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CFRA Update: What Employers Need To
Know About the Amended
CFRA Regulations
©2015 Seyfarth Shaw LLP
Gaye E. Hertan
Presenters
Debbie L. Caplan
©2015 Seyfarth Shaw LLP
Overview
Quick refresher on 3 key leave laws and
what will not be changing
FMLA / CFRA / PDL
Amended CFRA regulations
Interplay of FMLA and CFRA
How will FMLA and CFRA be different?
How will FMLA and CFRA be alike?
Key issues / pitfalls to avoid for CA
3
©2015 Seyfarth Shaw LLP
3 Basic Rights Under FMLA and CFRA
An eligible employee has 3 basic rights:
1. An absolute entitlement to 12 weeks of leave
in a 12-month period (26 weeks for FMLA
military caregiver).
2. The right to have health benefits continued as
if still actively working.
3. The right to reinstatement to the same or
equivalent job.
©2015 Seyfarth Shaw LLP
FMLA / CFRA
Key Differences
• No family “service member” leave under CFRA
• Employee’s own pregnancy disability is not
covered by CFRA (PDL covers it)
• Registered domestic partners covered by
CFRA, but not FMLA
• Right to intermittent leave for bonding under
CFRA, but not FMLA
• When they do not run concurrently…
©2015 Seyfarth Shaw LLP
FMLA / CFRA
Run Concurrently, Except:
Pregnancy-Related Disability (PDL)
Care for Registered Domestic Partner with Serious Health Condition (CFRA only)
Qualifying Exigency (FMLA only)
Military Caregiver beyond 12 weeks or to care for individual for whom employee is “next of kin” (FMLA only)
©2015 Seyfarth Shaw LLP
*INTERPLAY * FMLA / CFRA / PDL
FMLA – 12 weeks
PDL – 4 months CFRA – 12 weeks
During pregnancy-related
disability, FMLA and PDL
run concurrently, but not
CFRA, which excludes
employee’s pregnancy-
related disability from the
definition of a “serious
health condition.”
After pregnancy-
related disability,
employee is entitled to
up to 12 additional
weeks under CFRA to
“bond” with baby or for
any other qualifying
reason.
0 12 wks 4 mo. 12 more
wks
©2015 Seyfarth Shaw LLP
Amended CFRA Regulations
Effective July 1, 2015
Located at 2 CCR §§ 11087 – 11097
California Family Rights Act statute has not
been amended, just the regulations
Incorporate the March 8, 2013 FMLA
regulations to the extent not inconsistent with
CFRA statute and regulations, other CA law, or
the CA Constitution
8
©2015 Seyfarth Shaw LLP
Overview of Changes
Incorporate newer version of FMLA regulations (3/8/13)
Technical and clarifying changes from past version
Some changes conform CFRA with FMLA
Some changes indicate where CFRA differs from FMLA
Updated CFRA Notice
Updated CFRA Medical Certification
Generally will not require overhaul of FMLA/CFRA policies,
but…
Use updated Notice(s) and Certification Form
Impacts leave administration
9
©2015 Seyfarth Shaw LLP
Examples of FMLA and CFRA Alignment
Eligibility - 7 year
break in service
Joint employer
Employee with no fixed
worksite
Time to respond to
employee leave request –
5 business days
Retroactive designation
Calculation of “12
workweeks” of leave where
employee’s work schedule
varies from week to week
Treatment of overtime
Holidays during leave
Minimum increments of
leave where it is physically
impossible to begin or end
work mid-shift
Fitness for duty release for
intermittent leave where
reasonable safety concerns
exist
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©2015 Seyfarth Shaw LLP
Important Clarifications
1. Use of Paid Time Off During Leave:
What is “unpaid leave” under the FMLA/CFRA?
When may employees elect to use paid time off?
When may employers require use of paid time off?
What happens when the employee is receiving CA
benefits?
