On September 29, 2022, Governor Gavin Newsom signed Assembly Bill 1041 into law. Beginning January 1, 2023, the definition of a “family member” under the California Family Rights Act (“CFRA”) and California’s Healthy Workplaces Healthy Families Act (“HWHFA”) is expanded to include a “designated person.”
California Family Rights Act (“CFRA”)
CFRA applies to employers with five or more employees. Under CFRA, eligible employees may take up to a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period to care for a family member such as a child, parent (including parent-in-law), spouse, registered domestic partner, grandchild, grandparent, or sibling. Under AB 1041, the list of persons whom an eligible employee may take CFRA leave to care for is amended to include a “designated person.”
Under AB 1041, a “designated person” is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The legislation does not further define “the equivalent of a family relationship.” The “designated person” may be identified at the time the employee requests the leave. The designation does not have to be in advance. An employer is authorized to limit an employee to one designated person per 12-month period. If an employer does not adopt a limitation, there is no limit to the number of individuals whom an employee may designate.
California’s Healthy Workplaces Healthy Families Act (“HWHFA”)
Currently, under HWHFA, which applies to employers of all sizes, employees can use paid sick leave for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, a family member. HWHFA defines a family member as a child, grandchild, grandparent, parent, registered domestic partner, sibling, and spouse. AB 1041 adds a “designated person” to the list of family members for whom an employee may take time off to provide care under HWHFA.
Under HWHFA, a “designated person” is defined as a person identified by the employee at the time the employee requests paid sick days. Notably, the employee and the designated person do not need to have a relationship “equivalent to that of a family relationship.” Therefore, subject to guidance from California’s Labor Commissioner, a designated person for purposes of HWHFA might possibly include a neighbor, roommate, or romantic partner.
Like CFRA, the “designated person” may be identified at the time the employee requests paid sick days. The designation does not have to be in advance. Also, as with CFRA as amended by AB 1041, an employer is authorized to limit an employee to one designated person per 12-month period for paid sick days, however, if an employer does not adopt a limitation, there is no limit to the number of individuals whom an employee may designate.
Employers should review and revise their leave policies, practices, and procedures to align with the new CFRA and HWHFA designated person standards. This will include:
- Advising employees of the expanded definition of “family members.”
- Informing employees of their obligation to identify a designated person at the time of their leave request, if not previously disclosed.
- Establishing a procedure for responding to “on the spot” designations that may accompany a leave request from an employee on or after January 1, 2023.
- Notifying employees of a 12-month limitation per designated person if such a policy is going to be implemented.