Explaining California Paid Family Leave and the new California Family Rights Act

California has 2 plans to help employees when they have a family emergency, or the birth of a new baby.  For years, California has had the Paid Family Leave (PFL) Act which applies to all employees and employers in California.  It is paid out of a fund that is deducted from employee paychecks along with unemployment and State Disability.  In fact, the employee goes to the EDD to file for PFL.  It provides about 60% of normal wages for the employee for up to 6 weeks away from work while they bond with a new baby or care for a family member.

California also has the CPFL which mirrors the Federal FMLA that you may have heard about.  This applies to businesses with 50 + employees.  Employers were having a problem following California law at the same time as meeting Federal FMLA standards.  So, we now have an updated California Family Rights Act which helps bridge the gap for employers and employees in this program.

ONE VERY IMPORTANT THING TO KNOW……

If you provide health care for your employees, you must continue the coverage for the length of the leave up to 12 weeks.  So, if you have a stated policy that says any leave longer than 2 months will be turned over to COBRA benefits….that will not apply in this case.

Below is the CFLA from the Cal.gov website:

 

California Family Rights Act (CFRA)

 

The California Family Rights Act (CFRA) (Gov. Code, § 12945.2) was established to ensure secure leave rights for the following:

Birth of a child for purposes of bonding

Placement of a child in the employee’s family for adoption or foster care

For the serious health condition of the employee’s child, parent or spouse

For the employee’s own serious health condition

Benefits

An employer is not required to pay an employee during a CFRA leave, except when an eligible employee elects, or the employer requires, the employee to use any accrued vacation time or other accumulated paid leave other than accrued sick leave.

However, if CFRA leave is for the employee’s own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer.

An employer must continue health care coverage for employees during their CFRA leave

If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee’s CFRA leave. This obligation commences on the date leave first begins. The obligation continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period.

An employer must continue other benefits during an employee’s CFRA leave

During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave.

Eligibility Requirements

CFRA leave

An employee may take an unpaid leave for the birth of a child for purposes of bonding, for placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition.

Health condition

Serious health condition means illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves either:

In-patient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility

Continuing treatment or supervision by a health care provider

Employers covered under CFRA

Employers subject to CFRA are those who do business in California and employ 50 or more part-time or full-time employees, including non-profit religious organizations. Covered employers also include the State of California and any of its political and civil subdivisions, and cities and counties, regardless of the number of employees.

Requirements employee must satisfy to be eligible to take a CFRA leave

To be eligible for CFRA leave, an employee must be either a full-time or part-time employee working in California, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee’s work site.

Leave Requirements

The maximum CFRA leave entitlement

Leave under the California Family Rights Act (CFRA) may total up to 12 workweeks in a 12-month period. It does not need to be taken in one continuous period of time.

How the 12-month period is calculated

An employer may choose how to compute the 12-month period in which the 12 workweeks of leave entitlement occurs, using any of the four calculation methods listed below. An employer must apply the chosen method consistently and uniformly to all employees.

The calendar year

Any fixed “leave year” of 12 months, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date

The 12-month period measured from the date an employee’s first CFRA leave begins

A rolling 12-month period measured backward from the date an employee uses any leave

The CFRA leave may be added onto pregnancy disability leave

At the end of an employee’s period(s) of pregnancy disability leave, a CFRA-eligible employee may request a CFRA leave of up to 12 workweeks for reason of birth of her child if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition nor is there a requirement that the employee no longer be disabled by her pregnancy, childbirth, or related medical condition before taking CFRA leave for reason of birth of her child.

The minimum duration for a CFRA leave taken for the birth, adoption, or fostercare placement of a child

Basic minimum duration of a CFRA leave is two weeks when the leave is taken for the birth, adoption, or fostercare placement of a child. However, an employer shall grant a request for a CFRA leave of less than two weeks duration on any two occasions. In addition, leave taken for the birth, adoption, or fostercare placement of a child must be completed within one year of the qualifying event. Where CFRA leave is taken for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee, leave may be taken intermittently or on a reduced-work schedule when medically necessary, as determined by the health care provider of the person with the serious health condition. However, an employer may limit leave increments to the shortest period of time the employer’s payroll system uses to account for absences.