2. Exempt Employee Salary Issues During
Intermittent or Reduced Schedule Leave
3. Becoming Eligible During a Leave
4. Reinstatement Issues
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©2015 Seyfarth Shaw LLP
Amended CFRA Regulations
Key Differences Between
FMLA and CFRA
vs.
©2015 Seyfarth Shaw LLP
Inpatient Care
FMLA
1. Requires overnight
stay in hospital or
other medical
facility.
CFRA
1. No overnight stay
required. Requires
admission to facility
where overnight stay
is expected even if it
later develops that
person did not remain
overnight.
Definition of Serious Health Condition
©2015 Seyfarth Shaw LLP
Incapacity
Plus Treatment FMLA
1. Incapacity must be for more than 3 consecutive full calendar days
2. The treatment by a health care provider must be “in person.”
3. Must see HCP within 7 days of first incapacity (first or only visit).
4. Must visit the HCP 2 times within 30 days of first incapacity, unless extenuating circumstances exist that prevent a follow-up visit within 30 days.
CFRA 1. Incapacity must be for more
than 3 consecutive calendar days (does not have to be full days.)
2. No “in person” requirement
3. No requirement that HCP be seen within 7 days of first incapacity.
4. No requirement that treatment be 2 times within 30 days of first incapacity.
Definition of Serious Health Condition
©2015 Seyfarth Shaw LLP
Pregnancy
FMLA
1. Any period of
incapacity due to
pregnancy or for
prenatal care.
CFRA
1. Employee’s own pregnancy
excluded from the definition
of SHC under CFRA. Employees receive up to 4
months of PDL leave for their
own pregnancy-related
disability.
2. Pregnancy is still considered
a SHC for purposes of
family care leave.
Definition of Serious Health Condition
©2015 Seyfarth Shaw LLP
Bonding Leave
FMLA 1. Is only available if the
employer agrees, but the
employer’s agreement is not
required.
1. CFRA 2. Employee is entitled to take
intermittent bonding leave.
The basic minimum duration of the
leave is two weeks, except on two
occasions an employee may
request such a leave of less than
two weeks’ duration
The employer may grant requests
for additional leave in less than two
week increments, but is not
required to do so.
3. Remember, CFRA bonding leave
begins after pregnancy-disability
leave.
Intermittent Leave for Bonding
©2015 Seyfarth Shaw LLP
What Can Be
Required? FMLA
1. All information on
applicable DOL medical
certification (separate
ones for family member
SHC and employee SHC),
including “medical facts”
regarding condition.
CFRA
1. Date, if known, SHC
commenced
2. Probable duration of condition
3. For employee’s own SHC,
statement that due to the SHC,
employee is unable to work or
perform one or more essential
job functions
For family care, estimate of
the amount of time HCP
believes the employee needs
to care for the family member.
Medical Certification
©2015 Seyfarth Shaw LLP
FAIR EMPLOYMENT & HOUSING COUNCIL
CERTIFICATION OF HEALTH CARE PROVIDER
(California Family Rights Act (CFRA))
IMPORTANT NOTE: The California Genetic Information Nondiscrimination Act of 2011 (CalGINA) prohibits
employers and other covered entities from requesting, or requiring, genetic information of an individual or
family member of the individual except as specifically allowed by law. To comply with the Act, we are asking
that you not provide any genetic information when responding to this request for medical information.
“Genetic Information,” as defined by CalGINA, includes information about the individual’s or the individual's
family member's genetic tests, information regarding the manifestation of a disease or disorder in a family
member of the individual, and includes information from genetic services or participation in clinical research
that includes genetic services by an individual or any family member of the individual. “Genetic Information”
does not include information about an individual’s sex or age.
1. Employee’s Name: _____________________________________________________________________
2. Patient’s Name: ________________________________________________________________________
Patient’s relationship to employee: _________________________________________________________
If patient is employee’s child, is patient either under 18 or an adult dependent child:
Yes No
☐ ☐
3. Date medical condition or need for treatment commenced:
NOTE: THE HEALTH CARE PROVIDER IS NOT TO DISCLOSE THE UNDERLYING DIAGNOSIS WITHOUT CONSENT OF THE PATIENT:
______________________________________________________________________________________
4. Probable duration of medical condition or need for treatment: ____________________________________
©2015 Seyfarth Shaw LLP
5. Below is a description of what constitutes a “serious health condition” under both the federal Family and
Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).
