SB 406: Employment: leave.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-09-16
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave for reason of the serious health condition of a child, and leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The bill would redefine the term child to include a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines employer to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave for reason of the serious health condition of a child, and leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would restrict that small business exemption to an employer that employs fewer than 25 employees within 75 miles of the worksite where the employee is employed.
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This bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer to include any person who directly employs 25 or more persons to perform services for a wage or salary. The bill would redefine the term child to include a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines employer to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would restrict that small business exemption to an employer that employs fewer than 25 employees within 75 miles of the worksite where the employee is employed.
The bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer to include any person who directly employs 25 or more persons to perform services for a wage or salary. The bill would redefine the term child to include a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines employer to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would restrict that small business exemption to an employer that employs fewer than 25 employees within 75 miles of the worksite where the employee is employed.
The bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer to include any person who directly employs 5 25 or more persons to perform services for a wage or salary. The bill would redefine the term child to include a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines employer to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would restrict that small business exemption to an employer that employs fewer than 5 25 employees within 75 miles of the worksite where the employee is employed.
The bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer employer to include any person who directly employs 5 or more persons to perform services for a wage or salary. The bill would redefine the term child to include a child of a domestic partner, biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employees parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in the act.
The act defines employer to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines child to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or an adult dependent child. The act defines family care and medical leave to mean, among other things, leave to care for a parent or a spouse who has a serious health condition. The act defines parent to mean a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
This bill would restrict that small business exemption to an employer that employs fewer than 5 employees within 75 miles of the worksite where the employee is employed.
The bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer to include any person who directly employs 5 or more persons to perform services for a wage or salary. The bill would redefine the term child to include a child of a domestic partner, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of parent.
(a)Except as provided in subdivision (b), it is an unlawful employment practice for an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs fewer than 50 employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis.
(2)Employer means either of the following:
(A)Any person who directly employs 50 or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
(B)Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)(A)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer at his or her discretion, may require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
(B)For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(s)It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(a)Except as provided in subdivision (b), it is an unlawful employment practice for an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs fewer than 25 50 employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis.
(2)Employer means either of the following:
(A)Any person who directly employs 25 50 or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
(B)Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)(A)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer at his or her discretion, may require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
(B)For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(s)It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(a)Except as provided in subdivision (b), it is an unlawful employment practice for an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs fewer than 25 employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis.
(2)Employer means either of the following:
(A)Any person who directly employs 25 or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
(B)Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)(A)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, may require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
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(B)For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(s)It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(a)Except as provided in subdivision (b), it is an unlawful employment practice for an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs fewer than 25 employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis.
(2)Employer means either of the following:
(A)Any person who directly employs five 25 or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
(B)Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(s)It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(a)Except as provided in subdivision (b), it is an unlawful employment practice for an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs fewer than five 25 employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis.
(2)Employer means either of the following:
(A)Any person who directly employs five or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
(B)Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (P.L. (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(s)It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(a)Except as provided in subdivision (b), it shall be is an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), an employer to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b)Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less fewer than 50 five employees within 75 miles of the worksite where that employee is employed.
(c)For purposes of this section:
(1)Child means a biological, adopted, or foster child, son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a child of a person standing in loco parentis who is either of the following: person to whom the employee stands in loco parentis.
(A)Under 18 years of age.
(B)An adult dependent child.
(2)Employer means either of the following:
(A)Any person who directly employs 50 five or more persons to perform services for a wage or salary.
(B)The state, and any political or civil subdivision of the state and cities.
(3)Family care and medical leave means any of the following:
(A)Leave for reason of the birth of a child of the employee, employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of a child of the employee.
(B)Leave to care for a parent or a spouse child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
(C)Leave because of an employees own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
(4)Employment in the same or a comparable position means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5)FMLA means the federal Family and Medical Leave Act of 1993 (P.L. 103-3). (P.L. 103-3; 29 U.S.C. Sec. 2601 et seq.).
(6)Health care provider means any of the following:
(A)An individual holding either a physicians and surgeons certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physicians and surgeons certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B)Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
(7)Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(8)Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A)Inpatient care in a hospital, hospice, or residential health care facility.
(B)Continuing treatment or continuing supervision by a health care provider.
(d)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e)An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employees accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employees own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f)(1)During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code, 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, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a group health plan beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B)The employees failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2)Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan.
For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
(g)During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(h)If the employees need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i)If the employees need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j)(1)An employer may require that an employees request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D)A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2)Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k)(1)An employer may require that an employees request for leave because of the employees own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following:
(A)The date on which the serious health condition commenced.
(B)The probable duration of the condition.
(C)A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.
(2)The employer may require that the employee obtain subsequent recertification regarding the employees serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(3)(A)In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employers expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1).
(B)The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer.
(C)In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employers expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1).
(D)The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee.
(4)As a condition of an employees return from leave taken because of the employees own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee.
(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
(1)An individuals exercise of the right to family care and medical leave provided by subdivision (a).
(2)An individuals giving information or testimony as to his or her own family care and medical leave, or another persons family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.
(m)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n)The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until February 5, 1994, whichever occurs first.
(o)This section shall be construed as separate and distinct from Section 12945.
(p)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(q)In any case in which both parents entitled to leave under subdivision (a) are employed by the same employer, the employer shall not be required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in subdivision (a).
(r)
(q)(1)Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A)The employee is a salaried employee who is among the highest paid 10 percent of the employers employees who are employed within 75 miles of the worksite at which that employee is employed.
(B)The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C)The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2)In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
(s)
(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.
(t)
(s)It shall be is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
|
Date
|
Status
|
|---|---|
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 23. Noes 16.) Ordered to engrossing and enrolling. |
| Jun 25, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (June 24). Re-referred to Com. on APPR. |
| Aug 19, 2015 | August 19 set for first hearing. Placed on APPR. suspense file. |
| Sep 1, 2015 | From committee: Do pass as amended. (Ayes 12. Noes 5.) (August 27). |
| Sep 2, 2015 | Read second time and amended. Ordered to second reading. |
| Sep 3, 2015 | Read second time. Ordered to third reading. |
| Sep 4, 2015 | Ordered to third reading. |
