California Leave Updates for 2023 and End of 2022

Employers with employees in California are advised to take note of the various updates to both paid and unpaid leave laws in California for 2023, including a new bereavement leave protection and an update to the definition of family members under both the California Family Rights Act (CFRA) and California paid sick leave law. California employers should also be aware that the California COVID-19 supplemental paid sick leave requirements have been extended through December 31, 2022, along with a new relief grant program for small businesses and nonprofits. Read on for more information and scroll to the bottom for employer next steps.

Bereavement Leave Protected in 2023

Governor Newson signed Assembly Bill 1949 on September 29, 2022, amending the California Family Right Act (CFRA), providing eligible employees with five days of unpaid, job-protected bereavement leave (“bereavement leave”) for the death of a family member. These five days of protected bereavement leave are in addition to, and separate from, the 12 weeks of unpaid, job-protected leave under CFRA.

Bereavement leave requirements apply to employers with five or more employees nationwide. Eligible employees are those employees working in California and employed for at least 30 days prior to taking bereavement leave. Family member includes an employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, and parent-in-law, as defined under CFRA.

The days of bereavement leave taken by an employee are not required to be consecutive but the leave must be completed within three months of the date of death of the family member.

Bereavement leave is generally unpaid unless an employer maintains an existing paid bereavement leave policy for employees. Employees may also offset their five days of unpaid bereavement leave with other accrued paid leave (vacation, personal or sick time, for example) that is otherwise available to them.

Employers may require employees to provide documentation of the family member’s death within 30 days of the first day of the bereavement leave but must maintain the confidentiality of an employee requesting bereavement leave, including the documentation. Documentation includes a death certificate, published obituary or other written verification of death, burial, or memorial services.

Employers are prohibited from refusing to hire, discharging, demoting, fining, suspending, expelling, or discriminating against an employee who takes bereavement leave. Employers are also prohibited from interfering with or denying the exercise of an employee’s bereavement leave rights.

Employees covered by a collective bargaining agreement will not be eligible for bereavement leave under certain conditions. Consult with employment and labor law counsel for more information here.

Bereavement leave for employees in California will take effect on January 1, 2023.

"Designated Person" Update to CFRA and CA Paid Sick Law for 2023

Governor Newson also signed Assembly Bill 1041 on September 29, 2022, amending both CFRA and the California Healthy Workplaces, Healthy Families Act, also known as the California paid sick leave law (CA PSL). This amendment expands the definition of “family member” to include a “designated person” that an employee may take CFRA or CA PSL leave to care for, starting in 2023.

CFRA “Designated Person”

Currently, CFRA defines “family member” as an employee’s child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or domestic partner.

“Designated person” under CFRA is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period for family care and medical leave.

As a refresher, CFRA provides job-protected, unpaid leave to eligible employees for 12 weeks to care for their own serious health condition or a family member with a serious health condition, to bond with a new child, and for military exigency leave for an employee’s spouse, domestic partner, child or parent. Employers with five or more employees nationwide are subject to CFRA. Employees working in California are eligible for CFRA once they have more than 12 months of service with the employer and have worked at least 1,250 hours with the employer during the previous 12-month period.

On a practical level, CFRA’s current definition of family member is already more expansive than its federal counterpart, the federal Family Medical and Leave Act (FMLA), which defines family member more narrowly as an employee’s spouse, child, or parent. With the addition of “designated person” defined as a family member under CRFA, there will be further discrepancies between CRFA and FMLA leave (which may run concurrently, as applicable) when used to care for certain family members with a serious health condition.

Moreover, California’s Paid Family Leave (CA PFL) law provides a state-paid partial wage replacement benefit program for eight weeks to care for a family member with a serious health condition, defined as an employee’s child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or domestic partner. However, CA PFL’s definition of family member was not amended by Assembly Bill 1041 to include “designated person” as a covered family member. Although CA PFL is a paid benefit and CFRA is unpaid, job-protected leave, they often overlap for a period of time. In those instances where an eligible employee will take CFRA leave to care for a “designated person,” they will not be able to claim CA PFL benefits for this leave. Consult with employment and labor law counsel for more information.

