My employee used her Family and Medical Leave Act (FMLA)/California Family Rights Act (CFRA) time last year to care for her mother. Now she wants to take leave to care for her grandchild. Are we required to provide more time to her?
That is an interesting question and one the new provisions of the CFRA do address. The big change that was made to the California law that went into effect January 1, 2021, included the provisions that added additional family members who are now protected under the CFRA. They include grandparents, grandchildren, siblings and in-laws.
Therefore, even though your employee has already used 12 weeks of FMLA/CFRA last year to care for her mother, she is entitled to request a CFRA leave now for the care of her grandchild.
Whether she is entitled to that additional time depends on her eligibility for the leave (that is, having worked 1,250 hours during the 12 months prior to the leave).
If she was not full time and had missed a lot of work during that time, she may not have worked enough hours to qualify for the leave. Time worked includes regular and overtime hours, but not paid time off (PTO) hours, such as sick, vacation, PTO or holidays.
No COVID Exemption
What if the reason the employee has not worked the 1,250 hours is because we were slow and she was not scheduled to work full-time due to COVID?
There is no exemption from the requirement of working 1,250 hours, even if the reason that she did not have sufficient hours worked was due to a slowdown in work due to COVID-19. Therefore, the employer could deny the leave until such time as the employee has worked the 1,250 hours.
While the CFRA leave may not be available to the employee, the employer should check their employee handbook and past practices to see if they have provided employees with a personal leave or unpaid time off.
A personal leave, while not required by law, is used often to deal with short-term personal or family issues that prevent an employee from working.
Can we grant the employee a personal leave or allow them to work from home?
There is nothing that would prevent an employer from granting a personal leave of absence or allowing the employee to work from home.
Just be aware that what you do for one employee you would be required to do for others similarly situated to prevent discrimination issues. It is up to an employer to decide whether those accommodations can be made.
No CFRA for Child Care
What if the reason the employee needs to take the leave to care for the grandchild is due to child care not being available?
The CFRA provisions relating to care for family members require that the child have a serious medical condition and do not cover situations where child care is not available. On that basis, the CFRA request could be denied.