SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: SB 943 Hearing Date: May 14, 2020

Author:	Chang
Version:	April 29, 2020
Urgency:	Yes	Fiscal:	Yes
Consultant:	Alma Perez-Schwab

SUBJECT: Paid family leave: COVID-19.

KEY ISSUES

Should the Legislature authorize the use of Paid Family Leave wage replacement benefits for individuals who need to take time off work to care for a minor child whose school has been closed due to the COVID-19 virus outbreak or to care for a special needs child or adult?

Should funding for this extension of benefits be paid for with money from the General Fund?

ANALYSIS

Existing law:

Establishes the State Disability Insurance (SDI) program as a partial wage-replacement plan funded through employee payroll deductions that is available (through the Disability Insurance and Paid Family Leave programs) to eligible individuals who are unable to work due to sickness or injury of the employee (including pregnancy), the sickness or injury of a family member, or the birth, adoption, or foster care placement of a new child. (Unemployment Insurance Code §2601-3308)
The Paid Family Leave program (family temporary disability program, PFL):
1. Provides eligible employees (those paying into SDI) with up to 6 weeks (8 weeks beginning July 1, 2020) of wage replacement benefits to care for a seriously ill child, spouse or registered domestic partner, parent, siblings, grandparents, grandchildren, and parents-in-laws or to bond 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(a)(1)]

1. Beginning January 1, 2021, PFL will include leave to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
2. Eligible claimants can receive a wage replacement of approximately 60 to 70 percent (depending on income) of wages earned 5 to 18 months before the claim start date for up to eight weeks within any 12-month period.
3. Employers may require that employees take up to two weeks of earned but unused vacation when using PFL. The law does not allow employers to require employees to use sick leave.
4. For purposes of PFL, “child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis. [Unemployment Insurance Code §3302(c)]

SDI does not provide job protection or return to work rights.
SDI does not require continued group health coverage during the duration of leave.

This bill:

Authorizes the use of Paid Family Leave benefits, until June 1, 2021, for individuals who need to take time off work to care for a minor child whose school has been closed due to the COVID-19 virus outbreak or is caring for a special needs child or adult, or both, due to the outbreak if all the following are met:
1. The individual has made a claim for temporary disability benefits as required by authorized regulations.
2. The individual has filed a certificate, as required by Sections 2708 and 2709.
3. The individual’s employer employs 500 or more employees or fewer than 50 employees.
Specifies that any additional costs associated with the extension of Paid Family Leave to persons who take time off work for the purposes of this bill must be paid from the General Fund, upon appropriations by the Legislature.
Includes an urgency clause making the measure take effect immediately in order to address the unprecedented closure of schools due to the COVID-19 virus outbreak and the need to care for minor children as well as children and adults with special needs who cannot attend school.

COMMENTS

1. Background: Federal Families First Coronavirus Response Act: Employee Paid Leave

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA or Act) in response to the spread of the novel coronavirus, COVID-19 and the impacts it was starting to have on the economy. Among other things, the act requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date through December 31, 2020.

Covered employees are eligible to receive:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition, as specified; and
Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Covered Employers: The sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. However, a small employer, including a religious or nonprofit organization, with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

2. Need for this bill?

According to the author, “California’s Paid Family Leave (PFL) program provides benefits to individuals who need to take time off work to care for a seriously ill family member and to parents who need time to bond with a new child. PFL is also available to those who are in quarantine or who are caring for someone with a confirmed COVID-19 diagnosis. However, these monetary benefits are not available to those who need to stay home to care for a child whose school has closed due to COVID-19. At the time SB 943 was introduced, nearly 99 percent of schools in California were closed, displacing millions of students.

On March 18, 2020, the federal government enacted the FFCRA, which included a number of economic and health measures in response to COVID-19. FFCRA included two new temporary leave programs to provide relief to workers enduring consequences from the ongoing public health crisis. The two federal programs, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act both provide relief to parents of children dismissed from school due to closures. However, both of the programs have significant gaps that leave many parents without options. Some of the families ineligible for the federal program include:

Parents who work for an employer with 500+ employees;
Some parents who work for an employer with fewer than 50 employees;
Any parent with children displaced from school longer than 3 months;
Any parent with children displaced from school after December 2020 due to COVID-19 surges.

According to the Legislative Analyst Office (LAO), fewer than half of workers are covered by the combined federal leave programs.”

According to the author, this pandemic has turned the lives of so many families upside down, leaving many struggling to simultaneously care for children and support themselves financially. The author believes that all parents impacted by school closures should have access to family leave. This bill will fill the gaps in the new federal temporary leave programs by allowing parents of children displaced due to school closures to use the state Paid Family Leave benefit.

3. Suggested Amendments:

Amendment 1:

This bill seeks to aid families impacted by the closure of a school due to the impacts of the COVID-19 virus outbreak; however, the bill doesn’t include the impacts to individuals losing care because of the closure of a childcare provider for the same COVID-19 reasons. The FFCRA includes leave to care for a child due to both a school and childcare provider closure or unavailability due to COVID-19.

