BILL NUMBER: AB 1001 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Skinner and Ma
FEBRUARY 27, 2009
An act to amend Sections 12920, 12921, 12926, 12940, 12945.2, and
12955.2 of the Government Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1001, as introduced, Skinner. Employment: familial status
protection.
Existing law, the California Fair Employment and Housing Act,
protects and safeguards the right and opportunity of all persons to
seek, obtain, and hold employment without discrimination or
abridgment on account of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation.
This bill would include "familial status" as an additional basis
upon which the right to seek, obtain, and hold employment cannot be
denied.
Existing law, the California Family Rights Act, permits employees
of specified employers with more than 12 months of service with the
employer and who have at least 1,250 hours of service with the
employer during the previous 12-month period of employment to take up
to a total of 12 workweeks in any 12-month period for family care
and medical leave. Existing law defines "family care and medical
leave" to mean leave for the birth or adoption of a child, the
serious health condition of a child, parent, or spouse, or the
serious health condition of the employee.
This bill would expand the definition of "family care and medical
leave" to mean leave for the birth or adoption of a child, to care
for the serious health condition of a parent, a grandparent, a
parent-in-law, a spouse, a domestic partner, a sibling, or a child,
or the serious health condition of the employee. The bill would also
provide nonexclusive examples of activities that constitute care for
the serious health condition of another.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12920 of the Government Code is amended to
read:
12920. It is hereby declared as the public policy of this state
that it is necessary to protect and safeguard the right and
opportunity of all persons to seek, obtain, and hold employment
without discrimination or abridgment on account of race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, familial status,
sex, age, or sexual orientation.
It is recognized that the practice of denying employment
opportunity and discriminating in the terms of employment for these
reasons foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interest of
employees, employers, and the public in general.
Further, the practice of discrimination because of race, color,
religion, sex, marital status, national origin, ancestry, familial
status, disability, or sexual orientation in housing accommodations
is declared to be against public policy.
It is the purpose of this part to provide effective remedies that
will eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the
state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 2. Section 12921 of the Government Code is amended to read:
12921. (a) The opportunity to seek, obtain and hold employment
without discrimination because of race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, familial status, sex,
age, or sexual orientation is hereby recognized as and declared to be
a civil right.
(b) The opportunity to seek, obtain, and hold housing without
discrimination because of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, disability, or any other basis prohibited by Section 51 of
the Civil Code is hereby recognized as and declared to be a civil
right.
SEC. 3. Section 12926 of the Government Code is amended to read:
12926. As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
(a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards
an award of backpay, reimbursement of
out-of-pocket expenses, hiring, transfers
transfer , reassignments reassignment
, grants a grant of tenure,
promotions promotion , a
cease and desist orders order , posting
of notices a notice , training of
personnel, testing, expunging of records, reporting of records, and
any other similar relief that is intended to correct an
unlawful practices practice under this
part.
(b) "Age" refers to the chronological age of any
an individual who has reached his or her 40th
birthday.
(c) "Employee" does not include any an
individual employed by his or her parents, spouse, or child, or
any an individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
(d) "Employer" includes any a person
regularly employing five or more persons, or any
a person acting as an agent of an employer, directly or
indirectly, the state or any a
political or civil subdivision of the state, and cities, except as
follows:
"Employer" does not include a religious association or corporation
not organized for private profit.
(e) "Employment agency" includes any a
person undertaking for compensation to procure employees or
opportunities to work.
(f) "Essential functions" means the fundamental job duties of the
employment position the individual with a disability holds or
desires. "Essential functions" does not include the marginal
functions of the position.
(1) A job function may be considered essential for any of several
reasons, including, but not limited to, any one or
more of the following:
(A) The function may be essential because the reason the position
exists is to perform that function.
(B) The function may be essential because of the limited number of
employees available among whom the performance of that job function
can be distributed.
(C) The function may be highly specialized, so that the incumbent
in the position is hired for his or her expertise or ability to
perform the particular function.
(2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:
(A) The employer's judgment as to which functions are essential.
(B) A Written job descriptions
description prepared before advertising or interviewing
applicants an applicant for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the
function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences experience
of a past incumbents incumbent
in the job.
(G) The current work experience of incumbents
an incumbent in a similar jobs
job .
(g) "Labor organization" includes any an
organization that exists and is constituted for the purpose, in
whole or in part, of collective bargaining or of dealing with
employers an employer concerning
grievances a grievance , the
terms or conditions of employment, or of other mutual aid or
protection.
