Reminder: New CFRA Regulations

If you are an employer covered under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA), you may already be aware of the new regulations that became effective July 1^st. If not, here is a reminder. The new regulations mean it is time yet again to update your employment policies/practices and leave certification forms. The regulatory changes may directly affect the way you collect and document information relating to employee leaves under the FMLA/CFRA. While the amendments span over 11 sections and cover a wide variety of changes, some that many employers will find particularly relevant include:

• Employers are now prohibited from asking employees to provide additional information such as symptoms, or the underlying diagnosis of a medical condition. Accordingly, you should carefully analyze your certification form to ensure your questions could not inadvertently create a violation such as a form which might be interpreted as requesting specifics on medications, treatments and/or type of treating health care provider, etc.
• Employers are now prohibited from contacting the health care provider for any reason other than for certification authentication. Accordingly, you should be cautious about what falls under the undefined term “authentication.”
• Employers must now include a description of employee rights under CFRA in an employee handbook where the employer has a handbook in place. This was already a requirement under FMLA, but your handbook may need updating to meet the combined FMLA/CFRA requirement.
• Employers must now have a “good faith, objective reason” for doubting the validity of a medical certification in order to seek a second opinion. The new regulations also limit an employer’s ability to seek a second opinion to only those situations relating the employee’s own serious medical health condition.
• Employers must now translate CFRA notices in to any language spoken by 10% or more of the employer’s work force. We do not, however, recommend that you rush out and interview all employees about their language skills and fluency.
• Employers should know that the new regulations have clarified the definitions of “joint employer” and “covered employer.” Employers should evaluate their business structure and seek legal counsel to determine if they might fall under either term and to fully understand their status and obligations under CFRA.

While this is not an exhaustive list of all the changes made to the California Family Rights Act regulations, it is certainly enough to get started on ensuring compliance by updating your employment notices, policies and procedures, handbooks, forms as well as training your supervisors and managers. You may also want to compare your certification forms to the new form provided by the Department of Fair Employment and Housing (DFEH) which can be found here. Be sure to familiarize yourself with the complete list of CFRA regulation changes, which can be found here or contact us for assistance. We are always eager to answer your questions and help guide you through the maze of ever changing leave laws!