BILL NUMBER: AB 59	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Swanson

                        DECEMBER 7, 2010

   An act to amend Section 12945.2 of the Government Code, relating
to family and medical leave.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 59, as introduced, Swanson. Family and medical leave.
   Existing law, the Moore-Brown-Roberti Family Rights Act, makes it
an unlawful employment practice for an employer, as defined, to
refuse to grant a request by an eligible employee to take up to 12
workweeks of unpaid protected leave during any 12-month period (1) to
bond with a child who was born to, adopted by, or placed for foster
care with, the employee, (2) to care for the employee's parent,
spouse, or child who has a serious health condition, as defined, or
(3) because the employee is suffering from a serious health condition
rendering him or her unable to perform the functions of the job.
Under the act, "child" means a biological, adopted, foster, or
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under 18 years of age or an adult dependent
child. The act defines "parent" to mean the employee's biological,
foster, or adoptive parent, stepparent, legal guardian, or other
person who stood in loco parentis to the employee when the employee
was a child.
   This bill would increase the circumstances under which an employee
is entitled to protected leave pursuant to the Family Rights Act by
(1) eliminating the age and dependency elements from the definition
of "child," thereby permitting an employee to take protected leave to
care for his or her independent adult child suffering from a serious
health condition, (2) expanding the definition of "parent" to
include an employee's parent-in-law, and (3) permitting an employee
to also take leave to care for a seriously ill grandparent, sibling,
grandchild, or domestic partner, as defined.
   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 12945.2 of the Government Code is amended to
read:
   12945.2.  (a) Except as provided in subdivision (b), it 
shall be   is  an unlawful employment practice for
any employer, as defined in paragraph  (2)   (3)
 of subdivision (c), to refuse to grant a request by any
employee with more than 12 months of service with the employer, and
who has at least 1,250 hours of service with the employer during the
previous 12-month period, to take up to a total of 12 workweeks in
any 12-month period for family care and medical leave. Family care
and medical leave requested pursuant to this subdivision shall not be
deemed to have been granted unless the employer provides the
employee, upon granting the leave request, a guarantee of employment
in the same or a comparable position upon the termination of the
leave. The commission shall adopt a regulation specifying the
elements of a reasonable request.
   (b) Notwithstanding subdivision (a), it  shall not be
  is not  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)  "Domestic   partner" has the same meaning as set
forth in Section 297 of the Family Code. 
    (3)    "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 political or civil subdivision of the state
and cities. 
   (3) 
    (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)    "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  , grandparent, sibling, child,
grandchild, domestic partner, or  a  spouse
who has a serious health condition.
   (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) 
    (6)    "FMLA" means the federal Family and
Medical Leave Act of 1993 (P.L. 103-3). 
   (6) 
    (7)   "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) 
    (8)    "Parent" means a biological, foster, or
adoptive parent, a stepparent, a parent-in-law,  a legal
guardian, or other person who stood in loco parentis to the employee
when the employee was a child. 
   (8)  
   (9) "Parent-in-law" means the parent of a spouse or a domestic
partner. 
    (10)    "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. 
   (11) "Sibling" means a person related to another person by blood,
adoption, or affinity through a common legal or biological parent.

   (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,  grandparent, sibling, child, grandchild, domestic
partner,  or spouse with a serious health condition, unless
mutually agreed to by the employer and the employee.
   (f) (1) During any period that an eligible employee takes leave
pursuant to subdivision (a) or takes leave that qualifies as leave
taken under the FMLA, the employer shall maintain and pay for
coverage under a "group health plan," as defined in  Section
5000(b)(1)   paragraph (1) of subsection (b) of Section
5000 of Title 26  of the Internal Revenue Code  of 1986
 , 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)  (A)   Any employee taking leave pursuant to
subdivision (a) shall continue to be entitled to participate in
employee health plans for any period during which coverage is not
provided by the employer under paragraph (1), employee benefit plans,
including life, 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.
    (B)    For purposes of pension and retirement
plans, an employer shall not be required to make plan payments for an
employee during the leave period, and the leave period shall not be
required to be counted for purposes of time accrued under the plan.
However, an employee covered by a pension plan may continue to make
contributions in accordance with the terms of the plan during the
period of the leave.
   (g) During a family care and medical leave period, the employee
shall retain employee status with the employer, and the leave shall
not constitute a break in service, for purposes of longevity,
seniority under any collective bargaining agreement, or any employee
benefit plan. An employee returning from leave shall return with no
less seniority than the employee had when the leave commenced, for
purposes of layoff, recall, promotion, job assignment, and
seniority-related benefits such as vacation.
   (h) If the 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, a spouse, or a  parent
 , grandparent, sibling, child, grandchild, domestic partner, or
spouse  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 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 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.
   (  l  ) It  shall be   is  an
unlawful employment practice for an employer to refuse to hire, or to
discharge, fine, suspend, expel, or discriminate against, any
individual because of any of the following:
   (1) An 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 inquiry or proceeding related to
rights guaranteed under this section.
   (m) This section  shall not be construed to  
does not  require any changes in existing collective bargaining
agreements during the life of the contract, or until January 1,
1993, whichever occurs first.
   (n) The amendments made to this section by  the act adding
this subdivision   Chapter 827 of the Statutes of 1993
 shall not be construed to require any changes in existing
collective bargaining agreements during the life of the contract, or
until February 5, 1994, whichever occurs first.
   (o)  The provisions of this   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 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 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.