(h) "Medical condition" means either of the following:
(1) Any A health impairment related
to or associated with a diagnosis of cancer or a record or history of
cancer.
(2) Genetic characteristics. For purposes of this section,
"genetic characteristics" means either of the following:
(A) Any A scientifically or
medically identifiable gene or chromosome, or combination or
alteration thereof, that is known to be a cause of a disease or
disorder in a person or his or her offspring, or that is determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that is presently not associated with
any the symptoms of any
a disease or disorder.
(B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any the symptoms of any
a disease or disorder.
(i) "Mental disability" includes, but is not limited to, all of
the following:
(1) Having any a mental or
psychological disorder or condition, such as mental retardation,
organic brain syndrome, emotional or mental illness, or specific
learning disabilities, that limits a major life activity. For
purposes of this section:
(A) "Limits" shall be determined without regard to mitigating
measures, such as medications medication
, an assistive devices
device , or reasonable accommodations
accommodation , unless the mitigating measure itself limits a
major life activity.
(B) A mental or psychological disorder or condition limits a major
life activity if it makes the achievement of the major life activity
difficult.
(C) "Major life activities" shall be broadly construed and shall
include physical, mental, and social activities and working.
(2) Any other mental or psychological disorder or condition not
described in paragraph (1) that requires special education or a
related services service .
(3) Having a record or history of a mental or psychological
disorder or condition described in paragraph (1) or (2), which is
known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any
a mental condition that makes achievement of a major life
activity difficult.
(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a mental or
psychological disorder or condition that has no present disabling
effect, but that may become a mental disability as described in
paragraph (1) or (2).
"Mental disability" does not include a sexual behavior
disorders disorder , compulsive
gambling, kleptomania, pyromania, or a psychoactive
substance use disorders disorder
resulting from the current unlawful use of a controlled
substances substance or other
drugs another drug .
(j) "On the bases enumerated in this part" means or refers to
discrimination on the basis of one or more of the following: race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
familial status, sex, age, or sexual orientation.
(k) "Physical disability" includes, but is not limited to, all of
the following:
(1) Having any a physiological
disease, disorder, condition, cosmetic disfigurement, or anatomical
loss that does both of the following:
(A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For purposes of this section:
(i) "Limits" shall be determined without regard to mitigating
measures such as medications medication
, an assistive devices device
, prosthetics a prosthetic , or
reasonable accommodations accommodation
, unless the mitigating measure itself limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss limits a major life activity if it
makes the achievement of the major life activity difficult.
(iii) "Major life activities" shall be broadly construed and
includes physical, mental, and social activities and working.
(2) Any other health impairment not described in paragraph (1)
that requires special education or related services.
(3) Having a record or history of a disease, disorder, condition,
cosmetic disfigurement, anatomical loss, or health impairment
described in paragraph (1) or (2), which is known to the employer or
other entity covered by this part.
(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any
a physical condition that makes achievement of a major
life activity difficult.
(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or health
impairment that has no present disabling effect but may become a
physical disability as described in paragraph (1) or (2).
(6) "Physical disability" does not include a sexual
behavior disorders disorder ,
compulsive gambling, kleptomania, pyromania, or a
psychoactive substance use disorders disorder
resulting from the current unlawful use of a
controlled substances substance or
other drugs another drug .
() Notwithstanding subdivisions (i) and (k), if the definition of
"disability" used in the Americans with Disabilities Act of 1990
(Public Law 101-336) (42 U.S .C.
Sec. 12101 et seq.) would result in broader protection of the
civil rights of individuals an individual
with a mental disability or physical disability, as defined in
subdivision (i) or (k), or would include any
a medical condition not included within those definitions, then
that broader protection or coverage shall be deemed incorporated by
reference into, and shall prevail over conflicting provisions of, the
definitions in subdivisions (i) and (k).
(m) "Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, familial status, sex, age, or sexual
orientation" includes a perception that the person has any of those
characteristics or that the person is associated with a person who
has, or is perceived to have, any of those characteristics.
(n) "Reasonable accommodation" may include either of the
following:
(1) Making existing facilities used by employees
an employee readily accessible to, and usable
by, individuals an individual with
disabilities a disability .
(2) Job restructuring, a part-time or modified work
schedules schedule , reassignment to a
vacant position, acquisition or modification of equipment or
devices a device , adjustment or
modifications modification of
examinations an examination , training
materials material or policies
policy , the provision of a qualified
readers reader or
interpreters interpreter , and other similar
accommodations accommodation for
individuals an individual with
disabilities a disability .
(o) "Religious creed," "religion," "religious observance,"
"religious belief," and "creed" include all aspects of religious
belief, observance, and practice.
(p) "Sex" includes, but is not limited to, pregnancy, childbirth,
or a medical conditions condition
related to pregnancy or childbirth. "Sex" also includes, but is
not limited to, a person's gender, as defined in Section 422.56 of
the Penal Code.
(q) "Sexual orientation" means heterosexuality, homosexuality, and
bisexuality.
(r) "Supervisor" means any an
individual having the authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
direct them, or to adjust their grievances, or effectively to
recommend that action, if, in connection with the foregoing, the
exercise of that authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
(s) "Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facilities
facility involved in the provision of the
reasonable accommodations accommodation
, the number of persons employed at the facility, and the effect on
expenses and resources or the impact otherwise of these
accommodations this accommodation upon the
operation of the facility.
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities.
(4) The type of operations, including the composition, structure,
and functions of the workforce of the entity.
(5) The geographic separateness, administrative, or fiscal
relationship of the facility or facilities .
(t) In connection with unlawful employment practices, "familial
status" means an individual under 18 years of age who resides with a
parent, a parent or person with care and legal custody of that
individual, a person who has been given care and custody of that
individual by a state or local governmental agency that is
responsible for the welfare of children, or the designee of a parent
or other person with legal custody of an individual under 18 years of
age by written consent of the parent or designated custodian. The
protections against unlawful employment practices on the basis of
familial status also apply to an individual who is in the process of
securing legal custody of an individual under 18 years of age or who
is in the process of being given care and custody of an individual
under 18 years of age by a state or local governmental agency
responsible for the welfare of children.
SEC. 4. Section 12940 of the Government Code is amended to read:
12940. It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:
(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, familial status, sex,
age, or sexual orientation of any a
person, to refuse to hire or employ the person or to refuse to select
the person for a training program leading to employment, or to bar
or to discharge the person from employment or from a training program
leading to employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
with a physical or mental disability, where the employee, because of
his or her physical or mental disability, is unable to perform his or
her essential duties even with reasonable accommodations
accommodation , or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others another
even with reasonable accommodations
accommodation .
(2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations accommodation
, or cannot perform those duties in a manner that would not
endanger the employee's health or safety or the health or safety of
others another even with reasonable
accommodations accommodation . Nothing
in this part shall subject an employer to any
legal liability resulting from the refusal to employ or the discharge
of an employee who, because of the employee's medical condition, is
unable to perform his or her essential duties, or cannot perform
those duties in a manner that would not endanger the employee's
health or safety or the health or safety of others
another even with reasonable accommodations
accommodation .
(3) Nothing in this part relating to discrimination on account of
marital status or familial status shall do either of the
following:
(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
(B) Prohibit a bona fide health plans
plan from providing additional or greater
benefits to employees an employee with
dependents than to those employees an employee
without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam era veterans a Vietnam-era veteran
.
(5) Nothing in this part prohibits an employer from refusing to
employ an individual because of his or her age if the law compels or
provides for that refusal. Promotions A
promotion within the existing staff, hiring or promotion on the
basis of experience and training, rehiring on the basis of seniority
and prior service with the employer, or hiring under an established
recruiting program from a high schools
school , colleges college ,
universities university , or trade
schools school do not, in and of
themselves, constitute unlawful employment practices.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, familial status,
sex, age, or sexual orientation of any
a person, to exclude, expel , or restrict from its
membership the person, or to provide only second-class or segregated
membership or to discriminate against any a
person because of the race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, familial status, sex, age, or
sexual orientation of the person in the election of officers of the
labor organization or in the selection of the labor organization's
staff or to discriminate in any way against any of
its members or against any an employer
or against any a person employed by an
employer.
(c) For any a person to discriminate
against any a person in the selection
or training of that person in any an
apprenticeship training program or any other training program leading
to employment because of the race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, familial status, sex, age, or
sexual orientation of the person discriminated against.
(d) For any an employer or
employment agency to print or circulate or cause to be printed or
circulated any a publication, or to
make any a non-job-related inquiry of
an employee or applicant, either verbal or through use of an
application form, that expresses, directly or indirectly,
any a limitation, specification, or
discrimination as to race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition,
marital status, familial status, sex, age, or sexual
orientation, or any an intent to make
any such a limitation, specification
, or discrimination. Nothing in this part prohibits an
employer or employment agency from inquiring into the age of an
applicant, or from specifying age limitations, where the law compels
or provides for that action.