| Sep 4, 2015 | Read third time and amended. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 23. Noes 16. Page 2775.) Ordered to engrossing and enrolling. |
| Jun 18, 2015 | Referred to Com. on L. & E. |
| Sep 11, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 11, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 11, 2015 | Read third time. Passed. (Ayes 41. Noes 30. Page 3186.) Ordered to the Senate. |
| Sep 17, 2015 | Enrolled and presented to the Governor at 4:45 p.m. |
| Oct 11, 2015 | In Senate. Consideration of Governor's veto pending. |
| Oct 11, 2015 | Vetoed by the Governor. |
| Apr 25, 2016 | Last day to consider Governors veto pursuant to Joint Rule 58.5. |
| Apr 25, 2016 | Last day to consider Governor’s veto pursuant to Joint Rule 58.5. |
| May 28, 2015 | From committee: Do pass. (Ayes 5. Noes 2. Page 1153.) (May 28). |
| Feb 26, 2015 | From printer. May be acted upon on or after March 28. |
| Mar 5, 2015 | Referred to Com. on L. & I.R. |
| Mar 27, 2015 | Set for hearing April 22. |
| Apr 22, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 4. Noes 1. Page 728.) (April 22). |
| Apr 23, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| May 1, 2015 | Set for hearing May 11. |
| May 11, 2015 | May 11 hearing: Placed on APPR. suspense file. |
| May 23, 2015 | Set for hearing May 28. |
| Feb 25, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 28, 2015 | From committee: Do pass. (Ayes 5. Noes 2.) (May 28). |
| May 28, 2015 | Read second time. Ordered to third reading. |
| Jun 1, 2015 | Ordered to second reading. |
| Jun 1, 2015 | Read third time and amended. |
| Jun 2, 2015 | Read second time. Ordered to third reading. |
| Jun 4, 2015 | In Assembly. Read first time. Held at Desk. |
| Jun 4, 2015 | Read third time. Passed. (Ayes 23. Noes 16. Page 1327.) Ordered to the Assembly. |
| Jun 4, 2015 | Read third time. Passed. (Ayes 23. Noes 16.) Ordered to the Assembly. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | Unfinished Business (Supplemental File 5) SB406 Jackson Concurrence | Senate Floor |
Passed |
|
| Sep 11, 2015 | SB 406 Jackson Senate Third Reading By GOMEZ | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 24, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Labor and Employment |
Passed |
|
| Jun 4, 2015 | Senate 3rd Reading SB406 Jackson | Senate Floor |
Passed |
|
| May 28, 2015 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| May 11, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 22, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Labor and Industrial Relations |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 9to5 | ** Support | Sep 11, 2015 |
| 9to5 CA Chapter | ** Support | Jun 24, 2015 |
| 9to5 National | ** Support | Jun 24, 2015 |
| AAUW | * Indeterminate | Jun 24, 2015 |
| Air Conditioning Trade Association | ** Against | Sep 11, 2015 |
| Alhambra Chamber of Commerce | ** Against | Jun 24, 2015 |
| Alzheimer's Association | ** Support | Sep 11, 2015 |
| American Association of Retired Persons | ** Support | Sep 11, 2015 |
| American Civil Liberties Union of California | * Indeterminate | Jun 24, 2015 |
| Associated Builders And Contractors Of California | ** Against | Sep 11, 2015 |
| Associated General Contractors | ** Against | Sep 11, 2015 |
| Association of American University Women | ** Support | Sep 11, 2015 |
| Association of Caregiver Resource Centers | ** Support | Sep 11, 2015 |
| Association of Women's Health, Obstetrics, and Neonatal Nurses | ** Support | Sep 11, 2015 |
| Breastfeeding Coalition for Ventura County | ** Support | Sep 11, 2015 |
| BreastfeedLA | ** Support | Sep 11, 2015 |
| California Alliance For Retired Americans | ** Support | Sep 11, 2015 |
| California Ambulance Association | ** Against | Jun 24, 2015 |
| California Association For Health Services At Home | ** Against | Sep 11, 2015 |
| California Black Health Network | ** Support | Sep 11, 2015 |
| California Chamber Of Commerce | ** Against | Sep 11, 2015 |
| California Cotton Ginners Association | ** Against | Sep 11, 2015 |
| California Cotton Growers Association | ** Against | Sep 11, 2015 |
| California Dairies | ** Against | Sep 11, 2015 |
| California Delivery Association | ** Against | Jun 24, 2015 |
| California Employment Lawyers Association | ** Support | Sep 11, 2015 |
| California Farm Bureau Federation | ** Against | Sep 11, 2015 |
| California Fresh Fruit Association | ** Against | Sep 11, 2015 |
| California Grocers Association | ** Against | Sep 11, 2015 |
| California Immigrant Policy Center | ** Support | Sep 11, 2015 |
| California Labor Federation, Afl-Cio | * Support | Jun 24, 2015 |
| California Labor of Federation | * Indeterminate | Jun 24, 2015 |
| California Landscape Contractor'S Association | ** Against | Sep 11, 2015 |
| California League of Food Processors | ** Against | Sep 11, 2015 |
| California Manufacturers And Technology Association | ** Against | Sep 11, 2015 |
| California Nurses Association | ** Support | Sep 11, 2015 |
| California Pool & Spa Association | ** Against | Sep 11, 2015 |
| California Professional Associations of Specialty Contractors | ** Against | Sep 11, 2015 |
| California Restaurant Association | ** Against | Sep 11, 2015 |
| California Rural Legal Assistance Foundation, Inc. | ** Support | Sep 11, 2015 |
| California School Employees Association | ** Support | Sep 11, 2015 |
| California State Association Of Counties | ** Against | Sep 11, 2015 |
| California Teachers Association | ** Support | Sep 11, 2015 |
| California Trucking Association | ** Against | Sep 11, 2015 |
| California Women's Law Center | ** Support | Sep 11, 2015 |
| California Work & Family Coalition | ** Support | Sep 11, 2015 |
| Center for Law and Social Policy | ** Support | Sep 11, 2015 |
| Central Coast Alliance United for a Sustainable Economy | ** Support | Jun 24, 2015 |
| Child Care Law Center | ** Support | Sep 11, 2015 |
| Civil Justice Association Of California | * Indeterminate | Jun 24, 2015 |
| Claremont Chamber of Commerce | ** Against | Sep 11, 2015 |
| Communications Workers of America 9003 | ** Support | Sep 11, 2015 |
| Communications Workers of America District 9 | ** Support | Sep 11, 2015 |
| Congress of California Seniors | ** Support | Sep 11, 2015 |
| Disability Rights California | ** Support | Sep 11, 2015 |
| Equal Rights Advocates | ** Support | Sep 11, 2015 |
| Family Business Association of California | * Against | May 11, 2015 |
| Family Caregiver Alliance | ** Support | May 11, 2015 |
| Family Caregiving Alliance | ** Support | Sep 11, 2015 |
| Far West Equipment Dealers Association | ** Against | Sep 11, 2015 |
| Forward Together | ** Support | Sep 11, 2015 |
| Greater Bakersfield Chamber of Commerce | ** Against | Sep 11, 2015 |
| Independent Living Resource Center | ** Support | Sep 11, 2015 |
| Jodi House | ** Support | May 11, 2015 |
| Jodi House of Santa Barbara | ** Support | Sep 11, 2015 |
| Latino Coalition for a Healthy California | ** Support | Jun 24, 2015 |
| Legal Aid Society - Employment Law Center | ** Support | Sep 11, 2015 |
| Los Angeles Alliance for a New Economy | ** Support | Sep 11, 2015 |
| National Association of Social Workers | ** Support | Sep 11, 2015 |
| National Association of Social Workers, CA | ** Support | Jun 24, 2015 |
| National Council of Jewish Women | ** Support | Sep 11, 2015 |
| National Federation Of Independent Business | ** Against | Sep 11, 2015 |
| National Nurses United | ** Support | Sep 11, 2015 |
| National Partnership for Women & Families | ** Support | Sep 11, 2015 |
| Nisei Farmers League | ** Against | Sep 11, 2015 |
| Organization Of Smud Employees | ** Support | Sep 11, 2015 |
| Plumbing-Heating-Cooling Contractors Association of California | ** Against | Sep 11, 2015 |
| Restaurant Opportunities Center of Los Angeles | ** Support | Sep 11, 2015 |
| San Bernardino Public Employees Association | ** Support | Sep 11, 2015 |
| San Diego County Court Employees Association | ** Support | Sep 11, 2015 |
| San Francisco Breastfeeding Promotion Coalition | ** Support | Sep 11, 2015 |
| San Luis Obispo County Employees Association | ** Support | Sep 11, 2015 |
| Service Employees International Union, AFL-CIO | ** Support | May 11, 2015 |
| Society For Human Resource Management | ** Against | Sep 11, 2015 |
| Southwest California Legislative Council | ** Against | Sep 11, 2015 |
| Teamsters Local Union No. 986 | ** Support | Sep 11, 2015 |
| The Alliance of California for Community Empowerment | ** Support | Sep 11, 2015 |
| The Arc and United Cerebral Palsy California Collaboration | ** Support | Sep 11, 2015 |
| The Center for WorkLife Law | ** Support | May 11, 2015 |
| UC Hastings Center for WorkLife Law | ** Support | Sep 11, 2015 |
| United Cerebral Palsy California Coalition | * Support | May 11, 2015 |
| Western Agricultural Processors Association | ** Against | May 11, 2015 |
| Western Center On Law And Poverty Inc. | ** Support | Sep 11, 2015 |
| Western Electrical Contractors Association | ** Against | May 11, 2015 |
| Western Growers Association | ** Against | May 11, 2015 |
| Western Regional Advocacy Project | ** Support | Sep 11, 2015 |
SB 406
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
SB 406 |
VETO
Bill No: SB 406
Amended: 9/4/15
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/22/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 23-16, 6/4/15
AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak
NO VOTE RECORDED: Hueso
SENATE FLOOR: 23-16, 9/11/15
AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Monning, Pan, Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak
NO VOTE RECORDED: Mitchell
ASSEMBLY FLOOR: 41-30, 9/11/15 - See last page for vote
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
Legal Aid Society – Employment Law Center
DIGEST: This bill expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act (CFRA).
ANALYSIS: Existing federal law, under the Family and Medical
Leave Act (FMLA) entitles eligible employees to take unpaid,
job-protected leave for up to 12 weeks in a 12-month period for: the
birth of a child and to care for the newborn child within one year,
to care for the employee’s spouse, child, or parent who has a
serious health condition, or a serious health condition that makes
the employee unable to perform the essential functions or his or her
job. This leave, granted under both the state CFRA and the federal
FMLA must be taken concurrently. (§105 of the FMLA and §825.220 of
FMLA regulations)
Existing state law, under CFRA:
Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.
Allows eligible employees to take 12 workweeks of leave in a 12-month period for: bonding with a newborn or adopted child, caring for a family member with a serious health condition (includes parent, spouse, and child), and the employee’s own serious health condition (excluding pregnancy).
States that eligible employees must meet the following conditions:
Worked more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period.
Worked at a location in which the employer has at least 50 employees within 75 miles of the employee’s worksite.
Guaranteed reinstatement to the same or comparable position after taking family leave under CFRA and FMLA.
Provides the following definitions family members and serious health condition:
Child: a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child.
Parent: the employee’s biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Serious health condition: an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a healthcare provider.
Requires that an employee provide the employer with reasonable advance notice of the need for the leave, if foreseeable, and authorizes the employer to require certification by a health care provider for leave requests due to serious health conditions.
States that when both parents are entitled to family and medical leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, the employer is not required to grant both parents leave totaling more than 12 weeks.
Existing law establishes a family temporary disability insurance program, Paid Family Leave (PFL) that provides up to six weeks of wage replacement benefits to workers who take time off work to care for: a seriously ill child, spouse, parent, or domestic partner, siblings, grandparents, grandchildren, and parents-in-laws or to bond with a minor child in connection with foster care or adoption. (Unemployment Insurance Code §3301)
This bill expands the family members covered in CFRA including:
“Child” to include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child.
Expands permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, domestic partner, or parent-in-law with a serious health condition.
Allows parents, when employed by the same employer, to be granted up to 12 weeks of leave individually rather than between both parents, removing an exception currently in existing law.
