The Current CFRA Statute
“During any period that an eligible employee takes leave pursuant to [CFRA]ortakes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a “group health plan,”. . . for the duration of the leave, not to exceed 12 workweeks in a 12-month period,commencing on the date leave taken under the FMLA commences. . . .” Gov. Code, § 12945.2(f)(1).
The New PDL Regulation
“Thetime that an employer maintains and pays for group health coverage during pregnancy disability leaveshall not be used to meetan 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.”Cal. CodeRegs. tit. 2, § 7291.11(c)(2).
Gov. Code, § 12945.2(f)(1).
Gov. Code, § 12945.2(f)(1).
EXAMPLE
Emily is put on bed rest 4 weeks prior to birth. She then has the baby and is on disability from the birth for 4 more weeks. She then wants to take the full 12 weeks of CFRA bonding leave.
EXAMPLE
PDL:She gets 4 months worth for pregnancy disabilities, and is using 8 weeks of that. PDL law says we have to maintain her health insurance during that time
FMLA:She gets 12 weeks worth for either the pregnancy disability or the bonding time. She uses 8 weeks for the disability and the remaining 4 during her bonding leave. We must pay for her insurance during all 12 weeks.
CFRA:We know she gets 12 weeks of leave, but how much of that time will she get her insurance paid for?Let’s look at the new regulation and the new statute.
EXAMPLE
APPLYING THE CFRA STATUTE:We pay for Emily’s insurance duringeitherFMLA leave,orCFRA for atotal of 12 weeks.Those 12 weeks commence once she starts taking her FMLA leave.Under the CFRA statute, she has exhausted her 12 weeks after she is 4 weeks into her bonding leave. At that point, pursuant to CFRA statute, we are no longer required to maintain medical insurance
EXAMPLE
APPLYING THE NEW PDL REGULATION:We cannot apply any of the time she was on PDL/FMLA leave towards the 12 weeks we must maintain medical insurance under the bonding leave.Therefore, she would get her insurance maintained during all 12 weeks of the bonding leave.
PDL Regulation vs. CFRA Statute
You cannot apply the new PDL regulation withoutexpandingthe amount of time we must maintain medical insurance under the CFRA statute
Statute vs. Regulation
What is a statute?What is a regulation?
Statute vs. Regulation
“Noregulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” Cal. Gov. Code § 11342.2
Should we follow the new Regulation?
It is a strategic decision that takes into account several factors.We think ignoring the new regulation is a legally defensible position to take.Other law firms have recognized thissame conflict
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