There are limitations to the CFRA leave entitlement

If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption, or foster-care placement of their child to 12 workweeks in a 12-month period between the two parents. No other limitations restrict these parents from taking a CFRA leave for other qualifying reasons.

Notification

An employee must give advance notice if he/she wants to take a CFRA leave

An employee shall provide at least verbal notice sufficient to make the employer aware the employee needs CFRA qualifying leave. The notice shall state the reason for the leave and its anticipated timing and duration. An employer may require 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not feasible (e.g., not knowing when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be give as soon as feasible. Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA leave. In addition, the employer shall respond to a leave request as soon as possible but no later than ten calendar days after receiving the request.

An employer must inform employees of notice requirements

An employer shall provide notice to his/her employees of the right to request a CFRA leave and shall post the notice in a conspicuous place or places where employees tend to congregate. If the employer publishes a handbook describing other kinds of personal or disability leaves available to its employees, the employer shall include a description of CFRA leave in its next edition. The employer may include both pregnancy disability leave and CFRA leave requirements in a single notice.

Reinstatement

An employer must reinstate the employee at the end of his/her CFRA leave

Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the request of the employee. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule.

Reasons why an employer could deny reinstatement to an employee on CFRA leave

An employer may deny reinstatement to an employee if his/her position ceased to exist, such as in a lay-off. An employer may also deny reinstatement if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.

 

This is from the Ca.gov site for fair employment and housing regarding CFRA

Starting July 1, 2015, Obamacare will punish businesses who help employees with health care

Blog writer’s note: The following is an article Posted By Eric Boehm On July 1, 2015 @ 4:00 am at Watchdog.org.  More information can be obtained at the end of this article. While this article may affect some of our readers, we caution you not to overreact to its contents. Instead, we suggest you contact your tax professional or accountant to inquire about your possible exposure to this issue.

By Eric Boehm | Watchdog.org

Employers who reimburse their workers for health care costs will face massive tax penalties beginning Wednesday.

Prior to the passage of the Affordable Care Act, with its mandate that all Americans purchase insurance and requirement for businesses to offer employees insurance plans, many small companies provided coverage by directly reimbursing medical costs or for the cost of private insurance plans. Businesses do it because that’s a less complicated process than dealing with an official health insurance plan, but continuing to do so after July 1 could cost them hundreds of dollars in fines each day.

IF YOU LIKE YOUR INSURANCE…: Businesses that offer reimbursement for health care costs could face massive IRS penalties beginning on Wednesday. Business groups say many small businesses might be unaware of the risk.

Business groups are calling attention to what they say is an obscure part of Obamacare that could crush small businesses who are unaware of it.

“It’s the biggest penalty that no one is talking about,” said Kevin Kuhlman, policy director for the National Federation of Independent Businesses, on Tuesday.

The penalties will only affect businesses with less than 50 employees. Those with more than 50 employees are already required to offer a health insurance plan.

The new rule is the result of an Internal Revenue Service interpretation of part of the ACA. It seems intended to force employers to offer a group health insurance plan (or leave their employees to fend for themselves on the health insurance exchanges).

The IRS says those reimbursements — technically known as “employer payment plans” [2] — are “considered to be group health plans subject to the market reforms, including the prohibition on annual limits for essential health benefits and the requirement to provide certain preventive care without cost sharing.”

The end result?

“Such an arrangement fails to satisfy the market reforms and may be subject to a $100/day excise tax per applicable employee (which is $36,500 per year, per employee) under section 4980D of the Internal Revenue Code [3],” according to the taxmen.

Business groups say the punishment doesn’t fit the crime.

Even though the total fine is capped at $500,000 per year, that’s still miles ahead of the $2,000 fine that could be waiting for larger companies (those with more than 50 employees) that fail to comply with the individual mandate part of the ACA.

The NFIB says 14 percent of their members do not provide health insurance plans, but instead offer reimbursement.

The owner of a Minnesota-based company with 17 employees told NFIB [4] the new rules would require health benefits to go through the payroll process. That means it is subject to taxes, which reduces employees’ benefits and increases the business’ costs.

