BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Senator Carol Liu, Chair
2015 - 2016 Regular
Bill No: AB 375
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|Author: |Campos |
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|Version: |May 4, 2015 Hearing |
| |Date: June 24, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Lenin Del Castillo |
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Subject: School employees: sick leave: paternity and
maternity leave
Note: This bill has been referred to the Committees on Education
and Appropriations. A "do pass" motion should include referral
to the Committee on Appropriations.
SUMMARY
This bill requires certificated school employees on maternity or
paternity leave to receive differential pay for up to 12 weeks
of unpaid family and medical leave.
BACKGROUND
Existing law:
1)Specifies during each school year, when a person employed in a
position requiring certification qualifications has exhausted
all available sick leave, including all accumulated sick
leave, and continues to be absent from his or her duties on
account of illness or accident for an additional period of
five school months, whether or not the absence arises out of
or in the course of the employment of the employee, the amount
deducted from the salary due to him or her for any of the
additional five months, in which the absence occurs shall not
exceed the sum that is actually paid a substitute employee
employed to fill his or her position during his or her absence
or, if no substitute employee was employed, the amount that
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would have been paid to the substitute had he or she been
employed. The school district shall make every reasonable
effort to secure the services of a substitute employee.
Specifies the following:
a) The sick leave, including accumulated sick leave, and
the five-month period shall run consecutively.
b) An employee shall not be provided more than one
five-month period per illness or accident. However, if a
school year terminates before the five-month period is
exhausted, the employee may take the balance of the
five-month period in a subsequent school year. (Education
Code § 44977)
2)Specifies that Section 44977 shall not apply to any school
district which adopts and maintains in effect a rule which
provides that when a person employed in a position requiring
certification qualifications is absent from his duties on
account of illness or accident for a period of five school
months or less whether or not the absence arises out of or in
the course of the employment of the employee, he shall receive
50 percent or more of his regular salary during the period of
such absence and nothing
in Section 44977 shall be construed as preventing the
governing board of any district from adopting any such rule.
When a person employed in a position requiring certification
qualifications is absent from his duties on account of illness
for a period of more than five school months, or when a person
is absent from his duties for a cause other than illness, the
amount deducted from the salary due him for the month in which
the absence occurs shall be determined according to the rules
and regulations established by the governing board of the
district. Such rules and regulations shall not conflict with
rules and regulations of the State Board of Education.
Nothing shall be construed so as to deprive any district,
city, or city and county of the right to make any reasonable
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rule for the regulation of accident or sick leave or
cumulative accident or sick leave without loss of salary for
persons requiring certification qualifications. This shall be
applicable whether or not the absence from duty is by reason
of a leave of absence granted by the governing board of the
employing district. (Education Code § 44983)
ANALYSIS
This bill:
1)During each school year, when a person employed in a position
requiring certification qualifications has exhausted all
available sick leave, including all accumulated sick leave,
and continues to be absent from his or her duties on account
of illness, accident, maternity leave or paternity leave for
an additional period of five school months, whether or not the
absence arises out of or in the course of the employment of
the employee, the amount deducted from the salary due him or
her for any of the additional five months in which the absence
occurs shall not exceed the sum that is actually paid a
substitute employee employed to fill his or her position
during his or her absence or, if no substitute employee was
employed, the amount that would have been paid to the
substitute had he or she been employed.
2)Specifies an employee shall not be provided more than one
five-month period per illness, accident, maternity leave or
paternity leave. However, if a school year terminates before
the five-month period is exhausted, the employee may take the
balance of the five-month period in a subsequent school year.
3)An employee on maternity or paternity leave pursuant to
Section 12945.2 of the Government Code shall not be denied
access to differential pay while on that leave.
4)To the extent that the changes made by this measure conflict
with a provision of a collective bargaining agreement entered
into by a public school employer and an exclusive bargaining
representative before January 1, 2016, the changes made by
this measure shall not apply until expiration or renewal of
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that collective bargaining agreement.
STAFF COMMENTS
1)Need for the bill. According to the author's office, "Forcing
teachers and other certificated employees to take entirely
unpaid leave after only six or eight weeks of
maternity leave, or none in the case of a new father, can lead
to several issues for the employee, the school district, and
society. Less parental leave has been positively correlated
with lower cognitive test scores and higher rates of
behavioral problems. A lack of proper postpartum support in
the form of reasonable parental leave tends to lead to a delay
in childhood immunizations, a decrease in the duration and
likelihood of breastfeeding, increased financial hardship, and
a higher chance of postpartum depression." The author's
office indicates that six or eight weeks is insufficient time
for a new parent to care for and bond with their child. If a
certificated employee wants to take off more time to spend
with their newborn, then they must take unpaid leave.
