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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 31 already broad definition of “parent” extends further, to protect leave to care for a parent-in-law with a serious health condition . 26 The CFRA continues to provide more employee entitlements than the FMLA. The CFRA entitles employees to intermittent leave for bonding without the employer’s permission; both parents have the right to a full 12 weeks of bonding leave, and the basic minimum duration of that leave generally is two weeks . 27 F urther, employees who have taken pregnancy disability leaves of up to four months under the California PDLL (concurrently with FMLA leave) may take 12 more weeks of CFRA leave to bond with their child (or for any other CFRA-qualifying reason), during which the employer must continue health insurance coverage. The CFRA also peculiarly restricts employer inquiries. California employers cannot require “medical facts” (e.g., symptoms or a diagnosis) and certain other information that the FMLA permits an employer to obtain as part of a medical certification, and California employers also cannot obtain a second or third medical opinion as to the serious health condition of a family member (as opposed to the employee’s own medical condition, where second and third opinions are permitted) . 28 The CFRA forbids employers from interfering with an employee’s exercising or attempting to exercise CFRA right s. 29 F or example, an employee fired for excessive absenteeism invoked this provision to sue his former employer. The employer’s policy called for terminating employment after eight unexcused absences, with prior unexcused absences being forgiven if followed by a 60-day period of no absence. The employer refused to count CFRA leave days as days of “no absence.” The employee claimed that this refusal was unlawful retaliation against him for using his CFRA leave. The Court of Appeal, however, affirmed a summary judgment for the employer, holding that refusing to count the employee’s CFRA days towards 60-day “no absence” periods did not violate the CFRA. The employee was not penalized for taking CFRA leave. Rather, he was penalized for his unexcused absences. His taking CFRA leave did not increase the number of scheduled work days he had to remain absence-free. Otherwise stated, the benefit of absenteeism forgiveness was a reward for working, and the CFRA does not require that an employee be allowed to accrue such benefits while on CFRA leave . 30 The 2020 amendments to the CFRA replaced California’s short-lived New Parent Leave Act—an interim measure that made baby bonding available to employees of employers with only 20 employees within 75 miles (rather than 50). Now all types of CFRA leave are available to eligible employees of employers with over five employees in the United States . 31 DFEH small employer mediation program. Indicating a concern about fostering new litigation for smaller employers affected by the 2020 expansion of the CFRA, the Legislature directed the DFEH to create a small employer family leave mediation pilot program. The pilot program would authorize a small employer or the employee, within 30 days of a right-to-sue notice, to request mediation through the DFEH’s dispute resolution division. The request would suspend the employee’s civil action, and toll the limitations period for related claims, until the mediation is complete. The law will be repealed on January 1, 2024 . 32 2.3.1 Employee right to rely on spokesperson while on leave? Ordinarily, an employer can discipline an employee on leave who refuses to communicate. But the Court of Appeal reversed a summary judgment for an employer that had dismissed an employee on leave for refusing to respond to repeated follow-up inquiries regarding his condition, and for insisting instead that any communication be through his wife or his workers’ compensation attorney or his physician. To the employer, the employee’s behavior was a clear case of insubordination, warranting dismissal, but the Court of Appeal found a triable issue of whether the employer had been reasonable in insisting on direct communication with its employee. The employee’s psychiatrist had advised him to avoid stressful situations and he had felt “too stressed out” to speak with his employer directly. The Court of Appeal concluded that “nothing precluded [the employer], at a minimum,