Comments
According to the author’s office, SB 406 ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for CFRA due to the law’s eligibility requirements, which means they are cannot take job-protected, paid leave through the PFL program.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for PFL, a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. SB 406 seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill also allows for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, Department of Fair Employment and Housing (DFEH) will incur increased General Fund costs of about $686,000 annually to implement the provisions of this bill. DFEH will require an augmentation of six positions and $686,000 to handle an assumed increased in CFRA complaints of about 24% created by the expansion of CFRA rights. DFEH will not receive any additional federal funds; its work share agreement with the Equal Employment Opportunity Commission excludes CFRA complaints.
According to the Assembly Appropriations Committee, this bill would result in General Fund administrative costs to the DFEH of approximately $700,000. The impact to other state agencies is expected to be minimal since the state generally provides this benefit already.
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
Legal Aid Society – Employment Law Center (co-source)
9to5
Alzheimer’s Association
American Association of Retired Persons
Association of American University Women
Association of Caregiver Resource Centers
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
California Work & Family Coalition
Center for Law and Social Policy
Child Care Law Center
Coalition of California Welfare Rights Organizations, Inc.
Communications Workers of America 9003
Communications Workers of America District 9
Congress of California Seniors
Disability Rights California
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Los Angeles Alliance for a New Economy
National Association of Social Workers
National Council of Jewish Women
National Partnership for Women & Families
Organization of SMUD Employees
Planned Parenthood Action Fund of Santa Barbara, Ventura & San Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Francisco Breastfeeding Promotion Coalition
San Luis Obispo County Employees Association
SEIU California
Teamsters Local Union No. 986
The Alliance of California for Community Empowerment
The Arc and United Cerebral Palsy California Collaboration
The Women’s Foundation of California
UC Hastings Center for WorkLife Law
Western Center on Law and Poverty
Western Regional Advocacy Project
OPPOSITION: (Verified 9/11/15)
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Fresh Fruit Association
California Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
Far West Equipment Dealers Association
Greater Bakersfield Chamber of Commerce
National Federation of Independent Business
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
Southwest California Legislative Council
The Alliance
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
Western Plant Health Association
ARGUMENTS IN SUPPORT: According to supporters, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Supporters bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law. Proponents contend that SB 406 will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL so that more workers are covered.
Supporters argue that most leave taken under the CFRA is short, minimizing the impact on employers. They state that nearly half of all leave taken is for 10 days or less.
ARGUMENTS IN OPPOSITION: A coalition of employers, including the California Chamber of Commerce, opposes this bill and argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents also argue that California already has extensive family-related protected leaves of absence and that this bill is therefore unnecessary. Opponents argue that as these family members in SB 406 are not covered under the FMLA, this bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under SB 406 an employee could utilize his or her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his or her spouse, child or parent.
GOVERNOR'S VETO MESSAGE:
I am returning Senate Bill 406 without my signature.
This bill expands the circumstances under which a qualified employee may take up to 12 weeks of unpaid leave under the California Family Rights Act.
I support the author's efforts to ensure that eligible workers can take leave to care for a seriously ill family member. The expansion provided in this bill, however, creates a disparity between California's law and the Federal Medical Leave Act and, in certain circumstances, could require employers to provide employees up to 24 weeks of family leave in a 12 month period. I am open to legislation to allow workers to take leave for additional family members that does not create this anomaly.
ASSEMBLY FLOOR: 41-30, 9/11/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Dababneh, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin, Nazarian, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Dodd, Frazier, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Medina, Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Cooper, Daly, Hadley, O'Donnell, Olsen, Perea, Quirk, Williams, Wood
Prepared by: Deanna Ping / L. & I.R. / (916) 651-1556
11/4/15 13:34:13
**** END ****
SB 406
Page 7
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 406
Amended: 9/4/15
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/22/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 23-16, 6/4/15
AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak
NO VOTE RECORDED: Hueso
ASSEMBLY FLOOR: Not available
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
Legal Aid Society – Employment Law Center
DIGEST: This bill expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act (CFRA)
Assembly Amendments puts the employee threshold back to existing law at 50 employees at a worksite for an employee to qualify for CFRA.
ANALYSIS: Existing federal law, under the Family and Medical Leave Act (FMLA) entitles eligible employees to take unpaid, job-protected leave for up to 12 weeks in a 12-month period for: the birth of a child and to care for the newborn child within one year, to care for the employee’s spouse, child, or parent who has a serious health condition, or a serious health condition that makes the employee unable to perform the essential functions or his or her job. This leave, granted under both the state California Family Rights Act (CFRA) and the federal FMLA must be taken concurrently. (§105 of the FMLA and §825.220 of FMLA regulations)
Existing state law, under CFRA:
Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.
Allows eligible employees to take 12 workweeks of leave in a 12-month period for: bonding with a newborn or adopted child, caring for a family member with a serious health condition (includes parent, spouse, and child), and the employee’s own serious health condition (excluding pregnancy).
States that eligible employees must meet the following conditions:
Worked more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12 month period.
Worked at a location in which the employer has at least 50 employees within 75 miles of the employee’s worksite.
Guaranteed reinstatement to the same or comparable position after taking family leave under CFRA and FMLA.
Provides the following definitions family members and serious health condition:
Child: a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child.
Parent: the employee’s biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Serious health condition: an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a healthcare provider.
Requires that an employee provide the employer with reasonable advance notice of the need for the leave, if foreseeable, and authorizes the employer to require certification by a health care provider for leave requests due to serious health conditions.
States that when both parents are entitled to family and medical leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, the employer is not required to grant both parents leave totaling more than 12 weeks.
Existing law establishes a family temporary disability insurance program, Paid Family Leave (PFL) that provides up to six weeks of wage replacement benefits to workers who take time off work to care for: a seriously ill child, spouse, parent, or domestic partner, siblings, grandparents, grandchildren, and parents-in-laws or to bond with a minor child in connection with foster care or adoption. (Unemployment Insurance Code §3301)
This bill expands the family members covered in CFRA including:
“Child” to include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child.
Expands permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, domestic partner, or parent-in-law with a serious health condition.
Allows parents, when employed by the same employer, to be granted up to 12 weeks of leave individually rather than between both parents, removing an exception currently in existing law.
Comments
According to the author’s office, SB 406 ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for California Family Rights Act due to the law’s eligibility requirements, which means they are cannot take job-protected, paid leave through the Paid Family Leave program.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave, a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. SB 406 seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, DFEH will
incur increased General Fund costs of about $686,000 annually to
implement the provisions of this bill. DFEH will require an
augmentation of six positions and $686,000 to handle an assumed
increased in CFRA complaints of about 24% created by the expansion of
CFRA rights. DFEH will not receive any additional federal funds; its
work share agreement with the Equal Employment Opportunity Commission
excludes CFRA complaints.
According to the Assembly Appropriations Committee, this bill would result in General Fund administrative costs to the Department of Fair Employment and Housing of approximately $700,000. The impact to other state agencies is expected to be minimal since the state generally provides this benefit already.
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
Legal Aid Society – Employment Law Center (co-source)
9to5
Alzheimer’s Association
American Association of Retired Persons
Association of American University Women
Association of Caregiver Resource Centers
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
California Work & Family Coalition
Center for Law and Social Policy
Child Care Law Center
Coalition of California Welfare Rights Organizations, Inc.
Communications Workers of America 9003
Communications Workers of America District 9
Congress of California Seniors
Disability Rights California
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Los Angeles Alliance for a New Economy
Los Angeles Alliance for a New Economy
National Association of Social Workers
National Council of Jewish Women
National Partnership for Women & Families
Organization of SMUD Employees
Planned Parenthood Action Fund of Santa Barbara, Ventura & San Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Francisco Breastfeeding Promotion Coalition
San Luis Obispo County Employees Association
SEIU California
Teamsters Local Union No. 986
The Alliance of California for Community Empowerment
The Arc and United Cerebral Palsy California Collaboration
The Women’s Foundation of California
UC Hastings Center for WorkLife Law
Western Center on Law and Poverty
Western Regional Advocacy Project
OPPOSITION: (Verified 9/11/2015)
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Fresh Fruit Association
California Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
Far West Equipment Dealers Association
Greater Bakersfield Chamber of Commerce
National Federation of Independent Business
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
Southwest California Legislative Council
The Alliance
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
Western Plant Health Association
ARGUMENTS IN SUPPORT: According to supporters, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Supporters bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law. Proponents contend that SB 406 will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL so that more workers are covered.
Supporters
argue that most leave taken under the CFRA is short, minimizing the
impact on employers. They state that nearly half of all leave taken
is for 10 days or less.
ARGUMENTS IN OPPOSITION: A coalition of employers, including the California Chamber of Commerce, opposes this bill and argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents also argue that California already has extensive family-related protected leaves of absence and that this bill is therefore unnecessary. Opponents argue that as these family members in SB 406 are not covered under the FMLA, this bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under SB 406 an employee could utilize his or her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his or her spouse, child or parent.
Prepared by: Deanna Ping / L. & I.R. / (916) 651-1556
9/11/15 21:05:21
SB 406
Page 2
SENATE THIRD READING
SB 406
(Jackson)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 23-16
Committee |
Votes |
Ayes |
Noes |
Labor |
5-2 |
Roger Hernández, Chu, Low, McCarty, Thurmond |
Harper, Patterson |
Appropriations |
12-5 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
Bigelow, Chang, Gallagher, Jones, Wagner |
SUMMARY: Expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act (CFRA). Specifically, this bill:
Amends the definition of "child" to include the son or daughter of a domestic partner and deletes provisions regarding the age and dependent status of a child.
