Sec. 11092 - Terms of CFRA Leave
§ 11092. Terms of CFRA Leave
(a) The following rules apply to the permissible terms of a CFRA leave, to the extent that they are consistent with the requirements of the Employee Retirement Income Security Act (ERISA). Nothing in these regulations infringes on the employer's obligations, if any, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) or prohibits an employer from granting CFRA leave on terms more favorable to the employee than those listed below.
(b) Paid Leave.
An employer is not required to pay an employee during a CFRA leave except:
(1) An employee may elect to use or an employer may require an employee to use any accrued vacation time or other paid accrued time off (including undifferentiated paid time off (PTO)), that the employee is eligible to take during the otherwise unpaid portion of the CFRA leave. An employee may also elect to use, or an employer may require an employee to use, any accrued sick leave that the employee is eligible to take during the otherwise unpaid portion of a CFRA leave if the CFRA leave is for the employee's own serious health condition or any other reason if mutually agreed between the employer and the employee. If an employee is receiving a partial wage replacement benefit during the CFRA leave, the employer and employee may agree to have employer-provided paid leave, such as vacation, paid time off, or sick time supplement the partial wage replacement benefit, unless otherwise prohibited by law.
(2) For leave for an employee's own serious health condition, the employee may also substitute leave taken pursuant to a short- or long-term disability leave plan, as determined by the terms and conditions of the employer's leave policy, during the otherwise unpaid portion of the CFRA leave. This paid disability leave runs concurrently with CFRA leave and may continue longer than the CFRA leave if permitted by the disability leave plan. An employee receiving any form of disability payments is not on "unpaid leave" and, therefore, an employer may not require the employee to use paid time off, sick leave, or accrued vacation.
(3) An employee receiving Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not on "unpaid leave," and, therefore, an employer may not require the employee to use paid time off, sick leave, or accrued vacation.
(4) Only if the employee requests leave for what would be a CFRA-qualifying event may an employer require the employee to use any accrued vacation time or other paid accrued time off (including PTO) that the employee is eligible to take during the otherwise unpaid portion of the CFRA leave. If an employee uses paid leave under circumstances that do not qualify as CFRA leave, the leave will not count against the employee's CFRA leave entitlement.
(A) If an employee requests to utilize accrued vacation time or other paid accrued time off without reference to a CFRA-qualifying purpose, an employer may not ask whether the employee is taking the time off for a CFRA-qualifying purpose.
1. If the employer denies the employee's request and the employee then provides information that the requested time off is or may be for a CFRA-qualifying purpose, the employer may inquire further into the reasons for the absence. If the absence is CFRA-qualifying, then the applicable rules in section 11092(b)(1) and (2), above, apply.
(5) An employer and employee may negotiate for the employee's use of any additional paid or unpaid time off instead of using CFRA leave provided by this section.
(c) Provision of Health Benefits.
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 or FMLA leave. The following rules apply:
(1) The employer shall maintain and pay for an employee's health coverage at the same level and under the same conditions as coverage would have been provided if the employee had not taken CFRA leave.
(2) The employer's obligation commences on the date leave first begins under CFRA for the duration of the leave, up to a maximum of 12 workweeks in a 12-month period. As section 11044(c) of the Council's pregnancy disability leave regulations state, "The time that an employer maintains and pays for group health coverage during pregnancy disability leave shall not be used to meet an employer's obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This shall be true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements."
(3) A "group health plan" is as defined in section 5000(b)(1) of the Internal Revenue Code of 1986. If the employer's group health plan includes dental care, eye care, mental health counseling, or other types of coverage, or if it includes coverage for an employee's dependents as well as for the employee, the employer shall also continue this coverage.
(4) Although the employer's obligation to continue group health benefits under either FMLA or CFRA does not exceed 12 workweeks in a 12-month period, nothing shall preclude the employer from maintaining and paying for health care coverage for longer than 12 workweeks.
(5) An employer may recover the premium that the employer paid for maintaining group health care coverage during any unpaid part of the CFRA leave if both of the following conditions occur:
(A) The employee fails to return from leave after the period of leave to which the employee is entitled has expired. An employee is deemed to have failed to return from leave if the employee works less than 30 days after returning from CFRA leave. An employee who retires during CFRA leave or during the first 30 days after returning is deemed to have returned from leave.
(B) The employee's failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to CFRA leave, or other circumstances beyond the control of the employee.
(6) Group health plan coverage must be maintained for an employee on CFRA leave until:
(A) The employee's CFRA leave entitlement is exhausted;
(B) The employer can show that the employee would have been laid off and the employment relationship terminated for lawful reasons during the period of the CFRA leave; or
(C) The employee provides unequivocal notice of intent not to return to work.
(d) Employee Payment of Group Health Benefit Premiums.
