The Ninth Circuit and the California legislature recently updated employer leave requirements, impacting California employers.  The Ninth Circuit recently handed down two decisions regarding leave under the Family Medical Leave Act (“FMLA”), including a decision concerning what constitutes a “workweek” for FMLA purposes.  Additionally, as of January 1, 2021, smaller employers in California will have to grant 12 weeks of leave under the California Family Rights Act (“CFRA”).  Employers should consider these changes as they update their leave policies, especially as employees may take more extended leaves during the COVID-19 pandemic.

Employee Schedules Do Not Determine What Constitutes a “Workweek”

The FMLA requires covered employers to provide “12 workweeks of leave during any 12-month period” to qualified employees when a covered family or medical need arises (such as the birth or adoption of a child, the need to care for a spouse, child or parent with a serious health condition, or the employee’s own serious health condition).  This leave can be continuous, when the employee takes all 12 workweeks off sequentially, or intermittent, when the employee takes smaller amounts of time off as necessary.

In Scalia v. State of Alaska, No. 19-35824 (9th Cir. 2021), the Ninth Circuit considered FMLA leave at an employer with two types of employee schedules.  On a “traditional” schedule, employees worked for five days, followed by two days off.  On a “rotational” schedule, employees worked seven days a week, followed by seven days off.  Both sets of employees worked 80 hours in a two-week period.  The Ninth Circuit considered if a “rotational” employee’s “off” weeks would count towards his or her FMLA allotment of 12 weeks.

The Ninth Circuit held that a “workweek” under the FMLA is the employer’s workweek and not the employee’s usual schedule.  Thus, the rotational employee’s “off” weeks counted towards his 12 weeks of FMLA leave.  The court applied the definition of “workweek” from the Fair Labor Standards Act (“FLSA”).  The FLSA states that “workweek” is a recurring period of 168 hours, not the time an employee is actually required to be at work.  Additionally, the Court noted that allowing a rotational employee to take up to 24 weeks off would be too costly for the employer and would privilege rotational employees over traditional employees who otherwise work the same amount of hours.

Accordingly, even if an employer does not use a “rotational” system, employers should use their designated workweeks (e.g. Sunday through Saturday, Monday through Sunday, or Friday through Saturday, etc.) and not the employee’s particular schedule when determining the date an employee will exhaust her or his 12 weeks of FMLA leave.

FMLA’s Definition of “Willfulness” Requires Knowledge or Reckless Disregard

The Ninth Circuit borrowed another definition from the FLSA when interpreting the statute recently.  The FMLA has two deadlines for employees to bring claims:  two years for non-willful violations and three years for willful violations.  However, the FMLA does not define when a violation is “willful.”  In Olson v. United States of America, No. 19-35389 (9th Cir. 2020), the Ninth Circuit held that a willful violation is one in which an employer “knows or shows reckless disregard for” whether its conduct was prohibited by the statute, as defined in the FLSA.  Thus, a district court properly concluded an employer had not committed a “willful” violation under the FMLA when it failed to notify an employee of her leave rights and the employee’s claim, brought more than two years after her termination, was thus barred by the statute of limitations.  However, as a matter of best practice, employers should continue to inform employees of their rights under the FMLA.

California Employers With 5 to 49 Employees Must Provide 12 Weeks of CFRA Leave

As we’ve mentioned, employers with 5 to 49 employees will see a change in their leave requirements in 2021.  On January 1, 2021, SB 1383 became effective, requiring employers with five or more employees to provide 12 weeks of leave.  Employers with 50 or more employees were already required to provide 12 weeks of leave.