CA Paid Sick Leave “Designated Person”

Currently, CA PSL law defines “family member” as an employee’s child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or domestic partner.

“A designated person” under CA PSL is defined as a person identified by the employee at the time the employee requests paid sick days. An employer may limit an employee to one designated person per 12-month period for paid sick days.

As a refresher, CA PSL provides paid sick leave time to employees working in California, earning one hour of paid leave for every 30 hours worked. Employers may limit the use of CA PSL to 24 hours or 3 days in each year of employment. Employees may begin using accrued CA PSL on the 90^th day of employment. CA PSL can be used for an employee’s own or a family member’s existing health condition or preventive care (including diagnosis, care, or treatment) or for specified purposes for an employee who is a victim of domestic violence, sexual assault, or stalking. Employers are required to display a CA PSL poster in a prominent place for employees to read, provide a written notice of CA PSL rights upon hire, and provide the number of available CA PSL days on an employee’s pay stub or other pay-related document. Accrued CA PSL may be carried over to the next year, but may be capped at 48 hours or six days.

Note there are discrepancies between the new “designated person” definition under CA PSL and local paid sick time ordinances in certain California jurisdictions (i.e., San Francisco and other cities) that also contain “designated person” definitions. Consult with employment and labor law counsel for more information and how to reconcile these local ordinance definition discrepancies, as necessary.

“Designated person” updates to family member definitions under CFRA and CA PSL will take effect on January 1, 2023.

Covid-19 Supplemental Paid Sick Leave Extended Through 12/31/22

Finally, Governor Newson signed Assembly Bill 152 on September 29 2022, extending the 2022 COVID-19 supplemental paid sick leave (CA SPSL) law to expire on December 31, 2022. The original expiration date for CA SPSL was September 30, 2022.

Click here for a previous Risk Strategies article discussing the CA SPSL law in more depth.

CA SPSL Relief Grant Program

Assembly Bill 152 also created and funded a CA SPSL relief grant program for certain small businesses and nonprofits that are providing CA SPSL to employees. These organizations will be able to apply for a relief grant of up to $50,000 to offset these costs through the California Small Business and Nonprofit COVID-19 Relief Grant Program.

A qualified small business or nonprofit must meet the following conditions outlined below to apply for this relief grant:

1. A small business must be a "C" corporation, "S" corporation, cooperative, limited liability company, partnership, or limited partnership.

2. A nonprofit must be a registered 501(c)(3), 501(c)(6), or 501(c)(19).

3. Must be currently active and operating and began operations before June 1, 2021.

4. Have 26 to 49 employees (proof must be submitted with an attestation and payroll data)

5. Have a physical presence in California.

Click here for the California state webpage for more information on applying for these CA SPSL relief grants.

Next Steps for Employers with California Employees

1. Update (or create new) bereavement leave policies for January 1, 2023.

2. Revise employee policies, procedures, and handbooks to reflect these “designated person” definition updates under both CFRA and CA PSL for January 1, 2023. Given the definitions of “designated person” are slightly different under CFRA and CA PSL, policies, procedures, and handbooks should reflect as such.

3. Consult with employment and labor counsel regarding the nuances around these “designated person” definitions to CFRA and CA PSL, particularly around their intersection with FMLA, CA PFL, and local paid sick time ordinances.

4. As 2022 winds down, ensure payroll and time & attendance systems reflect the extension of CA SPSL requirements through December 31, 2022, and remember to check the CA state webpage for information on how to apply for a CA SPSL relief grants, if eligible.

Risk Strategies will continue to work diligently to provide our clients with the most up-to-date information. Contact us directly at benefits@risk-strategies.com.