Expands permissible leave to include leave to care for a sibling, grandparent, grandchild, parent-in-law, or domestic partner with a serious health condition.
Removes an exception when both parents are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents, as currently in existing law.
Makes related and conforming changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill would result in General Fund administrative costs to the Department of Fair Employment and Housing of approximately $700,000. The impact to other state agencies is expected to be minimal since the state generally provides this benefit already.
COMMENTS: According to the author, this bill ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for California Family Rights Act due to the law's eligibility.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave (PFL), a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. This bill seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
According to supporters, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Supporters bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law.
Supporters argue that most leave taken under the CFRA is short, minimizing the impact on employers. They state that nearly half of all leave taken is for 10 days or less.
A coalition of employers, including the California Chamber of Commerce, opposes this bill and argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents also argue that California already has extensive family-related protected leaves of absence and that this bill is therefore unnecessary.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0002113
SB 406
Page 2
SENATE THIRD READING
SB 406
(Jackson)
As Amended September 1, 2015
Majority vote
SENATE VOTE: 23-16
Committee |
Votes |
Ayes |
Noes |
Labor |
5-2 |
Roger Hernández, Chu, Low, McCarty, Thurmond |
Harper, Patterson |
Appropriations |
12-5 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
Bigelow, Chang, Gallagher, Jones, Wagner |
SUMMARY: Expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act (CFRA). Specifically, this bill:
Provides that the law applies to any person who directly employs 25 or more employees (compared with 50 or more employees under existing law).
Amends the definition of "child" to include the son or daughter of a domestic partner and deletes provisions regarding the age and dependent status of a child.
Expands permissible leave to include leave to care for a sibling, grandparent, grandchild, parent-in-law, or domestic partner with a serious health condition.
Removes an exception when both parents are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents, as currently in existing law.
Makes related and conforming changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill would result in General Fund administrative costs to the Department of Fair Employment and Housing of approximately $700,000. The impact to other state agencies is expected to be minimal since the state generally provides this benefit already.
COMMENTS: According to the author, this bill ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for California Family Rights Act due to the law's eligibility.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave (PFL), a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. This bill seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
According to supporters, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Supporters bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law.
Supporters argue that most leave taken under the CFRA is short, minimizing the impact on employers. They state that nearly half of all leave taken is for 10 days or less. Moreover, they cite data from the Employment Development Department (EDD) that expanding this bill to cover employers with 25 or more employees will impact less than 6% of businesses in California.
A coalition of employers, including the California Chamber of Commerce, opposes this bill and argues that it will overwhelm small businesses by mandating businesses with 25 or more employees to provide a 12-week protected leave of absence. Opponents contend that this will put a greater burden on both small and large businesses while creating an even further disconnect from federal law. Additionally, opponents argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents also argue that California already has extensive family-related protected leaves of absence and that this bill is therefore unnecessary.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0001630
Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 406
(Jackson) – As Amended June 1, 2015
Policy Committee: |
Labor and Employment |
Vote: |
5 - 2 |
|
|
|
|
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill expands unpaid family and medical leave provided under the California Family Rights Act (CFRA). Specifically, this bill:
Provides that the CFRA law applies to any person who directly employs 25 or more employees. (Existing law applies to employers with 50 or more employees).
Amends the definition of "child" to include the son or daughter of a domestic partner and deletes provisions regarding the age and dependent status of a child.
Expands permissible leave to include leave to care for a sibling, grandparent, grandchild, parent-in-law, or domestic partner with a serious health condition.
Removes an exception when both parents are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents, as currently provided in existing law.
FISCAL EFFECT:
General Fund administrative costs to the Department of Fair Employment and Housing (DFEH) of approximately $700,000, for seven additional positions to process an estimated 500 to 700 additional CFRA complaints.
The impact to other state agencies is expected to be minimal since the state generally provides this benefit already. The Department of Developmental Services (DDS) notes the bill could have an impact on providers who would likely ask for unanticipated rate adjustments as a result of the bill. DDS indicates they would likely grant the request, assuming the providers can document the bill’s impact to their costs. These costs are difficult to predict however, as it is no known how many providers would take advantage of the expanded leave.
COMMENTS:
Background. The Family and Medical Leave Act (FMLA) is the federal law that provides up to 12 weeks of unpaid leave to covered employees. The FMLA covers all public-sector workers and private sector workers who work for employers with 50 or more employees on the payroll or within 75 miles of the worksite. In addition, employees must work for at least 12 months and worked 1,250 hours or more for the same employer in the year preceding the leave. CFRA is the state law version of the federal FMLA, and is enforced by the DFEH.
Under current law, CFRA allows an employee who has worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for their own serious medical condition, for the birth or adoption of a child, or to care for the serious medical condition of a child (under 18 years of age or adult dependent), spouse or parent. The current definition of a “parent” includes step-parents, as well as those individuals who stand in place of a parent to the child.
Purpose. According to the author, over 40 percent of the workforce is not eligible for CFRA and the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave (PFL), a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. This bill seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits.
Supporters contend a worker should not have to choose between caring for their family and keeping his or her job. Yet that is the choice many must face without job protected family leave. According to a 2011 study, among those who were aware of PFL and needed leave but did not apply for benefits, 37 percent said they did not apply because they feared they would be fired or face other negative consequences at work. An expansion of CFRA ensures that more employees will be able to use their PFL benefits without fear of losing their job.
DFEH impact. Increased protections under this bill could lead to discrimination and increased workload to DFEH to process complaints.
According to 2014 data from the California Employment Development Department, there are just over 9.4 million employees working at businesses covered by CFRA. DFEH estimates this bill will expand CFRA to approximately 1,763,000 employees not covered under current law.
In 2014, the DFEH received 3,913 CFRA complaints, of which, 2,000 were taken in for investigation. Assuming similar complaint patterns, DFEH estimates the new law could generate approximately 380 additional complaints.
The bill also extends coverage to children of domestic partners and expands the law to allow employees to leave work for care of a grandparent, grandchild, sibling or domestic partner who has a serious health condition. These expanded categories could lead to an additional 130 to 330 complaints annually.
Opposition. A coalition of employers, including the California Chamber of Commerce, are concerned this bill will place an undue burden on businesses who will have to train and hire temporary employees to cover workload, pay an existing employee a higher wage to take on more work, or suffer decreased productivity until the existing employee returns from leave.
Opponents also argue that California already has extensive family-related protected leaves of absence including the following: Paid Sick Leave (applicable to all employers and includes employee and family members); Kin Care (applicable to all employers and allows employees to use half of paid time off for family members’ illnesses); California Family Rights Act (applicable to employees with 50 or more employees and provides 12-week leave of absence for employee’s medical condition, family members medical condition, or to bond with new child); Pregnancy Disability Leave (applicable to employers with 5 or more employees and provides 4 months of protected leave that is in addition to CFRA’s 12 weeks); School Activities Leave (applicable to employers with 25 or more employees for 40 hours per year to attend school related activities of a child). They contend that imposing another 12 week leave of absence on employers with only 25 employees is too much for many of these small employers to manage.
Prior legislation. SB 770 (Jackson), Chapter 350, Statutes of 2013 expanded the definition of family to include in-laws, siblings and grandparents.
Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081
SB 406
Page 7
Date of Hearing: June 24, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB 406
(Jackson) – As Amended June 1, 2015
SENATE VOTE: 23-16
SUBJECT: Employment: leave.
SUMMARY: Expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act. Specifically, this bill:
Provides that the law applies to any person who directly employs 25 or more employees (compared with 50 or more employees under existing law).
Amends the definition of "child" to include the son or daughter of a domestic partner and deletes provisions regarding the age and dependent status of a child.
Expands permissible leave to include leave to care for a sibling, grandparent, grandchild, parent-in-law, or domestic partner with a serious health condition.
Removes an exception when both parents are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents, as currently in existing law.
Makes related and conforming changes.
EXISTING LAW:
Establishes the California Family Rights Act (CFRA), also known as the Moore-Brown-Roberti Family Rights Act.
Requires employers with 50 or more employees to provide covered employees, upon request, with up to 12 weeks of protected unpaid leave during any 12 month period for the following reasons:
For the birth of a child or the placement of a child in connection with the adoption or placement in foster care of the child with the employee.
To care for a parent, spouse or child with a serious health condition.
Because of the employee's own serious health condition.
Defines "child" as a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in local parentis, who is either under the age of 18 or is an adult independent child.
Defines an "employer" as either any person who directly employs 50 or more persons to perform services for a wage or a salary, or the state and any political or civil subdivision of the state and cities.
Defines a "parent" as a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Defines a "serious" health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a health care provider.
Requires an employee to provide the employer with reasonable advance notice of the need for the leave, if foreseeable.
Authorizes an employer to require that an employee request for leave for a serious health condition be certified by a health care provider, as specified, and that it subsequently may be recertified if additional leave is requested.
Establishes a process by whereby an employer may contest the validity of the certification of a serious health condition and obtain an ultimate determination that is final and binding on the employer and the employee.
FISCAL EFFECT: According to the Senate Appropriations Committee, the Department of Fair Employment and Housing will incur increased General Fund costs of about $686,000 annually to implement the provisions of this bill.
