BILL NUMBER: SB 1661 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 29, 2002
INTRODUCED BY Senator Kuehl
(Coauthors: Senators Escutia, Karnette, and Romero)
(Coauthors: Assembly Members Alquist, Aroner, Goldberg,
Jackson, Strom-Martin, and Thomson)
FEBRUARY 21, 2002
An act to amend Sections 984, 2601, 2613, and 2708 of, and to add
Chapter 7 (commencing with Section 3300) to Part 2 of Division 1 of,
the Unemployment Insurance Code, relating to disability compensation,
and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1661, as amended, Kuehl. Disability compensation: family
temporary disability insurance.
Existing law provides for the payment of disability compensation
for the wage loss sustained by an individual unemployed because of
sickness or injury, and finances that compensation by means of
employee contributions to the Disability Fund.
This bill instead would provide disability compensation for any
individual who is unable to work due to the employee's own sickness
or injury, the sickness or injury of a family member, or the birth,
adoption, or foster care placement of a new child.
This bill would establish, within the state disability insurance
program, a family temporary disability insurance program to provide
up to 12 weeks of wage replacement benefits to workers who take time
off work to care for a seriously ill child, spouse, parent, domestic
partner, or to bond with a new child. This bill would provide the
additional benefits through additional employee contributions, and by
requiring employers to provide benefits either directly, through
private insurance, or by an election to contribute to the Disability
Fund. The bill would also make related, conforming changes in
provisions relating to disability compensation.
By providing for the deposit of additional moneys in the
Disability Fund, a continuously appropriated special fund, and
for the expenditure of regulatory fee revenues for the administration
of certain of its provisions, this bill would make an
appropriation.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 984 of the Unemployment Insurance Code is
amended to read:
984. (a) (1) Each worker shall pay worker contributions at the
rate determined by the director pursuant to this section with respect
to wages, as defined by Sections 926, 927, and 985. On or before
October 31 of each calendar year, the director shall prepare a
statement, which shall be a public record, declaring the rate of
worker contributions for the calendar year and shall notify promptly
all employers of employees covered for disability insurance of the
rate.
(2) (A) Except as provided in paragraph (3), the rate of worker
contributions for calendar year 1987 and for each subsequent calendar
year shall be 1.45 times the amount disbursed from the Disability
Fund during the 12-month period ending September 30 and immediately
preceding the calendar year for which the rate is to be effective,
less the amount in the Disability Fund on that September 30, with the
resulting figure divided by total wages paid pursuant to Sections
926, 927, and 985 during the same 12-month period, and then rounded
to the nearest one-tenth of 1 percent.
(B) The director shall increase the rate of worker contributions
by one-half of 1 .05 percent to cover
the cost of family temporary disability insurance benefits provided
in Chapter 7 (commencing with Section 3300) of Part 2. This
additional contribution rate shall be known as the employee's Family
Temporary Disability Insurance (FTDI) premium, and shall fund
benefits required by Chapter 7 (commencing with Section 3300) of Part
2. The director shall maintain a separate accounting of the cost of
benefits paid pursuant to Chapter 7 (commencing with Section 3300)
of Part 2. Beginning in 2004, the director shall provide an annual
accounting of this cost as part of the fund status report submitted
to the Legislature each May and October pursuant to
Section 995, and shall annually adjust the FTDI premium rate if a
change is necessary to support the cost incurred by FTDI benefit
payments. An employer electing to meet its obligation under Chapter
7 (commencing with Section 3300) of Part 2 to provide 50 percent of
FTDI benefits by contributing directly into the Disability Fund
shall, under that election, contribute an amount equal to the FTDI
premium paid by each employee into the Disability Fund.
(3) The rate of worker contributions shall not exceed 1.35 percent
or be less than 0.1 percent. The rate of worker contributions shall
not decrease from the rate in the previous year by more than
two-tenths of 1 percent.
(b) Worker contributions required under Sections 708 and 708.5
shall be at a rate determined by the director to reimburse the
Disability Fund for unemployment compensation disability benefits
paid and estimated to be paid to all employers and self-employed
individuals covered by those sections. On or before November 30th of
each calendar year, the director shall prepare a statement, which
shall be a public record, declaring the rate of contributions for the
succeeding calendar year for all employers and self-employed
individuals covered under Sections 708 and 708.5 and shall notify
promptly the employers and self-employed individuals of the rate.
