AB 1033 – Expands CFRA To Protect Leave Taken To Care For A Parent-In-Law; Changes Mediation Requirements For Suits Against Certain Small Employers

Assembly Bill 1033 (AB 1033) makes various changes to the Moore-Brown-Roberti Family Rights Act, commonly known as the California Family Rights Act (CFRA), which is a part of the Fair Employment and Housing Act (FEHA).  Broadly, CFRA gives eligible employees a right to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave, including leave to care for a parent, spouse, and other listed family members.

Leave to Care for Parent-in-Law

In 2020, Senate Bill 1383 expanded the list of family members that an employee can take leave to care for.  That bill added the term “parent-in-law” to the definition section of the CFRA, but omitted parents-in-law from the actual, substantive list of covered family members.  That omission left employers uncertain about whether they are required to provide employees time off under the CFRA to provide care for a parent-in-law.  AB 1033 now clarifies that employees can take protected leave to care for a parent-in-law.

Changes to Small Employer Family Leave Mediation Program

AB 1033 amends certain provisions regarding the small employer family leave mediation pilot program established in 2020’s Assembly Bill 1867, which requires mediation through the California Department of Fair Employment and Housing (DFEH) before an employee can sue certain small employers with between 5 and 19 employees for alleged violations of the CFRA.

The current process allows a covered small employer or the employee to request mediation after the DFEH issues a right to sue letter.  If an employer or employee requests mediation, the employee is prohibited from pursuing a civil action until the mediation is complete.  In exchange, the employee’s statute of limitations on claims is tolled until the mediation is complete.

AB 1033 revises several procedural aspects of the pilot program, including the following:

1. When an employee requests an immediate right to sue letter for a CFRA claim, the DFEH must notify the employee in writing that if either party requests mediation, mediation must be completed prior to filing suit.
2. The employee must contact the DFEH’s dispute resolution division prior to filing a lawsuit and to indicate whether they are requesting mediation.
3. If DFEH receives a request to mediate from either party within 30 days, it shall initiate the mediation within 60 days of DFEH’s receipt of the request or the receipt of the notification by all named respondents, whichever is later.
4. Once mediation has been initiated, the mediator must notify the employee no later than 7 days before mediation of certain statutory rights to request certain employment-related information, and must help facilitate other reasonable requests for information.

In addition, if a covered small employer does not receive the required mediation notification due to the employee’s failure to contact the DFEH prior to filing suit, AB 1033 provides that the employer is entitled, on request, to a stay of any pending civil action or arbitration until the mediation is complete or deemed unsuccessful.

AB 1033 does not amend the existing sunset date for the mediation pilot program, which will expire automatically on January 1, 2024.

(AB 1033 amends Section 12945.2 and 12945.21 of the Government Code.)