The author may wish to amend the bill to include individuals needing to care for children due to loss of childcare.

Amendment 2:

This bill requires, as part of the qualification for receiving PFL for these purposes, that the individual file a certificate, as required by Sections 2708 and 2709 of the Unemployment Insurance Code (page 5, lines 18-19). These particular sections requires that “a claimant shall establish medical eligibility for each uninterrupted period of disability by filing a first claim for disability benefits supported by the certificate of a treating physician or practitioner that establishes the sickness, injury, or pregnancy of the employee, or the condition of the family member that warrants the care of the employee.” (UI Code §2708) For the purposes outlined in this bill, the use of PFL to care for a child/adult due to a school closure, the requirement of certification from a medical provider would be irrelevant and possibly unattainable, as a medical provider would have to certify a school closure.

As an alternative, the author may wish to provide for self-certification to fulfill this requirement. The FCCRA currently allows for self-certification, this amendment would be consistent with the requirements of employees covered by the FFCRA.

Amendment 3:

Under the Paid Family Leave provisions, “child” is defined as a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis. [Unemployment Insurance Code §3302(c)] This definition of “child” does not differentiate between a minor child, an adult child, or a child with special needs – meaning that an individual can take PFL to care for a child in all these categories. Existing labor code does not currently define “special needs child or adult.”

Because of this inclusive definition, the author may wish to amend the bill as noted below to be consistent with existing PFL provisions and definitions.

Amendment 4:

The Federal FFCRA sunsets on December 31, 2020 while the provisions of this bill are set to sunset June 1, 2021. This means that for six months, the individuals currently kept out of the federal law (which this bill seeks to help) will have access to PFL benefits while those currently included in the federal law will have no similar FFCRA or other paid leave benefit.

The author may wish to amend the bill to be consistent with the FFCRA and sunset the provisions on December 31, 2020. Should the federal government extend the FFCRA beyond that date, the legislature can do the same with these provisions with another urgency bill.

Staff suggests the following changes to the bill to address the concerns described above:

On page 3, line 22:

(o) “Valid claim” also means, until ~~June 1, 2021~~ December 31, 2020, any claim for family temporary disability benefits made in accordance with the provisions of this code, and any rules and regulations adopted thereunder, if the individual claiming benefits is unemployed and has been paid the necessary wages in employment for employers to qualify for benefits under Section 2652 and is caring for a child or other family member, including a child or adult with disabilities, whom the employee is responsible for providing care if such person’s school or place of care has been closed, or the care provider of such person is unavailable ~~minor child whose school has been closed~~ due to the COVID-19 virus outbreak ~~or is caring for a special needs child or adult, or both, due to the outbreak~~.

On page 5, line 18:

(2) The individual has filed a self-certification that includes the name of the child or family member being cared for; the name of the school, place of care, or childcare provider that has closed or become unavailable; and a statement from the employee that no other suitable person is available to care for the child or family member ~~certificate, as required by Sections 2708 and 2709~~.

On page 5, line 22:

(b) This section shall remain in effect only until ~~June 1, 2021~~ December 31, 2020, and as of that date is repealed.

4. Proponent Arguments

According to the California Teachers Association, “The closure of schools in the midst of the coronavirus pandemic is having a dramatic impact on families. Many parents with younger children are faced with an impossible choice of leaving their children home alone or staying home from work. Moms and dads who make the decision not to go to work in this scenario are left with uncertainty about how the bills will get paid. A number of steps were taken by the state and federal government to ease the burden on families, and this proposal helps ensure that parents who stay home to care for their children in this crisis will be able to keep a roof over their heads and food in the refrigerator.

By receiving 60 to 70 percent (depending on income) for up to six weeks within any 12-month period, more families can shelter at home with their children, an act that will have long term societal benefits. This decision has the potential to help flatten the curve and save lives, provides students with caring adults who can help them succeed in the distance learning provided during the crisis, and brings families together for emotional support in the midst of trauma.”

5. Opponent Arguments:

None received.

6. Related Legislation:

SB 1383 (Jackson, 2020): Amends the Family School Partnership Act to: 1) authorize an employee to take time off work to attend to child-related activities resulting from an emergency school closure pursuant to a state emergency declaration by federal, state, or local government agency; 2) apply its provisions to employees working for all employers in the state; and 3) specifies that time off taken for a childcare provider or school emergency (including a school closure) shall not be limited to 40 hours and may be extended to the duration of the emergency. SB 1383 is pending hearing before this Committee.

AB 3216 (Kalra, 2020): Would make it an unlawful employment practice for any employer to refuse to grant a request by any employee to take family care and medical leave due to the coronavirus (COVID-19) with a guarantee of employment in the same or comparable position upon the termination of the leave. AB 3216 is pending in the Assembly Labor and Employment Committee.

SUPPORT

California Teachers Association

OPPOSITION

None received

-- END --

SB 943: Paid family leave: COVID-19.

News Coverage: