Leave to Care for Nonrelatives May Now Be Job-Protected

The California Family Rights Act (CFRA) has provided critical support for the state’s workers throughout the COVID pandemic. It allowed employees at companies with five or more workers to take up to 12 weeks of family or medical leave during a 12-month period to care for themselves or for family members who were dealing with COVID complications or other serious health issues.

Without the CFRA and the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), as well as COVID-specific Sick Leave Laws, those workers would have been required to show up for work or face consequences – such as discipline or termination – if they failed to do so. The laws provided important safety nets for workers buffeted by the pandemic, but they had serious limitations. They placed boundaries around the events qualifying workers for job-protected leave.

Unless a worker provided care to a “relative” – a parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner – they arguably had no legal right to take protected leave. Imagine, for example, that a best friend from childhood contracted COVID while visiting from the other side of the country. Or a sister’s child suffered an injury while that sister was attending an important conference out of town. Would it not make sense for the impacted worker to take leave to care for those individuals? Under current law and dependent on the employer’s policies, they may have done so at their own risk.

That changed last month. On September 29, Gov. Gavin Newson expanded the reach of the CFRA to include nonrelatives within the scope of job-protected leave. When the governor signed Assembly Bill 1041 into law, he made it possible for California employees to take leave to care for their “chosen family” or “extended relatives.”

The new law expands the list of individuals for whom an employee will be allowed to take leave under the CFRA and the HWHFA. Beginning January 1, 2023 – too late for many who were impacted by COVID – employees may identify a “designated person” for whom they have care responsibilities. Paid sick days will also be extended under California’s Sick Leave Law to cover care for any such “designated person.”

Under the law, a “designated person” can be “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” There is no further definition for the term, and an employee is not obligated to identify their “designated person” until such time as they actually request to take leave. Employers, however, may limit an employee to just one “designated person” per 12-month period.

Although at first blush the new law favors employees by expanding their rights to take job-protected leave to care for others, it also benefits employers. Before a company is obligated to grant such a leave, it can require proof that the designated person is actually a key person in the employee’s life. Given that such leave can be limited to one designated person per year, this gives companies the ability to control how it is used.

Companies routinely ask workers – on personnel forms and other administrative documents – to identify key contacts with whom the employer can communicate in the event of an emergency. Such information, although not dispositive, can help an employer validate a “designated person” request.

If appropriate, employer policies and handbooks should now be updated to put workers on notice that only one “designated person” may be identified in a 12-month period and that the employer may require additional supportive documentation before granting a CFRA leave request for a nonrelative. As the law is implemented, we can expect to see further clarification and definition of who constitutes a “designated person.”

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