“Reimbursing employees for the cost of insurance or medical services is a way for small businesses to help their workers without the administrative headache of setting up a costly group plan,” said Kuhlman. “Most small employers don’t have HR departments or benefits specialists, so this is a simpler, easier way to help their employees.”

The prohibition on employer reimbursement was supposed to start last year, but the IRS postponed implementing it until July 1.

There has been bipartisan support [5] in Congress [6] for eliminating the harsh penalty on small businesses, but bills have not advanced.

“This would be devastating to small businesses and impose hardships on their employees,” said U.S. Sen. Chuck Grassley, R-Iowa, in January, referring to the potential $100-per-employee-per-day fine. “Congress has to fix this problem. [7]”

Note from HR Mobile Services, Inc.

Article printed from Watchdog.org: https://watchdog.org  If you would like more information about this organization or about the author or article, please visit their website .

 

URL to article: https://watchdog.org/226796/obamacare-punishes-small-businesses/

UFW IS SANCTIONED WATCHDOG FOR CAL\OSHA

An settlement was reached between the families of 2 farmworkers who have had heat-related deaths over the past couple of years.  The UFW was also engaged in suing the State of California for not aggressively pursuing violators of the heat-illness regulations.

Since those deaths, Cal\OSHA has raised the standards again as we saw with this year’s roll-out of the program in May.  However, that was not enough.  So, in reaching a resolution to the lawsuits, Cal\OSHA has agreed to sanction the UFW as an official Watchdog.  Also, they have agreed to aggressively increase the inspection and overview of agriculture workers in the State over the next few months.

What this means to every farm and ranch owner is that  you better go back and review your training and if you are AT ANY POINT not in compliance, you should fix it now or face a real possibility of stiff fines and further inspections.  It may also be time to watch your neighbors as well.  When they are not in compliance, that draws attention to all locations around them.  With UFW on board, they are just looking for a good reason to get onto your property and organize your workers.  With the new rules regarding organizing meetings set down by the NLRB and our generous State officials, it could be a very long and difficult Summer.

UPDATE

The California Farm Labor Contractor’s Association sent out the following statement to it’s members:

Beware of Strangers – Control Access to Fields!

Dear CFLCA Members and Others:

Most of you are aware that Cal OSHA recently settled an old lawsuit filed by UFW charging inadequate enforcement of the Heat Illness Prevention standard. That settlement included a memorandum of understanding in which Cal OSHA is required to investigate any reports by UFW staff of non-compliance found among agricultural employers. UFW is now sending representatives to fields under the guise of educational outreach to workers on heat illness prevention. They have been active in the Fresno region. Employers are advised that UFW representatives have NO RIGHT to enter your fields, unless they have filed their Notice of Intent and if access has been granted by the ALRB. The grower would have to receive a copy of the notice. Without such notice, UFW representatives should be asked to immediately leave your premises. Click here for a copy of the questionnaire UFW reps are asking employees to complete. It seeks information regarding employer compliance with the standard. It might be used as evidence against the employer for a violation of the rules. Please train all workers to tell any visitors they must wait to talk to the supervisor. And train all supervisors to check all visitors for identification. For Cal OSHA and other enforcement agencies, the supervisor should advise the government agent to wait while the supervisor calls the designated person (safety/HR/Employer) authorized to allow visitor access to the field. All non-authorized visitors, including UFW and CRLA representatives should be respectfully directed to leave the private property.

More comments from HR Mobile Services, Inc.:

Your best defense is good compliance.  Make sure you have plenty of COOL water available, with disposable cups if you use Igloos.  Make sure you have someone refilling the buckets regularly and that they have ice to keep it cool. You must have adequate shade and seating for your employees who are outside and under HIGH HEAT situations.  You must institute the “buddy system”, your supervisors need to monitor all employees hourly, and more frequent breaks are needed.  Employees are allowed cool-down periods also.  New employees must be monitored and oriented to the high heat for their first 2 weeks at work, to allow them to adapt.

If you have any questions, you may contact your loss prevention specialist at HR Mobile Services, Inc.