The rate shall be determined by dividing the estimated benefits and
administrative costs paid in the prior year by the product of the
annual remuneration deemed to have been received under Sections 708
and 708.5 and the estimated number of persons who were covered at any
time in the prior year. The resulting rate shall be rounded to the
next higher one-hundredth percentage point. The rate may also be
reduced or increased by a factor estimated to maintain as nearly as
practicable a cumulative zero balance in the funds contributed
pursuant to Sections 708 and 708.5. Estimates made pursuant to this
subdivision may be made on the basis of statistical sampling, or
another method determined by the director.
(c) The director's action in determining a rate under this section
shall not constitute an authorized regulation.
(d) Notwithstanding subdivision (a), the director may, at his or
her discretion, increase or decrease, by not to exceed 0.1 percent,
the rate of worker contributions determined pursuant to subdivision
(a), up to a maximum worker contribution rate of 1.35 percent, if he
or she determines the adjustment is necessary to reimburse the
Disability Fund for disability benefits paid or estimated to be paid
to individuals covered by this section or to prevent the accumulation
of funds in excess of those needed to maintain an adequate fund
balance.
SEC. 2. Section 2601 of the Unemployment Insurance Code is amended
to read:
2601. The purpose of this part is to compensate in part for the
wage loss sustained by any individual who is unable to work due to
the employee's own sickness or injury, the sickness or injury of a
family member, or the birth, adoption, or foster care placement of a
new child, and to reduce to a minimum the suffering caused by
unemployment resulting therefrom. This part shall be construed
liberally in aid of its declared purpose to mitigate the evils and
burdens which fall on the unemployed and disabled worker and his or
her family.
SEC. 3. Section 2613 of the Unemployment Insurance Code is amended
to read:
2613. The Director of Employment Development shall develop and
maintain a program of education concerning disability insurance
rights and benefits. The director shall provide to each employer of
employees subject to this part a notice informing workers of their
disability insurance rights and benefits due to the employee's own
sickness, injury, or pregnancy, or the employee's need to provide
care for any sick or injured family member or new child who is unable
to care for himself or herself. The notice shall be given by every
employer to each new employee hired on or after January 1, 2003, and
to each employee leaving work due to pregnancy or nonoccupational
sickness or injury on or after January 1, 2003.
SEC. 4. Section 2708 of the Unemployment Insurance Code is amended
to read:
2708. (a) In accordance with the director's authorized
regulations, and except as provided in Sections 2708.1 and 2709, 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. For subsequent periods of uninterrupted disability after
the period covered by the initial certificate or any preceding
continued claim, a claimant shall file a continued claim for those
benefits supported by the certificate of a treating physician or
practitioner. A certificate filed to establish medical eligibility
for the employee's own sickness, injury, or pregnancy shall contain a
diagnosis and diagnostic code prescribed in the International
Classification of Diseases, or, where no diagnosis has yet been
obtained, a detailed statement of symptoms.
A certificate filed to establish medical eligibility of the
employee's own sickness, injury, or pregnancy shall also contain a
statement of medical facts including secondary diagnoses when
applicable, within the physician's or practitioner's knowledge, based
on a physical examination and a documented medical history of the
claimant by the physician or practitioner, indicating his or her
conclusion as to the claimant's disability, and a statement of his or
her opinion as to the expected duration of the disability.
(b) A certificate filed to establish medical eligibility of the
serious health condition of the family member that warrants the care
of the employee need not identify the serious health condition
involved, but shall contain:
(1) The date, if known, on which the condition commenced.
(2) The probable duration of the condition.
(3) An estimate of the amount of time that the physician or
practitioner believes the employee is needed to care for the child,
parent, spouse, or domestic partner.
(4) A statement that the serious health condition warrants the
participation of the employee to provide care for his or her child,
parent, spouse, or domestic partner.
