Seyfarth Synopsis: Late into the 2021-2022 legislative period, California approved a set of bills —AB 1041 and AB 1949—that expand the CFRA and the Paid Sick Leave law and provide a statutory entitlement to bereavement leave for workers in the state. The new laws leave one to wonder whether California legislators were at least partly inspired by a particular action drama.
In the television series Designated Survivor, HUD Secretary Tom Kirkman is named the designated person to take over the presidency if other members in the presidential line of succession perished all at once. After a series of unlikely incidents, this is exactly what happens. Two of California’s most recent laws seem to use this TV show for inspiration, adding leave protections to the designated and the survivor.
One of the leave bills recently signed into law, AB 1041, expands the protections of both the California Family Rights Act and California Paid Sick Leave law. Under the new enactments, employees can designate their very own Tom Kirkman. Notably, unlike in tv-land, the “designated person” is not a potential successor to the office of the President. Instead a designated person is a person in need of care for whom an employee could take leave from work.
Choosing a Designee
AB 1041 says that under CFRA, employees of businesses employing five or more people can now take protected leave to care for a designated person. A designated person for CFRA purposes is any individual related by blood or whose association with the employee is the equivalent of a family relationship (without describing what this means). This means that an employee could look beyond their own first family and select someone from their expansive cabinet, no matter how far removed they are in the line of succession, so long as they are akin to a family member.
To keep employers on their toes like a Secret Service Agent, the amendments to California’s Paid Sick Leave law define designated person differently, and more broadly. For the purpose of PSL, “family member” as used in that statute now includes a designated person who is simply a person identified by the employee at the time the employee requests paid sick days, with no need for blackmailing, espionage, or broad conspiracy to pick the new person.
Why the Plot Twist?
The writers working behind the scenes on the bill explained that AB 1041 is a recognition of chosen families—or in other words non-nuclear family structures—and an effort to empower employees to care for others regardless of blood or legal relationships. In particular, this legislation was backed by a number of minority rights and LGBTQI+ advocacy groups.
California modeled its law after similar laws in Oregon, Connecticut, New Jersey, Colorado, and municipalities like Los Angeles, that have previously passed paid leave laws covering chosen families.
A Potential for Peril as Wide as the Potomac
At the risk of giving away spoilers, we should note that AB 1041 creates new avenues of exposure. The bill allows employees to designate one new person for each twelve-month period. While employers are free to limit designated persons to just one in the period of a year, employees are entitled to select a new designated person every twelve months.
Also headline grabbing is the fact that when requesting either CFRA or paid sick leave, an employee must be allowed to designate a person at the time the request is made. Employers therefore cannot require employees to designate a person in advance.
A second leave bill that recently became law, AB 1949, focuses on the survivor. It requires any business which employs five or more persons to allow qualified employees up to five days of bereavement leave for the death of a family member. If an employee has worked thirty or more days within the last twelve months, they are eligible for this bereavement leave.
For now, the law does not explicitly require bereavement leave for the death of designated persons (as explained above), but only for a traditional family member (“a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law”).
This means that if our friend Tom Kirkman was an employee in California, the untimely expiration of all his coworkers in a catastrophic event would not entitle him to protected bereavement leave under AB 1949, tragic as this may be. Unless of course they were also his relatives.
A Move Fit for Television
AB 1949 is the result of a years-long effort to give employees an entitlement to bereavement leave, and was driven at least in part by the COVID-19 pandemic with the number of employees who lost loved ones and were not necessarily able to take time off of work. According to the bill’s authors, AB 1949 is meant to account for losses in an employee’s productivity following the death of a family member, and to allow them protected time off work to grieve.
Traps for the Unwary
As with most California employment laws, AB 1949 presents a few potential pitfalls:
- Employers must be aware that an employee is not required to take all of their bereavement leave at once. Although the employees’ days off do not have to be consecutive, employers may require this leave to take place within three months of the death of the family member.
- Although the law permits bereavement leave to be unpaid, employees must be permitted to use vacation, personal leave, accrued and available sick leave, or other available compensatory time.
- If an employer has an existing bereavement leave policy, it must nonetheless meet the requirements of the new law (i.e., provide at least five nonconsecutive days of leave time). If the employer already has some paid bereavement days (but not five), it can comply with this new law by offering the remaining days as unpaid leave, or allowing use of other paid time off.
- While the law allows employers to require “documentation” of the death of the family member, it permits a wide array of documentary evidence including death certificates, published obituary and more. Employers should therefore err on the side of caution when asking for proof before allowing bereavement leave.
- The bill only has a collective bargaining agreement carve out where the CBA provides a bereavement leave policy that is at least as generous as this new law (i.e. provides for at least five non-consecutive days off within three months).
Employers must also remember that AB 1949 prohibits employers from retaliating against an employee who requests or takes bereavement leave, and it prohibits discrimination or interference with employees seeking to exercise these new rights.
Unlike the TV show, Designated Survivor, these changes to the legal landscape will likely not disappear after three seasons. Employers should review their leave polices and revise them if necessary ahead of when the laws become effective on January 1, 2023. Feel free to designate your favorite Seyfarth attorneys to help your business survive this most recent round of regulation.
Edited by Coby Turner