(e) (1) Except as provided in paragraph (2) or (3), for
any an employer or employment agency to require
any the medical or psychological
examination of an applicant, to make any a
medical or psychological inquiry of an applicant, to make
any an inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make any an inquiry regarding the
nature or severity of a physical disability, mental disability, or
medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant's request for
reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or make a
medical or psychological inquiry of a job applicant after an
employment offer has been made but prior to the commencement of
employment duties, provided that the examination or inquiry is
job-related and consistent with business necessity and that all
entering employees in the same job classification are subject to the
same examination or inquiry.
(f) (1) Except as provided in paragraph (2), for any
an employer or employment agency to require
any the medical or psychological
examination of an employee, to make any a
medical or psychological inquiry of an employee, to make
any an inquiry whether an employee has
a mental disability, physical disability, or medical condition, or to
make any an inquiry regarding the
nature or severity of a physical disability, mental disability, or
medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show to
be job-related and consistent with business necessity. An employer or
employment agency may conduct a voluntary medical
examinations examination , including
a voluntary medical histories
history , which that are part of
an employee health program available to employees
an employee at that worksite.
(g) For any an employer, labor
organization, or employment agency to harass, discharge, expel, or
otherwise discriminate against any a
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against a
hospital employees employee who
report reports suspected patient abuse
by a health facilities facility
or a community care facilities
facility .
(h) For any an employer, labor
organization, employment agency, or person to discharge, expel, or
otherwise discriminate against any a
person because the person has opposed any practices
a practice forbidden under this part or because
the person has filed a complaint, testified, or assisted in
any a proceeding under this part.
(i) For any a person to aid, abet,
incite, compel, or coerce the doing of any of the acts
an act forbidden under this part, or to attempt
to do so.
(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any a
training program leading to employment, or any other person,
because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, familial status, sex, age, or sexual orientation,
to harass an employee, an applicant, or a person providing services
pursuant to a contract. Harassment of an employee, an applicant, or a
person providing services pursuant to a contract by an employee,
other than an agent or supervisor, shall be unlawful if the entity,
or its agents or supervisors an agent or
supervisor of the entity , knows or should have known of this
conduct and fails to take immediate and appropriate corrective
action. An employer may also be responsible for the acts of
nonemployees a nonemployee , with respect to
sexual harassment of employees an employee
, applicants applicant , or
persons person providing services
pursuant to a contract in the workplace, where the employer, or
its agents or supervisors an agent or supervi
sor of the employer , knows or should have known of
the conduct and fails to take immediate and appropriate
corrective action. In reviewing
cases a case involving the acts of
nonemployees a nonemployee , the extent
of the employer's control and any other legal responsibility which
the employer may have with respect to the conduct of those
nonemployees the nonemployee shall be
considered. An entity shall take all reasonable steps to prevent
harassment from occurring. Loss of a tangible job
benefits benefit shall not be necessary in
order to establish harassment.
(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to
harassment.
(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by
this section that is perpetrated by the employee, regardless of
whether the employer or covered entity knows or should have known of
the conduct and fails to take immediate and appropriate corrective
action.
(4) (A) For purposes of this subdivision only, "employer" means
any a person regularly employing one or
more persons or regularly receiving the services of one or more
persons providing services pursuant to a contract, or any
a person acting as an agent of an employer,
directly or indirectly, the state, or any a
political or civil subdivision of the state, and cities. The
definition of "employer" in subdivision (d) of Section 12926 applies
to all provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit, except as provided in
Section 12926.2.
(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or a related medical
conditions condition .
(5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently
established business.
(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any a
training program leading to employment, to fail to take all
reasonable steps necessary to prevent discrimination and harassment
from occurring.
() For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a
training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's religious belief or observance and any
an employment requirement, unless the employer
or other entity covered by this part demonstrates that it has
explored any available reasonable alternative means of accommodating
the religious belief or observance, including the possibilities of
excusing the person from those duties that conflict with his or her
religious belief or observance or permitting those duties to be
performed at another time or by another person, but is unable to
reasonably accommodate the religious belief or observance without
undue hardship on the conduct of the business of the employer or
other entity covered by this part. Religious belief or observance, as
used in this section, includes, but is not limited to, observance of
a Sabbath or other religious holy day or days, and reasonable time
necessary for travel prior and subsequent to a religious observance.