If employees are required to pay premiums for any part of their group health coverage, the employer must provide the employee with advance written notice of the terms and conditions under which premium payments must be made.
(1) If CFRA leave is paid, the employee's share of premiums must be paid by the method normally used during any paid leave, typically as a payroll deduction, unless a voluntary agreement between the employer and the employee dictates otherwise.
(2) If CFRA leave is unpaid, the employer may require that payment be made to the employer or to the insurance carrier, but no additional charge may be added to the employee's premium payment for administrative expenses. The employer may require employees to pay their share of premium payments in any of the following ways:
(A) Payment due at the same time as if made by payroll deduction;
(B) Payment due on the same schedule as payments are made under COBRA;
(C) Payment prepaid pursuant to a cafeteria plan at the employee's option;
(D) The employer's existing rules for payment by employees on leave without pay would apply, provided that such rules do not require prepayment (i.e., prior to the commencement of the leave) of the premiums that will become due during a period of unpaid CFRA leave or payment of higher premiums than if the employee had continued to work instead of taking leave; or
(E) Another system voluntarily agreed to between the employer and the employee, which may include prepayment of premiums (e.g., through increased payroll deductions when the need for the CFRA leave is foreseeable).
(3) Unless an employer policy provides a longer grace period, an employer's obligation to maintain health benefits coverage ceases under CFRA if an employee's premium payment is more than 30 days late. In order to drop coverage, an employer must provide written notice at least 15 days before coverage is to cease, advising that coverage will be dropped on a specified date at least 15 days after the date of the written notice unless payment has been received by that date.
(A) The employer may recover the employee's share of any premium payments missed by the employee for any CFRA leave period during which the employer maintains health coverage by paying the employee's share.
(B) Regardless of whether an employee pays premiums while on CFRA leave, all other obligations of an employer under CFRA would continue, such as reinstatement upon return and complete restoration of coverage/benefits equivalent to those that the employee would have had if leave had not been taken, including family or dependent coverage.
(C) If an employer terminates an employee's health benefits coverage in accordance with this section because of the employee's non-payment of premiums and fails to restore the employee's health insurance as required by this section upon the employee's return, the employer may be liable for benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable relief tailored to the harm suffered.
(e) Other Benefits and Seniority.
During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in health plans for any additional period of leave not covered by (c) above; in any 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.
(1) Unpaid CFRA leave for the serious health condition of the employee shall be compared to other unpaid disability leaves whereas unpaid CFRA leaves for all other purposes shall be compared to other unpaid personal leaves offered by the employer. CFRA leave shall not constitute a break in service or cause the employee to lose seniority, even if other paid or unpaid leave constitutes a break in service for purposes of establishing longevity or seniority, or for layoff, recall, promotion, job assignment, or seniority-related benefits.
(2) If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on CFRA leave, the employer must give written notice to the employee that the employee is subject to the new or changed plan/benefits to the same extent as if the employee were not on leave.
(f) Continuation of Other Benefits.
If the employer has no policy, practice or collective bargaining agreement that requires or authorizes any other type of unpaid personal or disability leave or if the employer's other unpaid personal or disability leaves do not allow for the continuation of benefits during these leaves, an employee taking a CFRA leave shall be entitled to continue to participate in the employer's health plans, pension and retirement plans, supplemental unemployment benefit plans or any other health and welfare employee benefit plan, in accordance with the terms of those plans, during the period of the CFRA leave.
(1) As a condition of continued coverage of group medical benefits (beyond the employer's obligation during the 12-week period described above in (c)), life insurance, short- or long-term disability plans or insurance, accident insurance, or other similar health and welfare employee benefit plans during any unpaid portion of the leave, the employer may require the employee to pay premiums at the group rate.
(A) If the employee elects not to pay premiums to continue these benefits, this nonpayment of premiums shall not constitute a break in service for purposes of longevity, seniority under any collective bargaining agreement or any employee benefit plan requiring the payment of premiums.
(2) An employer is not required to make plan payments to any pension and/or retirement plan or to count the leave period for purposes of time accrued under any such plan during any unpaid portion of the CFRA leave. The employer shall allow an employee covered by a pension and/or retirement plan to continue to make contributions, in accordance with the terms of these plans, during the unpaid portion of the leave period.
(g) Employee Status.
The employee shall retain employee status during the period of the CFRA leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, et cetera.(1. Change without regulatory effect renumbering former section 7297.5 to new section 11092 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40). 2. Amendment filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10). 3. Amendment of section heading, section and Note filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28). 4. Change without regulatory effect amending section heading, section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.) 5. Change without regulatory effect amending section heading and subsections (b)(4), (d)(1)-(2), (e) and (e)(2) filed 1-21-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 4).)
Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, 2611, 2612 and 2614; ERISA, 29 U.S.C. § 1001 et seq.; and COBRA, 29 U.S.C. § 1161 et seq.
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