Does the patient’s condition qualify as a serious health condition?
Yes No
☐ ☐
If the certification is for the serious health condition of the employee, please answer the following:
Yes No
☐ ☐ Is the employee able to perform work of any kind?
(If “No,” skip next question.)
Yes No
☐ ☐ Is employee unable to perform any one or more of the essential functions of employee’s
position? (Answer after reviewing statement from employer of essential functions of employee’s
position, or, if none provided, after discussing with employee.)
6.
©2015 Seyfarth Shaw LLP
If the certification is for the care of the employee’s family member, please answer the following:
Yes No
☐ ☐ Does (or will) the patient require assistance for basic medical, hygiene, nutritional needs,
safety, or transportation?
☐ ☐ After review of the employee’s signed statement (See Item 10 below), does the condition
warrant the participation of the employee? (This participation may include psychological
comfort and/or arranging for third-party care for the family member.)
Estimate the period of time care is needed or during which the employee’s presence would be beneficial:
_____________________________________________________________________________________
Please answer the following questions only if the employee is asking for intermittent leave or a reduced
work schedule.
Yes No
☐ ☐ Intermittent Leave: Is it medically necessary for the employee to be off work on an intermittent basis due to the serious health condition of the employee or family member?
If yes, please indicate the estimated frequency of the employee’s need for intermittent leave due
to the serious health condition, and the duration of such leaves (e.g. 1 episode every 3 months
lasting 1-2 days):
Frequency: ____ times per _____week(s) _____month(s)
Duration: _____ hours or _____ day(s) per episode
Yes No
☐ ☐ Reduced Schedule Leave: Is it medically necessary for the employee to work less than the employee’s normal work schedule due to the serious health condition of the employee or family member?
If yes, please indicate the part-time or reduced work schedule the employee needs:
_____ hour(s) per day; _____ days per week, from ___________ through __________ date date
Yes No
☐ ☐ Time Off for Medical Appointments or Treatment: Is it medically necessary for the employee to
take time off work for doctor’s visits or medical treatment, either by the health care practitioner
or another provider of health services?
If yes, please indicate the estimated frequency of the employee’s need for leave for doctor’s
visits or medical treatment, and the time required for each appointment, including any
recovery period:
Frequency: ____ times per _____week(s) _____month(s)
Duration: _____hours or ____ day(s) per appointment/treatment
7.
8.
9.
©2015 Seyfarth Shaw LLP
ITEM 10 IS TO BE COMPLETED BY THE EMPLOYEE NEEDING FAMILY LEAVE.
****TO BE PROVIDED TO THE HEALTH CARE PROVIDER UNDER SEPARATE COVER.
10. When family care leave is needed to care for a seriously-ill family member, the employee shall state
the care he or she will provide and an estimate of the time period during which this care will be
provided, including a schedule if leave is to be taken intermittently or on a reduced work schedule:
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
11. ___________________________________ _________________________________________
Printed Name of Health Care Provider Signature of Health Care Provider
____________________________________
Date
12. ________________________________ ___________________________________
Signature of Employee Date
©2015 Seyfarth Shaw LLP
Serious Health Condition
“Serious health condition” means an illness, injury (including, but not limited to, on-the-job injuries),
impairment, or physical or mental condition of the employee or a child, parent, or spouse of the employee that
involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance
abuse. A serious health condition may involve one or more of the following:
1. Hospital Care: Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care. A person is considered an “inpatient” when a heath care facility formally admits him or her to the facility with the
expectation that he or she will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.
2. Absence Plus Treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:
Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct
supervision of a health care provider, or by a provider of health care services (e.g., physical therapist)
under orders of, or on referral by, a health care provider; or
Treatment by a health care provider on at least one occasion which results in a regimen of continuing
treatment under the supervision of the health care provider.
3. Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care. ** Note: An employee’s own incapacity due to pregnancy is covered as a serious health condition under FMLA but not under CFRA.
4. Chronic Conditions Requiring Treatment: A chronic condition which:
1. Requires periodic visits for treatment by a health care provider, or by a nurse of
physician’s assistant under direct supervision of a health care provider;
2. Continues over an extended period of time (including recurring episodes of a single
underlying condition); and
3. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes,
epilepsy, etc.).
5. Permanent/Long-term Conditions Requiring Supervision: A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must
be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
6. Multiple Treatments (Non-Chronic Conditions): Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services
under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation,
etc.), severe arthritis (physical therapy), or kidney disease (dialysis).
©2015 Seyfarth Shaw LLP
Amended CFRA Certification
Use the new form (or modified version of it), but
remember…
You cannot require more than: 1. Date, if known, SHC commenced
2. Probable duration of condition
3. For employee’s own SHC, statement that due to the SHC, employee is unable to work or perform one or more essential job functions
For family care, estimate of the amount of time HCP believes the employee needs to care for the family member.
You cannot require employees to complete a
particular certification form.
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©2015 Seyfarth Shaw LLP
Authentication
FMLA
1. To make the contact, the
employer must use a: health care provider;
human resources
professional;
leave administrator; or
management official
1. Under no circumstances
may the employee’s direct
supervisor contact the
employee’s health care
provider.
CFRA
1. Follows FMLA.
2. This is a key change in
the CFRA regulations
and is positive for
employers.
Medical Certification
©2015 Seyfarth Shaw LLP
Clarification FMLA
1. With the employee’s written
authorization, the employer may
contact the employee’s health care
provider to clarify a medical
certification. To make the contact,
the employer must use a:
health care provider;
human resources professional;
leave administrator; or
management official
2. Under no circumstances may the
employee’s direct supervisor
contact the employee’s health care
provider.
CFRA 1. Even with the employee’s written
authorization, an employer may not contact the employee’s health care provider to clarify a medical certification.
2. The only way to lawfully clarify under the CFRA will be to go through the employee:
Provide the employee with a letter to give to the health care provider seeking clarification and have the employee bring the information back or have the HCP send it directly to the employer.
Medical Certification
©2015 Seyfarth Shaw LLP
Second / Third
Opinions FMLA
1. If employer has a reason to
doubt the validity of the
certification, employer may
require second/third opinion.
2. May obtain second/third
opinion for both: employee’s own serious
health condition
family member’s serious
health condition
CFRA
1. If employer has a good faith,
objective reason to doubt the
validity of the certification,
employer may require
second/third opinion.
2. May obtain second/third
opinion for only: employee’s own serious health
condition
Medical Certification
©2015 Seyfarth Shaw LLP
Recertification FMLA
1. Permitted every six months, in
connection with an absence.
2. No more often than every 30 days,
and only in connection with an
absence. However, if minimum
duration of condition is more than 30
days, then employer must wait until
minimum duration expires (although
may still request every six months).
3. In less than 30 days if employee
requests extension of leave,
changed circumstances, reason to
doubt the validity.
CFRA 1. Only permitted upon expiration of
the time period certified.
2. Employers may obtain annual
certification for ongoing / life time
medical conditions.
3. Note that this is not a change – this
has always been the rule under
CFRA.
Medical Certification
©2015 Seyfarth Shaw LLP
How to Prepare for
New CFRA Regulations
1. Make sure your leave policies are up to date.
2. Use updated Notice(s) as of July 1, 2015.
3. Use the new CFRA medical certification form as of
July 1, 2015.
4. Do not seek to clarify a medical certification directly
with a health care provider, even with the patient’s
consent. You must go through the employee to
obtain any clarification.
28
©2015 Seyfarth Shaw LLP
Thank You!
Gaye E. Hertan
Senior Counsel
Ph: (310) 201-5251
Debbie L. Caplan
Senior Counsel
Ph: (310) 201-5235