The California New Parent Leave Act Takes Effect January 1, 2018

Starting January 1, 2018, California’s New Parent Leave Act will require employers who have between 20 and 49 employees to provide eligible employees with up to 12 weeks of unpaid, job-protected leave to bond with a new child. The leave must be taken within one year of the child’s birth, adoption, or foster care placement.

Existing law under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) already makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 weeks of unpaid leave to bond with a new child. However, the CFRA and FMLA only apply to employers with 50 or more employees. Therefore, the New Parent Leave Act will have the greatest impact on employers with 20 to 49 employees who are not currently covered by the FMLA or CFRA.

To be eligible for leave under the New Parent Leave Act, employees must: (1) have been employed by the employer for at least 12 months prior to the commencement of leave; (2) have worked for the employer for at least 1,250 hours during the 12-month period preceding the commencement of leave; and (3) be employed at a worksite where the employer employs at least 20 or more employees within 75 miles of the worksite.

Leave under the law is provided in addition to, not in lieu of, leave provided by California’s Pregnancy Disability Leave law (if the employee is otherwise qualified for pregnancy disability leave). The New Parent Leave Act does not apply to employees who are eligible for leave under the FMLA or CFRA because they would be covered under the leave entitlements pursuant to those laws.

At the end of employees’ parental leave, employees will have the right to return to the same or comparable positions they held before the parental leave began. Indeed, before the leave starts, an employer must provide the employee with a guarantee of reinstatement to the same or comparable position. Failure to provide the guarantee will be deemed a violation of the law, and construed as if the employer refused to provide the required leave.

Parental leave is unpaid under the statute. However, the new law provides that employees shall be entitled, though not required, to utilize accrued vacation pay, paid sick leave, or other accrued paid time off during the period of parental leave.

If an employee takes this leave, the employer must maintain and pay for coverage under a group health plan at the same level and conditions that coverage would have been provided if the employee had continued working.

If both parents entitled to leave under the new law are employed by the same employer, the employer is not required to grant parental leave that would allow the parents to take parental leave totaling more than 12 weeks in total. The employer may, but is not required to, grant simultaneous leave to both of these employees.

Employer Action Items:

• Update your employee handbook and leave policies to include parental leave in compliance with the New Parent Leave Act.
• Notify all persons in your organization who are responsible for administering and approving leaves of their obligations under the new law.
• Prepare or obtain a template notice to send to eligible employees who take parental leave guaranteeing them reinstatement to the same or comparable position upon the expiration of their leave. This notice must be given to every eligible employee before they go on leave, even if they don’t request the guarantee! (Hint: They probably won’t request it.)
• Make sure to properly track the amount of leave new parents take under the law. While the law expressly provides that parental leave does not run concurrently with pregnancy disability leave, it is silent as to other types of leave. Therefore, it’s a good idea to consult with counsel if you believe other types of leave may also apply.