BILL NUMBER: AB 592	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 31, 2011
	AMENDED IN SENATE  JULY 1, 2011
	AMENDED IN ASSEMBLY  APRIL 25, 2011

INTRODUCED BY   Assembly Member Lara
    (   Coauthor:   Assembly Member  
Ammiano   ) 
    (  Coauthor:   Senator   Padilla
  ) 

                        FEBRUARY 16, 2011

   An act to amend Sections 12945 and 12945.2 of the Government Code,
relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 592, as amended, Lara. Employment: leave: interference,
restraint, and denial.
   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.
   Existing law makes it an unlawful employment practice, unless
based upon a bona fide occupational qualification, for an employer to
refuse to allow a female employee affected by pregnancy, childbirth,
or related medical conditions to take leave on account of pregnancy
for a reasonable period of time, not to exceed 4 months and
thereafter return to work. Leave under these provisions is in
addition to the leave provided under the Moore-Brown-Roberti Family
Rights Act.  Additionally, existing law makes it unlawful
employment practice for an employer to refuse to provide reasonable
accommodation for an employee for conditions related to pregnancy,
childbirth, or a related medical condition, if she so requests, with
the advice of her health care provider. 
   This bill would also make it an unlawful employment practice for
an employer to interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right provided under the above
provisions. This bill would also state that the changes made by this
bill to the above provisions are declaratory of existing law. 
   This bill would incorporate additional changes to Section 12945 of
the Government Code proposed by SB 299, to be operative only if SB
299 and this bill are both enacted, both bills become effective on or
before January 1, 2012, and this bill is enacted last. 
   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 of the Government Code is amended to
read:
   12945.  (a) In addition to the provisions that govern pregnancy,
childbirth, or  a  related medical  conditions
  condition  in Sections 12926 and 12940, each of
the following shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification:
   (1) For an employer to refuse to allow a female employee disabled
by pregnancy, childbirth, or  a  related medical 
conditions   condition  to take a leave for a
reasonable period of time not to exceed four months and thereafter
return to work, as set forth in the commission's regulations. The
employee shall be entitled to utilize any accrued vacation leave
during this period of time. Reasonable period of time means that
period during which the female employee is disabled on account of
pregnancy, childbirth, or  a  related medical 
conditions   condition  .
   An employer may require an employee who plans to take a leave
pursuant to this subdivision to give the employer reasonable notice
of the date the leave shall commence and the estimated duration of
the leave.
   (2) (A) For an employer to refuse to provide reasonable
accommodation for an employee for  conditions  
a condition  related to pregnancy, childbirth, or  a 
related medical  conditions   condition  ,
if she so requests, with the advice of her health care provider.
   (B) For an employer who has a policy, practice, or collective
bargaining agreement requiring or authorizing the transfer of
temporarily disabled employees to less strenuous or hazardous
positions for the duration of the disability to refuse to transfer a
pregnant female employee who so requests.
   (C) For an employer to refuse to temporarily transfer a pregnant
female employee to a less strenuous or hazardous position for the
duration of her pregnancy if she so requests, with the advice of her
physician, where that transfer can be reasonably accommodated.
However, no employer shall be required by this section to create
additional employment that the employer would not otherwise have
created, nor shall the employer be required to discharge any
employee, transfer any employee with more seniority, or promote any
employee who is not qualified to perform the job.
   (3) For an employer to interfere with, restrain, or deny the
exercise of, or the attempt to exercise, any right provided under
this section.
   (b) This section shall not be construed to affect any other
provision of law relating to sex discrimination or pregnancy, or in
any way to diminish the coverage of pregnancy, childbirth, or  a
 medical  conditions   condition 
related to pregnancy or childbirth under any other 
provisions   provision  of this part, including
subdivision (a) of Section 12940.
   SEC. 1.5.    Section 12945 of the  
Government Code   is amended to read: 
   12945.   (a)    In addition to the provisions
that govern pregnancy, childbirth, or  a  related medical
 conditions   condition  in Sections 12926
and 12940,  it   each of the following 
shall be an unlawful employment practice, unless based upon a bona
fide occupational qualification: 
   (a) 
    (1)  For an employer to refuse to allow a female
employee disabled by pregnancy, childbirth, or  a  related
medical  conditions   condition  to take a
leave for a reasonable period of time not to exceed four months and
thereafter return to work, as set forth in the commission's
regulations. The employee shall be entitled to utilize any accrued
vacation leave during this period of time. Reasonable period of time
means that period during which the female employee is disabled on
account of pregnancy, childbirth, or  a  related medical
 conditions   condition  .
   An employer may require an employee who plans to take a leave
pursuant to this subdivision to give the employer reasonable notice
of the date the leave shall commence and the estimated duration of
the leave. 
   (2) (A) For an employer to refuse to maintain and pay for coverage
for an eligible female employee who takes leave pursuant to
paragraph (1) under a group health plan, as defined in Section 5000
(b)(1) of the Internal Revenue Code of 1986, for the duration of the
leave, not to exceed four months over the course of a 12-month
period, commencing on the date the leave taken under paragraph (1)
begins, at the level and under the conditions that coverage would
have been provided if the employee had continued in employment
continuously for the duration of the leave. Nothing in this paragraph
shall preclude an employer from maintaining and paying for coverage
under a group health plan beyond four months. An employer may recover
from the employee the premium that the employer paid as required
under this subdivision for maintaining coverage for the employee
under the group health plan if both of the following conditions
occur:  
   (i) The employee fails to return from leave after the period of
leave to which the employee is entitled has expired.  
   (ii) The employee's failure to return from leave is for a reason
other than one of the following:  
   (I) The employee taking leave under the Moore-Brown-Roberti Family
Rights Act (Sections 12945.2 and 19702.3 of the Government Code).
 