(m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee. Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship to its operation.
(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations accommodation , if any, in
response to a request for reasonable accommodation by an employee or
applicant with a known physical or mental disability or known medical
condition.
(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any an
employee, applicant, or other person to a test for the presence of a
genetic characteristic.
SEC. 5. Section 12945.2 of the Government Code is amended to read:
12945.2. (a) Except as provided in subdivision (b), it shall be
an unlawful employment practice for any an
employer, as defined in paragraph (2) of subdivision (c), to
refuse to grant a request by any an
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 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 child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis who is either of the following:
(A) Under 18 years of age.
(B) An adult dependent child.
(2) "Employer" means either of the following:
(A) Any A person who directly
employs 50 or more persons to perform services for a wage or salary.
(B) The state, and any a 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 , or the serious health condition of a child
of the employee .
(B) Leave to care for a parent or , a
grandparent, a parent-in-law, a spouse , a domestic
partner, a sibling, or a child who has a serious health
condition. Such care includes :
(i) Providing supervision, transportation, psychological comfort,
or emotional comfort.
(ii) Addressing medical, educational, nutritional, hygienic, or
safety needs.
(iii) Attending to an illness, injury, mental disability, or
physical disability.
(C) Leave because of an employee's 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).
(6) "Health care provider" means any of the following:
(A) An individual holding either a physician's and surgeon's
certificate issued pursuant to Article 4 (commencing with Section
2080) of Chapter 5 of Division 2 of the Business and Professions
Code, an osteopathic physician's and surgeon's 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
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
employee's 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 employee's 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 a 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
of 1986 paragraph (1) of subdivision (b) of Section
5000 of Title 26 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 employee's 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 An employee taking leave
pursuant to subdivision (a) shall continue to be entitled to
participate in employee health plans for any
a period during which coverage is not provided by the employer
under paragraph (1), employee benefit plans, including life,
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,
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 a collective
bargaining agreement, or any a n
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 employee's 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 employee's 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 employee's request for
leave to care for a child, grandchild, a spouse,
or a domestic partner, a sibling, a parent
, a grandparent, or a parent-in-law 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 employee's request for
leave because of the employee's 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 employee's 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 a 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
employer's 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 a case in which the
second opinion described in subparagraph (A) differs from the opinion
in the original certification, the employer may require, at the
employer's 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 employee's return from leave taken
because of the employee's 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.
() It shall be an unlawful employment practice for an employer to
refuse to hire, or to discharge, fine, suspend, expel, or
discriminate against, any an individual
because of any of the following:
(1) An individual's exercise of the right to family care and
medical leave provided by subdivision (a).
(2) An individual's giving information or testimony as to his or
her own family care and medical leave, or another person's family
care and medical leave, in any an
inquiry or proceeding related to rights guaranteed under this
section.
(m) This section shall not be construed to require any
changes a change in an existing
collective bargaining agreements agreement
during the life of the contract, or until January 1, 1993,
whichever occurs first.
(n) The amendments made to this section by the act adding this
subdivision shall not be construed to require any changes
a change in an existing collective
bargaining agreements agreement during
the life of the contract, or until February 5, 1994, whichever occurs
first.
(o) The provisions of this section shall be construed as separate
and distinct from those of 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 a 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) (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 employer's 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 a 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) 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.
SEC. 6. Section 12955.2 of the Government Code is amended to read:
12955.2. For purposes of this part in connection with
unlawful housing practices , "familial status" means
one or more individuals an individual under 18
years of age who reside resides with a
parent, another person with care and legal custody of that
individual, a person who has been given care and custody of that
individual by a state or local governmental agency that is
responsible for the welfare of children, or the designee of that
parent or other person with legal custody of any individual under 18
years of age by written consent of the parent or designated
custodian. The protections afforded by this part against
discrimination on the basis of familial status also apply to
any an individual who is pregnant , who is in
the process of securing legal custody of any
an individual under 18 years of age, or who is in the process
of being given care and custody of any an
individual under 18 years of age by a state or local
governmental agency responsible for the welfare of children.
SEC. 7. The Legislature intends that nothing in these amendments
of Sections 12920, 12921, 12940, 12945.2, and 12955.2 of the
Government Code supersedes, limits, or preempts any provision of
federal, state, or local law that provides greater protections from
employment discrimination than those provided in these sections. The
Legislature further intends that these amendments not limit or
preclude any claim or cause of action on the basis of familial status
or family responsibilities under federal, state, or local law.