COMMENTS: The federal Family and Medical Leave Act (FMLA) is the federal law that provides up to 12 weeks of unpaid leave to covered employees. The FMLA covers all public-sector workers and private sector workers who work for employers with 50 or more employees on the payroll or within 75 miles of the worksite. In addition, employees must work for at least 12 months and worked 1,250 hours or more for the same employer in the year preceding the leave.
CFRA is the state law version of the federal FMLA, and is enforced by the Department of Fair Employment and Housing. This bill proposes to make a number of changes to the CFRA.
Expanding Employers and Employees Covered Under the CFRA
The existing CFRA defines "employer” to mean any person who directly employs 50 or more persons, and includes the state, and any political or civil subdivision of the state. Similarly, CFRA specifies that it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed.
This bill would amend CFRA to provide that the law applies to any person who directly employs 25 or more employees.
FMLA COMPARISON: The FMLA covers all public-sector workers and private sector workers who work for employers with 50 or more employees on the payroll or within 75 miles of the worksite.
Expanding the Definition of Child
Existing state law defines a "child" as a biological, adopted or foster child, as stepchild, a legal ward or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child. The regulations implementing the CFRA specify that an adult dependent child is "an individual who is 18 years of age or older and who is incapable of self-care because of a mental or physical disability (2 C.C. R. 7297.0 (c)).
This bill eliminates the reference to age and dependency status of a child, and specifies that "child" includes the son or daughter of a domestic partner.
FMLA COMPARISON: The FMLA uses a definition of "son or daughter" that specifies that the individual must be either under the age of 18 or age 18 or older and "incapable of self-care because of a mental or physical disability" (29 C.F.R. 825.113 (c)), identical to the definition under the existing CFRA regulations.
Expanding Coverage for Siblings, Grandparents, Grandchildren, and Parents-in-Law
Existing state law defines "family and medical leave" to include leave to care for a parent, spouse or child with a serious health condition.
This bill expands the coverage of existing law to include leave to care for a sibling, grandparent, grandchild or parent-in-law with a serious health condition, and specifies that the permissible leave includes domestic partners with a serious health condition.
FMLA COMPARISON: The FMLA authorizes an employee to take leave to care for a spouse, son or daughter, or parent with a serious health condition. The federal regulation specifies that the term spouse means "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized" (29 C.F.R. 825.113 (a) ).
Elimination of Exception for Parents Working for the Same Employer
Existing law under CFRA states that where both parents are employed by the same employer, the employer shall not be required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than 12 weeks.
This bill would eliminate such language, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents
ARGUMENTS IN SUPPORT
According to the author, this bill ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40 percent of the workforce is not eligible for California Family Rights Act due to the law’s eligibility.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave (PFL), a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. This bill seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
According to supporters, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Supporters bring attention to various study findings including: a study of Alzheimer’s patients which found that 40 percent of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20 percent of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law.
Supporters also note that California’s PFL insurance program provides an important partial wage replacement when an employee takes time off work to care for a seriously ill family member. However, because PFL does not provide any job protection some workers who pay into this fund never access its benefits because they would risk losing their job if they took any leave. Supporters point to a 2011 study which found that among those who were aware of PFL and needed leave but did not apply for benefits, 38 percent said they did not apply because they feared they would be fired or face other negative consequences at work. Supporters contend that this bill will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL and to lower the employer threshold so that more workers are covered.
Finally, supporters argue that most leave taken under the CFRA or the FMLA is short, minimizing the impact on employers. They state that nearly half of all leave taken is for 10 days or less. Moreover, they cite data from the Employment Development Department (EDD) that expanding this bill to cover employers with 25 or more employees will impact less than 6 percent of businesses in California.
ARGUMENTS IN OPPOSITION
A coalition of employers, including the California Chamber of Commerce, opposes this bill and argues that it will overwhelm small businesses by mandating businesses with 25 or more employees to provide a 12-week protected leave of absence. Opponents contend that this will put a greater burden on both small and large businesses while creating an even further disconnect from the FMLA. Opponents argue that this creates a burden for the employer especially if he or she has multiple employees already out of work on protected leaves and because the employer must hire and train a temporary employee to cover the employees’ duties, pay an existing employee a higher wage or overtime to take on the duties, or suffer decreased productivity until the existing employee out on leave is ready to return to work.
Additionally, opponents argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents argue that as these family members in this bill are not covered under the FMLA, this bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under this bill an employee could utilize his or her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his or her spouse, child or parent.
Opponents also argue that California already has extensive family-related protected leaves of absence including the following: Paid Sick Leave (applicable to all employers and includes employee and family members); Kin Care (applicable to all employers and allows employees to use half of paid time off for family members’ illnesses); California Family Rights Act (applicable to employees with 50 or more employees and provides 12-week leave of absence for employee’s medical condition, family members medical condition, or to bond with new child); Pregnancy Disability Leave (applicable to employers with 5 or more employees and provides 4 months of protected leave that is in addition to CFRA’s 12 weeks); School Activities Leave (applicable to employers with 25 or more employees for 40 hours per year to attend school related activities of a child). They contend that imposing another 12 week leave of absence on employers with only 25 employees is simply too much for many of these small employers to manage.
REGISTERED SUPPORT / OPPOSITION:
Support
9to5 CA Chapter
9to5 National
Alzheimer’s Association
American Association of Retired Persons
Association of American University Women, CA
Association of Caregiver Resource Centers, CA
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Employment Lawyers Association (co-sponsor)
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
California Work & Family Coalition
Center for Law and Social Policy
Central Coast Alliance United for a Sustainable Economy
Child Care Law Center
Coalition of California Welfare Rights Organizations, Inc.
Communications Workers of America 9003
Communications Workers of America District 9
Congress of California Seniors
Disability Rights California
Equal Rights Advocates (co-sponsor)
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Latino Coalition for a Healthy California
Legal Aid Society – Employment Law Center (co-sponsor)
Los Angeles Alliance for a New Economy LAANE
National Association of Social Workers, CA
National Council of Jewish Women, CA
National Partnership for Women & Families
Organization of SMUD Employees
Planned Parenthood Action Fund of Santa Barbara, Ventura & San Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Francisco Breastfeeding Promotion Coalition
San Luis Obispo County Employees Association
SEIU California
Teamsters Local Union No. 986
The Alliance of California for Community Empowerment
The Arc and United Cerebral Palsy California Collaboration
The Women’s Foundation of California
UC Hastings Center for WorkLife Law
Western Center on Law and Poverty
Western Regional Advocacy Project
Opposition
Air Conditioning Trade Association
Alhambra Chamber of Commerce
Associated Builders and Contractors of California
Associated General Contractors
California Ambulance Association
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Delivery Association
California Farm Bureau Federation
California Fresh Fruit Association
California Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California State Council of SHRM
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
Far West Equipment Dealers Association
Greater Bakersfield Chamber of Commerce
National Federation of Independent Business
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
San Francisco Chamber of Commerce
Small Business California
Society for Human Resource Management, CA
Southwest California Legislative Council
The Alliance
Torrance Area Chamber of Commerce
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
Western Plant Health Association
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091
SB 406
Page 9
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 406
Amended: 6/1/15
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/22/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
Legal Aid Society – Employment Law Center
DIGEST: This bill expands permissive family and medical leave under the California Family Rights Act to include care for a seriously ill child regardless of age or dependent status, grandparent, grandchild, sibling, or parent-in-law. This bill also reduces the small business exemption from 50 employees in a 75 miles radius to 25 employees. This bill also requires employers to grant 12 weeks of leave individually to parents, which are employed by the same employer, for leave in connection with the birth, adoption, or foster care of a child.
Senate Floor Amendments of 6/1/15 provide consistency with the small business exemption including businesses that employ 25 or fewer employees in the California Family Rights Act.
ANALYSIS: Existing federal law, under the Family and Medical Leave Act (FMLA) entitles eligible employees to take unpaid, job-protected leave for up to 12 weeks in a 12-month period for:
The birth of a child and to care for the newborn child within one year of birth or placement of a child for adoption or foster care.
To care for the employee’s spouse, child, or parent who has a serious health condition.
A serious health condition that makes the employee unable to perform the essential functions or his or her job.
Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” or 26 workweeks in a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.
This leave, granted under both the state California Family Rights Act (CFRA) and the federal FMLA must be taken concurrently. (§105 of the FMLA and §825.220 of FMLA regulations)
Existing
state law, under CFRA:
Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.
Allows eligible employees to take 12 workweeks of leave in a 12-month period for:
Bonding with a newborn or adopted child.
Caring for a family member with a serious health condition (includes parent, spouse, and child).
The employee’s own serious health condition (excluding pregnancy).
States that eligible employees must meet the following conditions:
Worked more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12 month period.
Worked at a location in which the employer has at least 50 employees within 75 miles of the employee’s worksite.
Guaranteed reinstatement to the same or comparable position after taking family leave under CFRA and FMLA.
Provides the following definitions family members and serious health condition:
Child: a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child.
Parent: the employee’s biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Serious health condition: an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a healthcare provider.
Requires that an employee provide the employer with reasonable advance notice of the need for the leave, if foreseeable, and authorizes the employer to require certification by a health care provider for leave requests due to serious health conditions.
States that when both parents are entitled to family and medical leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, the employer is not required to grant both parents leave totaling more than 12 weeks.