"Warrants the participation of the employee" includes, but is not
limited to, providing psychological comfort, and arranging "third
party" care for the child, parent, spouse, or domestic partner, as
well as directly providing, or participating in, the medical care.
(c) The department shall develop a certification form for an
employee taking leave for reason of the birth of a child of the
employee or the employee's domestic partner, or the placement of a
child who is unable to care for himself or herself with the employee
in connection with the adoption or foster care of the child by the
employee or domestic partner.
(d) The first and any continuing claim of an individual who
obtains care and treatment outside this state, shall be supported by
a certificate of a treating physician or practitioner duly licensed
or certified by the state or foreign country in which the claimant is
receiving the care and treatment. If a physician or practitioner
licensed by and practicing in a foreign country is under
investigation by the department for filing false claims and the
department does not have legal remedies to conduct a criminal
investigation or prosecution in that country, the department may
suspend the processing of all further certifications until the
physician or practitioner fully cooperates, and continues to
cooperate with the investigation. A physician or practitioner
licensed by and practicing in a foreign country who has been
convicted of filing false claims with the department may not file a
certificate in support of a claim for disability benefits for a
period of five years.
(e) For purposes of this part, the term "physician" has the same
meaning as it does in Section 3209.3 of the Labor Code. For purposes
of this part, "practitioner" means a person duly licensed or
certified in California acting within the scope of his or her license
or certification who is a dentist, podiatrist, or as to normal
pregnancy or childbirth, a midwife, nurse midwife, or nurse
practitioner.
(f) For a claimant who is hospitalized in or under the authority
of a county hospital in this state, a certificate of initial and
continuing medical disability, if any, shall satisfy the requirements
of this section if the disability is shown by the claimant's
hospital chart, and the certificate is signed by the hospital's
registrar. For a claimant hospitalized in or under the care of a
medical facility of the United States government, a certificate of
initial and continuing medical disability, if any, shall satisfy the
requirements of this section if the disability is shown by the
claimant's hospital chart, and the certificate is signed by a medical
officer of the facility duly authorized to do so.
(g) Nothing in this section shall be construed to preclude the
department from requesting additional medical evidence to supplement
the first or any continued claim if the additional evidence can be
procured without additional cost to the claimant. The department may
require that the additional evidence include identification of
diagnoses, symptoms, or a statement as to the facts of the claimant's
disability by the physician or practitioner treating the claimant,
by the registrar, authorized medical officer, or other duly
authorized official of the hospital or health facility treating the
claimant, or by an examining physician or other representative of the
department.
SEC. 5. Chapter 7 (commencing with Section 3300) is added to Part
2 of Division 1 of the Unemployment Insurance Code, to read:
CHAPTER 7. PAID FAMILY CARE LEAVE
3300. The Legislature finds and declares all of the following:
(a) It is in the public benefit to provide family temporary
disability insurance benefits to workers to care for their family
members. The need for family temporary disability insurance benefits
has intensified as both parent's participation in the workforce has
increased, and the number of single parents in the workforce has
grown. The need for partial wage replacement for workers taking
family care leave will be exacerbated as the population of those
needing care, both children and parents of workers, increases in
relation to the number of working age adults.
(b) Developing systems that help families adapt to the competing
interests of work and home not only benefits workers, but also
benefits employers by increasing worker productivity and reducing
employee turnover.
(c) The federal Family and Medical Leave Act (FMLA) and California'
s Family Rights Act (CFRA) entitle eligible employees working for
covered employers to take unpaid, job-protected leave for up to 12
workweeks in a 12-month period. Under the FMLA and the CFRA, unpaid
leave may be taken for the birth, adoption, or foster placement of a
new child; to care for a seriously ill child, parent, or spouse; or
for the employee's own serious health condition.
(d) State disability insurance benefits currently provide wage
replacement for workers who need time off due to their own
non-work-related injuries, illnesses, or conditions, including
pregnancy, that prevent them from working, but do not cover leave to
care for a sick or injured child, spouse, parent, domestic partner,
or leave to bond with a new child.
(e) The majority of workers in this state are unable to take
family care leave because they are unable to afford leave without
pay. When workers do not receive some form of wage replacement
during family care leave, families suffer from the worker's loss of
income, increasing the demand on the state unemployment insurance
system and dependence on the state's welfare system.