2)Protected leave. The federal Family Medical Leave Act (FMLA)
and the California Family Rights Act (CFRA) provide certain
employees up to 12 weeks of unpaid, job-protected leave a year
for the purpose of bonding with a child, care for a parent,
spouse, or child with a serious health condition, or due to an
employee's own serious health condition, and requires group
health benefits to be maintained during the leave as if
employees continued to work instead of taking leave. But
there is no pay associated with the FMLA and CFRA, other than
what the employee has earned in other accrued leaves that may
apply. The FMLA and CFRA are only employment protected
leaves.
3)Paid Family Leave (PFL). The PFL program extends disability
compensation to individuals (male or female) who take time off
work to care for a seriously ill child, spouse, parent,
domestic partner, or to bond with a new child, or a child in
connection with adoption or foster care placement. The PFL
program is a component of the State Disability Insurance (SDI)
program and workers covered by the SDI program are also
covered for this benefit. The maximum benefit is six times
the weekly benefit amount, with no more than six weeks of PFL
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benefits paid within any 12-month period. Employees may only
be eligible for the PFL program if they are covered by the SDI
program through a negotiated agreement with the State of
California. If an employee does not pay into the SDI program,
he or she would not be eligible to receive disability
compensation under PFL. In this scenario and assuming the
employee is on leave for bonding time, the employee would need
to use vacation time, sick leave, or personal necessity to
receive compensation or elect to take leave without pay.
4)Differential pay. Existing law authorizes that during the
time a certificated employee is on pregnancy disability leave
after the birth of a child, the employee may use sick leave
and after this is exhausted, can receive differential pay for
the remaining time. Once the disability leave period of 6-8
weeks is over, then the employee may start the 12 week leave
period under FMLA. During this time, the certificated
employee may be able to use accrued sick leave, but once that
time is exhausted, the certificated employee is unpaid for the
remaining weeks.
This bill requires school employers to pay differential pay
for certificated employees who take the 12 week FMLA maternity
or paternity leave. Differential pay is calculated by
subtracting the cost of a substitute employee from the
certificated employee's salary, e.g., if the certificated
employee makes $50,000 and the substitute cost is $35,000,
then the employee would be paid the difference of $15,000
during maternity or paternity leave, after exhausting all
accrued sick time.
5)Paid parental leave in other countries. A 2010 study by the
International Labor Organization of the United Nations found
that out of 167 countries studied, only four did not provide
paid maternity leave for women-Lesotho, Papua New Guinea,
Swaziland, and the United States. While these four countries
did provide some form of maternity leave, there was no
requirement that it be paid leave. As previously mentioned in
the analysis, the federal Family Medical Leave Act provides
for up to three months of unpaid maternity and/or paternity
leave.
6)Fiscal impact. According to the Assembly Appropriations
Committee, this bill would result in unknown Proposition
98/General Fund state mandated reimbursable costs associated
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with the expansion of the existing Differential Pay and
Reemployment mandate. This bill also results in increased
employer costs to provide differential pay to employees not
currently eligible for this benefit. Employer costs based on
the differential pay program should not exceed what is
normally paid to a school employee who would otherwise be
working; however, this bill may place additional cost
pressures on school district budgets to the extent they no
longer experience cost savings as a result of not paying
employees during a leave of absence due to maternity and
paternity leave.
7)Related and prior legislation.
AB 625 (Fong, Chapter 204, Statutes of 2014) allows a
community college faculty member to count a leave of absence,
including maternity and paternity leave, to his/her second,
third, or fourth contract year, as is required in a local
bargaining agreement.
AB 1606 (Chavez, Chapter 56, Statutes of 2014) allows
community college academic and classified employees to use up
to 30 days of leave, as specified, for the purpose of bonding
with a new child.
AB 1562 (Gomez, 2014) would have amended existing law
governing unpaid family and medical leave with respect to
public or private school employees, as specified. This bill
failed passage in the Senate Appropriations Committee.
SUPPORT
California Democrats for Education Reform
California Federation of Teachers
California Teachers Association
Luther Burbank Education Association
San Jose Teachers Association
South Bay Labor Council
United Teachers of Santa Clara
Letters from individuals
OPPOSITION
None received.
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