Existing law established a family temporary disability insurance program, Paid Family Leave (PFL) that provides up to six weeks of wage replacement benefits to workers who take time off work to care for: a seriously ill child, spouse, parent, or domestic partner, siblings, grandparents, grandchildren, and parents-in-laws or to bond with a minor child in connection with foster care or adoption. (Unemployment Insurance Code §3301)
Existing
law states that an individual is eligible to receive temporary
disability insurance benefits equal to one-seventh of his or her
weekly benefit amount for each full day during which he or she is
unable to work due to caring for a seriously ill or injured family
member or bonding with a minor child within one year of the birth or
placement of the child in connection with foster care or adoption.
(Unemployment Insurance Code §3301)
This bill expands the family members covered in CFRA including:
“Child” to include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child.
Expands permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, or parent-in-law with a serious health condition.
Includes parent-in-law in the definition of parent.
Specifies permissible leave for a domestic partner with a serious health condition.
Reduces the small business exemption to an employer that employs 25 or fewer employees within 75 miles of the worksite where the employee is employed.
This bill also removes an exception when both parents are entitled to leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents as in currently in statute.
Comments
Author’s statement. According to the author’s office, SB 406 ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for California Family Rights Act due to the law’s eligibility requirements, which means they are cannot take job-protected, paid leave through the Paid Family Leave program.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave, a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. SB 406 seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
The interaction between FMLA/CFRA. There are various federal and state laws pertaining to family leave – making it important to understand the differences between the statutes as well as how they interact with one another. The Family and Medical Leave Act (FMLA) is a federal law that is administered by the U.S. Department of Labor while the California Family Rights Act (CFRA) is a state law administered by the Department of Fair Employment and Housing (DFEH). The state law changed in 1993 to generally conform to the provisions of the FMLA. Both the FMLA and CFRA allow an eligible employee to take up to a total of twelve job-protected workweeks of leave with employer-paid health, dental, and vision benefits during a “rolling” twelve month period. The twelve weeks of leave must run concurrently for all purposes aside from:
Leave to care for a domestic partner (CFRA only)
Disabilities due to pregnancy or pregnancy-related condition (FMLA only)
Leave for a qualifying exigency related to a family member’s military service (FMLA only)
Leave to care for an ill or injured service member (FMLA only)
If an eligible FMLA/CFRA employee also elects to receive wage replacement benefits from the Paid Family Leave program then the PFL must be taken concurrently as well.
In addition to sharing similar leave provisions and eligibility requirements, both the FMLA and CFRA have anti-retaliation and discrimination provisions.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, DFEH wwill incur increased General Fund costs of about $686,000 annually to implement the provisions of this bill. DFEH will require an augmentation of six positions and $686,000 to handle an assumed increased in CFRA complaints of about 24% created by the expansion of CFRA rights. DFEH will not receive any additional federal funds; its work share agreement with the Equal Employment Opportunity Commission excludes CFRA complaints.
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
Legal Aid Society – Employment Law Center (co-source)
9to5
Alzheimer’s Association
American Association of Retired Persons
Association of American University Women
Association of Caregiver Resource Centers
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
California Work & Family Coalition
Center for Law and Social Policy
Child Care Law Center
Coalition of California Welfare Rights Organizations, Inc.
Communications Workers of America 9003
Communications Workers of America District 9
Congress of California Seniors
Disability Rights California
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Los Angeles Alliance for a New Economy
Los Angeles Alliance for a New Economy
National Association of Social Workers
National Council of Jewish Women
National Partnership for Women & Families
Organization of SMUD Employees
Planned Parenthood Action Fund of Santa Barbara, Ventura & San Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Francisco Breastfeeding Promotion Coalition
San Luis Obispo County Employees Association
SEIU California
Teamsters Local Union No. 986
The Alliance of California for Community Empowerment
The Arc and United Cerebral Palsy California Collaboration
The Women’s Foundation of California
UC Hastings Center for WorkLife Law
Western Center on Law and Poverty
Western Regional Advocacy Project
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Fresh Fruit Association
California Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
Far West Equipment Dealers Association
Greater Bakersfield Chamber of Commerce
National Federation of Independent Business
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
Southwest California Legislative Council
The Alliance
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
Western Plant Health Association
ARGUMENTS IN SUPPORT: According to proponents, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Proponents bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law.
Proponents also note that California’s PFL insurance program provides an important partial wage replacement when an employee takes time off work to care for a seriously ill family member. However, according to proponents because PFL does not provide any job protection some workers who pay into this fund never access its benefits because they would risk losing their job if they took any leave. Proponents point to a 2011 study which found that among those who were aware of PFL and needed leave but did not apply for benefits, 38% said they did not apply because they feared they would be fired or face other negative consequences at work. Proponents argue that to make sure the state’s PFL program ensures family members are cared for employees need to be able to take leave without risking their jobs. Proponents contend that SB 406 will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL and to lower the employer threshold so that more workers are covered.
ARGUMENTS IN OPPOSITION: Opponents argue that SB 406 will overwhelm small businesses by mandating businesses with 25 or more employees to provide a 12-week protected leave of absence. Opponents contend that this will put a greater burden on both small and large businesses while creating an even further disconnect from the FMLA. Opponents argue that this creates a burden for the employer especially if he or she has multiple employees already out of work on protected leaves and because the employer must hire and train a temporary employee to cover the employees’ duties, pay an existing employee a higher wage or overtime to take on the duties, or suffer decreased productivity until the existing employee out on leave is ready to return to work.
Additionally, opponents argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents argue that as these family members in SB 406 are not covered under the FMLA, this bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under SB 406 an employee could utilize his or her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his or her spouse, child or parent.
Prepared by: Deanna Ping / L. & I.R. / (916) 651-1556
6/2/15 14:57:22
**** END ****
SB 406
Page 9
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 406
Amended: 4/23/15
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/22/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
Legal Aid Society – Employment Law Center
DIGEST: This bill expands permissive family and medical leave under the California Family Rights Act to include care for a seriously ill child regardless of age or dependent status, grandparent, grandchild, sibling, or parent-in-law. This bill also reduces the small business exemption from 50 employees in a 75 miles radius to 25 employees. This bill also requires employers to grant 12 weeks of leave individually to parents, which are employed by the same employer, for leave in connection with the birth, adoption, or foster care of a child.
ANALYSIS: Existing federal law, under the Family and Medical Leave Act (FMLA), entitles eligible employees to take unpaid, job-protected leave for up to 12 weeks in a 12-month period for:
The birth of a child and to care for the newborn child within one year of birth or placement of a child for adoption or foster care.
To care for the employee’s spouse, child, or parent who has a serious health condition.
A serious health condition that makes the employee unable to perform the essential functions or his or her job.
Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” or 26 workweeks in a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.
This leave, granted under both the state California Family Rights Act (CFRA) and the federal FMLA must be taken concurrently. (§105 of the FMLA and §825.220 of FMLA regulations)
Existing
state law, under CFRA:
Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.
Allows eligible employees to take 12 workweeks of leave in a 12-month period for:
Bonding with a newborn or adopted child.
Caring for a family member with a serious health condition (includes parent, spouse, and child) .
The employee’s own serious health condition (excluding pregnancy).
States that eligible employees must meet the following conditions:
Worked more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period.
Worked at a location in which the employer has at least 50 employees within 75 miles of the employee’s worksite.
Guaranteed reinstatement to the same or comparable position after taking family leave under CFRA and FMLA
Provides the following definitions family members and serious health condition:
Child: a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child.
Parent: the employee’s biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Serious health condition: an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a healthcare provider.
Requires that an employee provide the employer with reasonable advance notice of the need for the leave, if foreseeable, and authorizes the employer to require certification by a health care provider for leave requests due to serious health conditions.
States that when both parents are entitled to family and medical leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, the employer is not required to grant both parents leave totaling more than 12 weeks.
Existing state law established a family temporary disability insurance program, Paid Family Leave (PFL) that provides up to six weeks of wage replacement benefits to workers who take time off work to care for: a seriously ill child, spouse, parent, or domestic partner, siblings, grandparents, grandchildren, and parents-in-laws or to bond with a minor child in connection with foster care or adoption. (Unemployment Insurance Code §3301)
Existing
state law states that an individual is eligible to receive temporary
disability insurance benefits equal to one-seventh of his or her
weekly benefit amount for each full day during which he or she is
unable to work due to caring for a seriously ill or injured family
member or bonding with a minor child within one year of the birth or
placement of the child in connection with foster care or adoption.
(Unemployment Insurance Code §3301)
This bill expands the family members covered in the CFRA including:
“Child” to include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child.
Expands permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, or parent-in-law with a serious health condition.
Includes parent-in-law in the definition of parent.
Specifies permissible leave for a domestic partner with a serious health condition.
Reduces the small business exemption to an employer that employs 25 or fewer employees within 75 miles of the worksite where the employee is employed.
This bill also removes an exception when both parents are entitled to leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents as in currently in statute.
Comments
Author’s statement. According to the author’s office, SB 406 ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for CFRA due to the law’s eligibility requirements, which means they are cannot take job-protected, paid leave through the PFL program.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for PFL, a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. SB 406 seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill also allows for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
The interaction between FMLA/CFRA. There are various federal and state laws pertaining to family leave – making it important to understand the differences between the statutes as well as how they interact with one another. FMLA is a federal law that is administered by the U.S. Department of Labor while the CFRA is a state law administered by the Department of Fair Employment and Housing (DFEH). The state law changed in 1993 to generally conform to the provisions of the FMLA. Both the FMLA and CFRA allow an eligible employee to take up to a total of 12 job-protected workweeks of leave with employer-paid health, dental, and vision benefits during a “rolling” 12-month period. The 12 weeks of leave must run concurrently for all purposes aside from:
Leave to care for a domestic partner (CFRA only).
