Cal-Peculiarities: How California Employment Law is Different 2022 Edition

30 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com other cooling device suitable for storing milk) do not necessarily have to be in the lactation room, they must be in “close proximity” to the employee’s workspace . 15 If a multipurpose room is used for lactation and other uses, then lactation must take precedence over the other uses. California makes denial of lactation break time or space an unlawful denial of a rest break, and subjects the employer to a $100 penalty per violation. California also requires employers to develop and implement a policy regarding any lactation accommodations. The policy must describe the employee’s right to file a complaint with the Labor Commissioner for an alleged violation, must appear in the employer’s handbook or policies, and must be distributed to new hires and to employees who ask about or request parental leave right s. 16 California prohibits retaliation against any employee attempting to exercise any right the law create s. 17 Employers with fewer than 50 employees may be exempt if they can show that compliance would cause undue hardship. But such employers must make reasonable efforts to provide a room that is other than a toilet stall, and that is in close proximity to the employee’s work area. The FEHA also includes breastfeeding and related medical conditions within its very expansive definition of “sex” (see § 6.2), and thus forbids California employers to discriminate against those who breastfeed. Note that while the California Labor Code specifies that breaks must be provided when the employee needs to express milk “for the employee’s infant child,” an employee expressing milk for another purpose (e.g., donation) should be accommodated under the FEHA . 18 San Francisco ordinance. San Francisco employers must provide, for employees who want to express milk, a clean, private space that includes a place to sit, has access to electricity, and has a surface space for a breast pump. The space must be in close proximity to a sink with running water and a refrigerator. If such a space does not exist, then the employer must create it, unless doing so would impose an undue hardship. San Francisco employers must provide notice of their lactation accommodation policy to employees upon hiring, and whenever employees ask about pregnancy or parental leav e. 19 2.3 Family Care and Medical Leave Before 2021, eligibility for leave under the California Family Rights Act Leave aligned with eligibility for leave under the federal Family and Medical Leave Act. That is no longer true. The CFRA now applies to employers with as few as five employee s 20 (unlike the 50-employee threshold applying under the FMLA). The CFRA no longer includes a geographical eligibility requirement (while the FMLA continues to require that an employee work at a location with at least 50 employees within 75 miles) . 21 A ccordingly, employees now are eligible for CFRA leave if they work for a covered employer with five or more employees. The 2020 CFRA amendments also eliminated the previous carve-out that existed for certain highly paid or key employees . 22 Both state and federal statutes continue to require that the employee have (1) more than 12 months of service with the employer, with (2) 1,250 hours of that service within the last 12 month s. 23 The CFRA, like the FMLA, entitles eligible employees to unpaid leave of up to 12 workweeks during a 12-month period because of (1) birth, adoption, or foster care placement of a child or (2) serious health condition of the employee or the employee’s covered family member. As of 2021, the CFRA also creates eligibility for a qualifying exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner (CFRA only), child, or parent in the U.S. Armed forces . 24 A s of 2021, the CFRA expands “Covered Family Member” beyond children, parents, spouses, or domestic partners; the term now also encompasses grandparents, grandchildren, and siblings with a serious health condition, with “child” now more broadly defined to include all children regardless of age, as well as children of domestic partners . 25 And as of January 1, 2022, the