   (II) The continuation, recurrence, or onset of a health condition
that entitles the employee to leave under paragraph (1) or other
circumstance beyond the control of the employee.  
   (B) If the employer is a state agency, the collective bargaining
agreement shall govern with respect to the continued receipt by an
eligible female employee of the health care coverage specified in
subparagraph (A).  
   (b) (1) 
    (3)     (A)    For an
employer to refuse to provide reasonable accommodation for an
employee for  conditions   a condition 
related to pregnancy, childbirth, or  a  related medical
 conditions   condition  , if she so
requests, with the advice of her health care provider. 
   (2) 
    (B)  For an employer who has a policy, practice, or
collective bargaining agreement requiring or authorizing the transfer
of temporarily disabled employees to less strenuous or hazardous
positions for the duration of the disability to refuse to transfer a
pregnant female employee who so requests. 
   (3) 
    (C)  For an employer to refuse to temporarily transfer a
pregnant female employee to a less strenuous or hazardous position
for the duration of her pregnancy if she so requests, with the advice
of her physician, where that transfer can be reasonably
accommodated. However, no employer shall be required by this section
to create additional employment that the employer would not otherwise
have created, nor shall the employer be required to discharge any
employee, transfer any employee with more seniority, or promote any
employee who is not qualified to perform the job. 
   (4) For an employer to interfere with, restrain, or deny the
exercise of, or the attempt to exercise, any right provided under
this section.  
   (c) 
    (b)  This section shall not be construed to affect any
other provision of law relating to sex discrimination or pregnancy,
or in any way to diminish the coverage of pregnancy, childbirth, or
 a  medical  conditions   condition
 related to pregnancy or childbirth under any other 
provisions   provision  of this part, including
subdivision (a) of Section 12940.
  SEC. 2.  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 employer, as defined in
paragraph (2) 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 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 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) "Family care and medical leave" means any of the following:
   (A) Leave for reason of the birth of a child of the employee, 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 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) "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 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, 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 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 insurance
or 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 insurance
or 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 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 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 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 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 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) This section shall be construed as separate and distinct from
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.
   (t) It shall be an unlawful employment practice for an employer to
interfere with, restrain, or deny the exercise of, or the attempt to
exercise, any right provided under this section.
  SEC. 3.  The amendments made by this act do not constitute changes
in, but are declaratory of, existing law.
   SEC. 4.    Section 1.5 of this bill incorporates
amendments to Section 12945 of the Government Code proposed by both
this bill and Senate Bill 299. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2012, (2) each bill amends Section 12945 of the Government Code, and
(3) this bill is enacted after Senate Bill 299, in which case Section
1 of this bill shall not become operative.