Disabilities due to pregnancy or pregnancy-related condition (FMLA only).
Leave for a qualifying exigency related to a family member’s military service (FMLA only).
Leave to care for an ill or injured service member (FMLA only).
If an eligible FMLA/CFRA employee also elects to receive wage replacement benefits from the PFL program then the PFL must be taken concurrently as well.
In addition to sharing similar leave provisions and eligibility requirements, both the FMLA and CFRA have anti-retaliation and discrimination provisions.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
According
to the Senate Appropriations Committee, DFEH will incur increased
General Fund costs of about $686,000 annually to implement the
provisions of this bill. DFEH will require an augmentation of six
positions and $686,000 to handle an assumed increased in CFRA
complaints of about 24% created by the expansion of CFRA rights. DFEH
will not receive any additional federal funds; its work share
agreement with the Equal Employment Opportunity Commission excludes
CFRA complaints.
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
Legal Aid Society – Employment Law Center (co-source)
9to5
Alzheimer’s Association
American Association of Retired Persons
Association of American University Women
Association of Caregiver Resource Centers
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
Center for Law and Social Policy
Child Care Law Center
Coalition of California Welfare Rights Organizations, Inc.
Communications Workers of America 9003
Communications Workers of America District 9
Congress of California Seniors
Disability Rights California
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Los Angeles Alliance for a New Economy
National Association of Social Workers
National Council of Jewish Women
National Partnership for Women & Families
Planned Parenthood Action Fund of Santa Barbara, Ventura & San Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Francisco Breastfeeding Promotion Coalition
SEIU California
Teamsters Local Union No. 986
OPPOSITION: (Verified 5/29/15)
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Fresh Fruit Association
California Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
Far West Equipment Dealers Association
Greater Bakersfield Chamber of Commerce
National Federation of Independent Business
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
Southwest California Legislative Council
The Alliance
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
Western Plant Health Association
ARGUMENTS IN SUPPORT: According to proponents, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Proponents bring attention to various study findings including: a study of Alzheimer’s patients which found that 40% of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law.
Proponents also note that California’s PFL insurance program provides an important partial wage replacement when an employee takes time off work to care for a seriously ill family member. However, according to proponents because PFL does not provide any job protection some workers who pay into this fund never access its benefits because they would risk losing their job if they took any leave. Proponents point to a 2011 study which found that among those who were aware of PFL and needed leave but did not apply for benefits, 38% said they did not apply because they feared they would be fired or face other negative consequences at work. Proponents argue that to make sure the state’s PFL program ensures family members are cared for employees need to be able to take leave without risking their jobs. Proponents contend that SB 406 will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL and to lower the employer threshold so that more workers are covered.
ARGUMENTS IN OPPOSITION: Opponents argue that SB 406 will overwhelm small businesses by mandating businesses with 25 or more employees to provide a 12-week protected leave of absence. Opponents contend that this will put a greater burden on both small and large businesses while creating an even further disconnect from the FMLA. Opponents argue that this creates a burden for the employer especially if he or she has multiple employees already out of work on protected leaves and because the employer must hire and train a temporary employee to cover the employees’ duties, pay an existing employee a higher wage or overtime to take on the duties, or suffer decreased productivity until the existing employee out on leave is ready to return to work.
Additionally, opponents argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents argue that as these family members in SB 406 are not covered under the FMLA, this bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under SB 406 an employee could utilize his or her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his or her spouse, child or parent.
Prepared by: Deanna Ping / L. & I.R. / (916) 651-1556
5/30/15 16:27:05
**** END ****
SB 406 (Jackson) Page 2 of 2
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 406 (Jackson) - Employment: leave.
|
|
Version: April 23, 2015 |
Policy Vote: L. & I.R. 4 - 1 |
Urgency: No |
Mandate: No |
Hearing Date: May 11, 2015 |
Consultant: Robert Ingenito |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 406 would (1) extend permissive family and medical leave under the California Family Rights Act (CFRA) to include a seriously ill child, grandparent, grandchild, sibling or parent-in-law, (2) reduce the small business exemption from 50 employees in a 75 miles radius to 25 employees, and (3) require employers to grant 12 weeks of leave individually to parents, which are employed by the same employer, for leave in connection with the birth, adoption, or foster care of a child?
Fiscal Impact:
The Department of Fair Employment and Housing (DFEH) would incur increased General Fund costs of about $686,000 annually to implement the provisions of the bill.
Background:
Under current law, CFRA requires an employer with 50 or more employees to allow an employee who has worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for their own serious medical condition, for the birth or adoption of a child, or to care for the serious medical condition of a child (under 18 years of age or adult dependent), spouse or parent. The current definition of a “parent” includes step-parents, as well as those individuals who stand in locos parentis to the child.
Proposed Law:
This bill would expand the family members covered under the CFRA, as follows:
“Child” would include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child.
Permissible family and medical leave would be expanded to include leave to care for a sibling, grandparent, grandchild, or parent-in-law with a serious health condition.
The bill would include parent-in-law in the definition of parent.
The bill specifies permissible leave for a domestic partner with a serious health condition.
The bill would reduce the small business exemption to an employer that employs 25 or fewer employees within 75 miles of the worksite where the employee is employed.
The bill would remove an exception when both parents are entitled to leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents as in currently in statute.
Related Legislation:
SB 770 (Jackson), Chapter 350, Statutes of 2013. Broadened the definition of family within the Paid Family Leave (PFL) program to allow workers to receive the partial wage replacement benefits while taking care of seriously ill siblings, grandparents, grandchildren, and parents-in-law.
Staff Comments:
DFEH would require an augmentation of six positions and $686,000 to handle an assumed increased in CFRA complaints of about 24 percent created by the expansion of CFRA rights. DFEH would not receive any additional federal funds; its work share agreement with the Equal Employment Opportunity Commission excludes CFRA complaints.
DFEH chose its growth factor of 24 percent based on a U.S. Census estimate that an equivalent proportion of the State’s employers have 25-49 employees. Data from the Employment Development Department indicate that the share is a few percentage points lower, suggesting that the workload resulting from the bill could be less than the DFEH estimate.
As a direct employer, the State generally provides the benefit associated with this bill; consequently the impact to state agencies is expected to be minimal. The Department of Developmental Services (DDS), however, notes that providers likely would ask for unanticipated rate adjustments as a result of the bill. DDS would likely grant the request, assuming the providers can document the bill’s impact to their costs. Doing so would be difficult for the providers to estimate; thus, the resulting fiscal impact to DDS is unknown.
-- END --
SB 406 (Jackson) Page 7 of 7
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 406 Hearing Date: April 22, 2015
Author: |
Jackson |
||
Version: |
February 25, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Deanna Ping |
||
Subject: Employment: leave
KEY ISSUE
Should the Legislature extend the permissive family and medical leave under the California Family Rights Act to include a seriously ill child, grandparent, grandchild, sibling or parent-in-law?
Should the Legislature reduce the small business exemption from 50 employees in a 75 miles radius to 5 employees?
Should the Legislature require employers to grant 12 weeks of leave individually to parents, which are employed by the same employer, for leave in connection with the birth, adoption, or foster care of a child?
ANALYSIS
Existing
law, under the California Family Rights Act (CFRA),
entitles eligible employees of covered employers to take unpaid,
job-protected leave
for specified family and medical reasons. Eligible employees are
entitled to:
Twelve work weeks of leave in a 12-month period for:
Bonding with a newborn or adopted child
Caring for a family member with a serious health condition (includes parent, spouse, and child)
The employee’s own serious health condition (excluding pregnancy).
Eligible employees must meet the following conditions:
worked more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12 month period
worked at a location in which the employer has at least 50 employees within 75 miles of the employee’s worksite.
Guaranteed reinstatement to the same or comparable position after taking family leave under CFRA and FMLA
(Gov Code §12945.2)
Existing law provides the following definitions:
Child: a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under the age of 18 or is an adult dependent child
Parent: the employee’s biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child
Serious health condition: an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a healthcare provider.
(Gov Code §12945.2)
Existing law requires that an employee provide the employer with reasonable advance notice of the need for the leave, if foreseeable, and authorizes the employer to require certification by a health care provider for leave requests due to serious health conditions. (Gov Code §12945.2)
Existing
law states that when
both parents are entitled to family and medical leave in connection
with the birth, adoption, or foster care of a child and are employed
by the same employer, the employer is not required to grant both
parents leave totaling more than 12 weeks.