(f) It is the intent of the Legislature to create a family
temporary disability insurance program to help reconcile the demands
of work and family. In recognition of the shared benefit of this
program, the family temporary disability insurance program shall be
implemented through employee contributions and the provision of
benefits by employers, and shall be administered in accordance with
the policies of the state disability insurance program created
pursuant to this part.
3301. The purpose of this chapter is to establish, within the
state disability insurance program, a family temporary disability
insurance program to provide up to 12 weeks of wage replacement
benefits to workers who take time off work to care for a seriously
ill child, spouse, parent, domestic partner, or to bond with a new
child.
3302. For purposes of this section:
(a) "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 a son or daughter of an employee who stands
in loco parentis to that child.
(b) "Family care leave" means any of the following:
(1) Leave for reason of the birth of a child of the employee or
the employee's domestic partner, the placement of a child with an
employee in connection with the adoption or foster care of the child
by the employee or domestic partner, or the serious health condition
of a child of the employee, spouse or domestic partner.
(2) Leave to care for a parent, spouse, or domestic partner who
has a serious health condition.
(c) "Parent" means a biological, foster, or adoptive parent, a
stepparent, a legal guardian, or other person who stood in loco
parentis to the employee or domestic partner when the employee or
domestic partner was a child.
(d) "Domestic partner" has the same meaning as defined in Section
297 of the Family Code.
(e) "Family member" means child, parent, spouse, or domestic
partner as defined in this section.
(f) "Serious health condition" means an illness, injury,
impairment, or physical or mental condition that involves inpatient
care in a hospital, hospice, or residential health care facility, or
continuing treatment or continuing supervision by a health care
provider, as defined in Section 12945.2 of the Government Code.
3303. An individual shall be deemed eligible for family temporary
disability insurance benefits on any day in which he or she is
unable to perform his or her regular or customary work because he or
she is caring for a new child or a seriously ill child, parent,
spouse, or domestic partner.
3304. Eligible workers shall receive benefits in accordance with
provisions established under this division. Fifty percent of the
benefits shall be provided from the Disability Fund into which the
employee's family temporary disability insurance
Family Temporary Disability Insurance (FTDI) premium shall
be deposited. The balance of those benefits shall be provided by
the employer to the employee, either directly or by means of
insurance procured by the employer, pursuant to regulations to be
promulgated by the department, or from the Disability Fund pursuant
to the employer's election to contribute an amount equal to the
employee's FTDI premium into the Disability Fund.
3305. (a) Employers, other than those electing to
contribute into the Disability Fund an amount equal to the employee's
FTDI Family Temporary Disability Insurance
(FTDI) premium required by Section 984, shall, as applicable,
provide for the assumption by an admitted disability insurer of the
liability of the employer to pay benefits under this chapter, file
with the director a bond of an admitted surety insurer conditioned on
the payment by the employer of its obligations under this section,
deposit with the director securities approved by the director to
secure the payment of obligations, or deposit with the director an
irrevocable letter of credit.
(b) Each employer subject to subdivision (a) shall, for each
calendar year, pay a regulatory fee to the department in an amount,
as limited by this subdivision, that is necessary to fund the
department's administrative costs incurred in administering and
monitoring the compliance of those employers with that subdivision.
In no event may the amount of the regulatory fee charged pursuant to
this subdivision exceed 14 percent of the product of the rate of the
FTDI premium, as determined in Section 984, and the amount of the
taxable wages paid by the employer during the calendar year to
employees eligible under this chapter for temporary disability
insurance benefits. Fee payments made pursuant to this subdivision
shall be deposited in the FTDI Private Option Administration Account,
which is hereby created in the Disability Fund. Notwithstanding
Section 13340 of the Government Code, moneys in that account are
hereby continuously appropriated, without regard to fiscal year, for
the exclusive purpose of funding the department's administrative
costs incurred in administering and monitoring the compliance of
employers with subdivision (a). No fee paid pursuant to this
subdivision constitutes payment of any part of an employer's FTDI
benefit obligation.