BILL NUMBER: AB 1001	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 14, 2009

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 amended, 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.  The bill would, for employment purposes, define
"familial status" as having or providing care for a child, domestic
partner, grandchild, grandparent, parent, parent-in-law, sibling, or
spouse.  
   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, an award of backpay,
reimbursement of out-of-pocket expenses, hiring, transfer,
reassignment, a grant of tenure, promotion, a cease and desist order,
posting of a notice, training of personnel, testing, expunging of
records, reporting of records, and any other similar relief that is
intended to correct an unlawful practice under this part.
   (b) "Age" refers to the chronological age of an individual who has
reached his or her 40th birthday.
   (c) "Employee" does not include an individual employed by his or
her parents, spouse, or child, or an individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
   (d) "Employer" includes a person regularly employing five or more
persons, or a person acting as an agent of an employer, directly or
indirectly, the state or 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 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, 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 description prepared before advertising or
interviewing 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 experience of a past incumbent in the job.
   (G) The current work experience of an incumbent in a similar job.
   (g) "Labor organization" includes an organization that exists and
is constituted for the purpose, in whole or in part, of collective
bargaining or of dealing with an employer concerning a grievance, the
terms or conditions of employment, or of other mutual aid or
protection.
   (h) "Medical condition" means either of the following:
   (1) 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) 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 the symptoms of 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
the symptoms of a disease or disorder.
   (i) "Mental disability" includes, but is not limited to, all of
the following:
   (1) Having 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 medication, an assistive device, or reasonable
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 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, 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 disorder,
compulsive gambling, kleptomania, pyromania, or a psychoactive
substance use disorder resulting from the current unlawful use of a
controlled substance or 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 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 medication, an assistive device, a prosthetic, or
reasonable 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, 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
disorder, compulsive gambling, kleptomania, pyromania, or a
psychoactive substance use disorder resulting from the current
unlawful use of a controlled substance or another drug.
   () Notwithstanding subdivisions (i) and (k), if the definition of
"disability" used in the Americans with Disabilities Act of 1990 (42
U.S.C. Sec. 12101 et seq.) would result in broader protection of the
civil rights of an individual with a mental disability or physical
disability, as defined in subdivision (i) or (k), or would include 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 an employee readily
accessible to, and usable by, an individual with a disability.
   (2) Job restructuring, a part-time or modified work schedule,
reassignment to a vacant position, acquisition or modification of
equipment or a device, adjustment or modification of an examination,
training material or policy, the provision of a qualified reader or
interpreter, and other similar accommodation for an individual with 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 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 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 facility involved in
the provision of the reasonable accommodation, the number of persons
employed at the facility, and the effect on expenses and resources or
the impact otherwise of 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.
   (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.   having or
providing care for any of the following:  
   (1) A child as defined in Section 3302 of the Unemployment
Insurance Code.  
   (2) A domestic partner as defined in Section 297 of the Family
Code.  
   (3) A grandchild.  
   (4) A grandparent.  
   (5) A parent as defined in Section 3302 of the Unemployment
Insurance Code.  
   (6) A parent-in-law, which means the parent of a spouse or
domestic partner.  
   (7) A sibling as defined in subdivision (c) of Section 362.1 of
the Welfare and Institutions Code.  
   (8) A spouse, which means the partner to a lawful marriage. 
  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 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 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 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 another even with reasonable 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 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 another even with reasonable accommodation.
Nothing in this part shall subject an employer to 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 another even with reasonable
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 plan from providing additional or
greater benefits to an employee with dependents than to 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 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. 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 school,
college, university, or trade 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 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 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 its members or against an employer or against a
person employed by an employer.
   (c) For a person to discriminate against a person in the selection
or training of that person in 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 an employer or employment agency to print or circulate or
cause to be printed or circulated a publication, or to make a
non-job-related inquiry of an employee or applicant, either verbal or
through use of an application form, that expresses, directly or
indirectly, 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 an intent to
make 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 an
employer or employment agency to require the medical or psychological
examination of an applicant, to make a medical or psychological
inquiry of an applicant, to make an inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make 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 an employer or
employment agency to require the medical or psychological examination
of an employee, to make a medical or psychological inquiry of an
employee, to make an inquiry whether an employee has a mental
disability, physical disability, or medical condition, or to make 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 examination,
including a voluntary medical history, that are part of an employee
health program available to an employee at that worksite.
   (g) For an employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against a person
because the person has made a report pursuant to Section 11161.8 of
the Penal Code that prohibits retaliation against a hospital employee
who reports suspected patient abuse by a health facility or a
community care facility.
   (h) For an employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against a
person because the person has opposed a practice forbidden under this
part or because the person has filed a complaint, testified, or
assisted in a proceeding under this part.
   (i) For a person to aid, abet, incite, compel, or coerce the doing
of 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 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 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 a nonemployee, with respect to sexual
harassment of an employee, applicant, or person providing services
pursuant to a contract in the workplace, where the employer, or an
agent or supervisor of the employer, knows or should have known of
the conduct and fails to take immediate and appropriate corrective
action. In reviewing a case involving the acts of 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 the
nonemployee shall be considered. An entity shall take all reasonable
steps to prevent harassment from occurring. Loss of a tangible job
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 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 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 a person acting as an agent of an employer, directly or
indirectly, the state, or 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 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 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 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
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, 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 an employer, as defined in
paragraph (2) of subdivision (c), to refuse to grant a request by 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) A person who directly employs 50 or more persons to perform
services for a wage or salary.
   (B) The state, and 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.
   (B) Leave to care for a parent, 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 leave
taken pursuant to subdivision (a), except as required by subdivision
(e).
   (e) An employee taking 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 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 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) An employee taking leave pursuant to subdivision (a) shall
continue to be entitled to participate in employee health plans for 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 a collective bargaining agreement, or an 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, 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 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 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, 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 an inquiry or proceeding related to rights
guaranteed under this section.
   (m) This section shall not be construed to require a change in an
existing collective bargaining 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 a change in an existing
collective bargaining 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 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 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 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.   SEC. 5.   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 an individual under 18
years of age who 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 an
individual who is pregnant , 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. 7.  SEC. 6.   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.