(Gov Code §12945.2)
Existing federal law, under the Family and Medical Leave Act (FMLA), also entitles eligible employees to take unpaid, job-protected leave for up to 12 weeks. This leave, granted under both the state CFRA and the federal FMLA must be taken concurrently. (§105 of the FMLA and §825.220 of FMLA regulations)
Existing law established a family temporary disability insurance program, Paid Family Leave (PFL) that provides up to six weeks of wage replacement benefits to workers who take time off work to care for:
a seriously ill child, spouse, parent, or domestic partner, siblings, grandparents, grandchildren, and parents-in-laws or to bond with a minor child in connection with foster care or adoption. (Unemployment Insurance Code §3301)
Existing
law states that an
individual is eligible to receive temporary disability insurance
benefits equal to one-seventh of his or her weekly benefit amount for
each full day during which he or she is unable to work due to caring
for a seriously ill or injured family member or bonding with a minor
child within one year of the birth or placement of the child in
connection with foster care or adoption. (Unemployment Insurance Code
§3301)
This Bill expands the family members covered in the California Family Rights Act including:
“Child” to include the son or daughter of a domestic partner and removes the provision regarding age and dependent status of the child
Expands permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, or parent-in-law with a serious health condition
Includes parent-in-law in the definition of parent
Specifies permissible leave for a domestic partner with a serious health condition
Reduces the small business exemption to an employer that employs 5 or fewer employees within 75 miles of the worksite where the employee is employed.
Removes an exception when both parents are entitled to leave in connection with the birth, adoption, or foster care of a child and are employed by the same employer, thereby requiring the employer to grant each employee up to 12 weeks of leave individually rather than between both parents as in currently in statute.
COMMENTS
1. The Interaction Between FMLA/CFRA
There are various federal and
state laws pertaining to family leave – making it important to
understand the differences between the statutes as well as how they
interact with one another. The Family and Medical Leave Act (FMLA) is
a federal law that is administered by the U.S. Department of Labor
while the California Family Rights Act (CFRA) is a state law
administered by the Department of Fair Employment and Housing. The
state law changed in 1993 to generally conform to the provisions of
the FMLA. Both the FMLA and CFRA allow an eligible employee to take
up to a total of twelve job-protected workweeks of leave with
employer-paid health, dental, and vision benefits during a “rolling”
twelve month period. The twelve weeks of leave must run concurrently
for all purposes aside from:
Leave to care for a domestic partner (CFRA only)
Disabilities due to pregnancy or pregnancy-related condition (FMLA only)
Leave for a qualifying exigency related to a family member’s military service (FMLA only)
Leave to care for an ill or injured service member (FMLA only)
If an eligible FMLA/CFRA employee also elects to receive wage replacement benefits from the Paid Family Leave program then the PFL must be taken concurrently as well.
In addition to sharing similar leave provisions and eligibility requirements, both the FMLA and CFRA have anti-retaliation and discrimination provisions.
2. Need for this bill?
According to the author’s office, SB 406 ensures that eligible workers can keep their jobs when they need time off to care for their families. Over 40% of the workforce is not eligible for California Family Rights Act due to the law’s eligibility requirements, which means they are cannot take job-protected, paid leave through the Paid Family Leave program.
The current definition of family under CFRA includes minor or adult dependent children, parents, spouses, and registered domestic partners. Recently, the definition of family members for Paid Family Leave, a program that allows workers to receive partial wage replacement benefits while taking care of seriously ill family members, was expanded to include siblings, grandparents, grandchildren, and parents-in-law. SB 406 seeks to include these family members under CFRA, allowing employees to take job-protected leave when utilizing their PFL benefits. Currently, employees may receive this monetary benefit when caring for these additional family members but risk losing their jobs to provide such care. This bill would also allow for parents that are entitled to leave and employed by the same employer to receive 12 weeks of family and medical leave individually in connection with the birth, adoption, or foster care of a child.
3. Proponent Arguments:
According to proponents, the restrictions on family caregiving under CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. Proponents bring attention to a various study findings including: a study of Alzheimer’s patients which found that 40 percent of caregivers were not covered under the narrow definition of family in CFRA, one study that found that nearly 20% of primary caregivers for chronically disabled individuals are neither the spouse nor the child of the person receiving care, and another finding that one in twelve caregivers provides care to a parent-in-law, grandparent, or grandparent-in-law. Further, proponents maintain that California has the second highest percentage of multi-generational households and almost half of Californians are single with their closest relative likely to be a sibling.
Proponents also note that California’s Paid Family Leave (PFL) insurance program provides an important partial wage replacement when an employee takes time off work to care for a seriously ill family member. However, according to proponents because Paid Family Leave does not provide any job protection some workers who pay into this fund never access its benefits because they would risk losing their job if they took any leave. Proponents point to a 2011 study which found that among those who were aware of PFL and needed leave but did not apply for benefits, 38% said they did not apply because they feared they would be fired or face other negative consequences at work. Proponents argue that to make sure the state’s PFL program ensures family members are cared for employees need to be able to take leave without risking their jobs. Proponents contend that SB 406 will provide the critical job-protection for workers who want to take paid family leave by amending CFRA to expand the definition of family to match PFL and to lower the employer threshold so that more workers are covered.
4. Opponent Arguments:
Opponents argue that SB 406 will overwhelm small businesses by mandating businesses with 5 or more employees to provide a 12-week protected leave of absence. Opponents contend that this will put a greater burden on both small and large businesses while creating an even further disconnect from the federal Family and Medical Leave Act. Opponents argue that this creates a burden for the employer especially if he or she has multiple employees already out of work on protected leaves and because the employer must hire and train a temporary employee to cover the employees’ duties, pay an existing employee a higher wage or overtime to take on the duties, or suffer decreased productivity until the existing employee out on leave is ready to return to work.
Additionally, opponents argue that expanding the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings will negatively impact California employers. Opponents argue that as these family members in SB 406 are not covered under the federal Family and Medical Leave Act, the bill will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave. Specifically, opponents argue that under SB 406 an employee could utilize his/her 12 weeks of CFRA to care for the serious medical condition of a grandparent as well as still be entitled to another 12-week protected leave of absence under FMLA for his or her own medical condition or the medical condition of his/her spouse, child or parent.
Lastly, opponents argue that since an employee can take CFRA and FMLA in as small of increments as one hour at a time it provides an extensive amount of protected time off for California-only employees requiring California-only employers to administer and track property to protect against potential liability.
5. Prior Legislation:
SB 770 (Jackson) Chapter 350, Statutes of 2013 – broadened the definition of family within the Paid Family Leave (PFL) program to allow workers to receive the partial wage replacement benefits while taking care of seriously ill siblings, grandparents, grandchildren, and parents-in-law.
SB 761 (DeSaulnier) of 2013 – this bill would have made it unlawful for an employer or agent of an employer to discharge or in any other manner discriminate against an individual because he or she has applied for, used, or indicated an intent to apply for or use, family temporary disability insurance benefits. This bill was amended out of Labor Code and into Revenue and Tax Code.
AB 2039 (Swanson) of 2012 – was identical to AB 59 of 2011, AB 849 of 2009 and AB 537 of 2007, was held in Senate Appropriations.
AB 59 (Swanson) of 2011 – was identical to AB 849 of 2009 and AB 537 of 2007, was held in Assembly Appropriations.
AB 849 (Swanson) of 2009 – was identical to AB 537 of 2007 and was held in Assembly Appropriations.
AB 537 (Swanson) of 2007 – would have increased the circumstances under which an employee is entitled to protected leave pursuant to the CFRA. Including, amending the definition of “child” to eliminate references to the age and dependency of the child, expanding the scope of permissible family and medical leave to include leave to care for a grandparent, sibling, grandchild, or parent-in-law with a serious health condition, and specifying that permissible leave includes leave to care for a domestic partner with a serious health condition. Vetoed by Governor Schwarzenegger.
SB 727 (Kuehl) of 2007 – would have allowed employees covered by Paid Family Leave to take paid leave to care for grandparents, grandchildren, siblings, and in-laws, as well as clarify existing law to ensure that Paid Family Leave must be taken concurrently with the California Family Medical Leave Act (CFRA) and the federal Family Medical Leave Act (FMLA). Vetoed by Governor Schwarzenegger.
SB 193 (Marks), Chapter 580, Statutes of 1993 – created the California Family Rights Act (CFRA), also known as the Moore-Brown-Roberti Family Rights Act.
SUPPORT
California Employment Lawyers Association (Co-Sponsor)
Equal Rights Advocates (Co-Sponsor)
The Legal Aid Society-Employment Law Center (Co-Sponsor)
Alzheimer’s Association
American Association of University Women
Association of California Caregiver Resource Centers
Association of Women’s Health, Obstetrics, and Neonatal Nurses
Breastfeed LA
California Alliance for Retired Americans
California Black Health Network
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women’s Law Center
Child Care Law Center
Communications Workers of America AFL-CIO, CLC Local 9003
Communications Workers of America, District 9 AFL-CIO
Congress of California Seniors
Family Caregiver Alliance
Forward Together
Independent Living Resource Center
Jodi House
LAANE
National Association of Social Workers, California Chapter
National Council of Jewish Women-CA
Service Employees International Union, AFL-CIO
The ARC California
The Center for Law and Social Policy
The Center for WorkLife Law
United Cerebral Palsy California Collaboration
Western Center on Law and Poverty
Western Regional Advocacy Project
9to5
OPPOSITION
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Growers Association
California Dairies, Inc.
California Fresh Fruit Association
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California State Council of Society for Human Resource Management
Family Business Association
Far West Equipment Dealers Association
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
The Alliance
The National Federation of Independent Business
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
-- END --
Discussed in Hearing
18MIN
Assembly Floor
2MIN
Senate Floor
1MIN
Assembly Floor
49MIN
Assembly Standing Committee on Labor and Employment
41MIN
Senate Floor
9MIN
Senate Standing Committee on Appropriations
Bill Author
