Newly enacted Assembly Bill (AB) 1041, expanded the protections under the California Family Rights Act (CFRA) and California Paid Sick Leave law (PSL). Employees can now include a “designated person” for whom they can take leave from work.
Employees of businesses employing five or more people can now take protected leave to care for a designated person. A designated person for CFRA purposes is any individual related by blood or whose association with the employee is the equivalent of a family relationship (there is no description, example or explanation of what is “the equivalent of a family relationship in the law). Thus, employees can now choose CFRA leave so long as the person they are seeking to care for are akin to a family member.
The amendments to California’s Paid Sick Leave law define “designated person” differently, and more broadly than under the CFRA. For the purpose of PSL, “family member” as used in that statute now includes a designated person who is simply a person identified by the employee at the time the employee requests paid sick days.
AB 1041 creates new potential exposures for employers. The bill allows employees to designate one new person for each twelve-month period. While employers are free to limit designated persons to just one in the period of a year, employees are entitled to select a new designated person every twelve months.
When requesting either CFRA or paid sick leave, an employee must be allowed to designate a person at the time the request is made. Employers therefore cannot require employees to designate a person in advance.
A second leave bill that recently became law, AB 1949, focuses on bereavement leave. It requires any business which employs five or more persons to allow qualified employees up to five days of bereavement leave for the death of a family member. If an employee has worked thirty or more days within the last twelve months, they are eligible for this bereavement leave.
Presently, the law does not explicitly require bereavement leave for the death of designated persons, but only for a traditional family member (“a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-inlaw”).
AB 1949 presents a few potential problems for employers. Employers must be aware that an employee is not required to take all of their bereavement leave at once. Although the employees’ days off do not have to be consecutive, employers may require this leave to take place within three months of the death of the family member. Although the law permits bereavement leave to be unpaid, employees must be permitted to use vacation, personal leave, accrued and available sick leave, or other available compensatory time.
If an employer has an existing bereavement leave policy, it must nonetheless meet the requirements of the new law (i.e., provide at least five nonconsecutive days of leave time). If the employer already has some paid bereavement days (but not five), it can comply with this new law by offering the remaining days as unpaid leave or allowing use of other paid time off.
While the law allows employers to require “documentation” of the death of the family member, it permits a wide array of documentary evidence including death certificates, published obituary and more.
AB 1949 prohibits employers from retaliating against an employee who requests or takes bereavement leave, and it prohibits discrimination or interference with employees seeking to exercise these new rights.
An anomaly in these laws arises should a designated person for whom an employee is providing care dies. Under the law as presently written that employment would not be entitled to bereavement leave for the designated person.
Confused? If so, contact your company counsel when you have questions about a leave requested by an employee, and err on the side of compassion.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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