more distant relatives the duties of caring for an ill family member. A family may make a collective decision that key employees, whose positions are more critical to their employer, will pass on taking leave while family members in less critical or lower level positions in their jobs may opt to take leave in order to be the caregiver. (A cynical view, however, would be that the new law would simply allow a more extended network of family members simultaneously to claim leave from their respective employers, even if there is only one ill family member requiring care.)

Another important effect of the proposed law – at least as currently written – may be fairly onerous. In most situations, the federal FMLA and state CFRA allow leaves under the same circumstances, and California employers are allowed to run both leaves concurrently if an employee claims rights under one statute. This means in turn that employers generally are only faced with one 12-week leave request per year maximum. But the fact that AB 2039 provides leave in more circumstances than the FMLA means California employers could be faced with CFRA leave requests for which FMLA leave does not run concurrently. This in turn could mean employers could be required to allow 12 weeks of leave for a CFRA request (for example, to care for an ill sibling) and another 12 weeks for a federal FMLA request for a different type of family member (for example, a parent). This greatly extended burden on the employer would exist only because of the happenstance that CFRA and FMLA coverage would differ.

How employers respond to the needs of employees with caregiver responsibilities is an important issue in California law. We will provide further posts on the status of AB 2039 in the next several months.