BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 375 (Campos) - School employees: sick leave: paternity and
maternity leave.
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|Version: July 8, 2015 |Policy Vote: ED. 8 - 1 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Jillian Kissee |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: This bill expands the instances in which differential
pay is provided for purposes of maternity and paternity leave to
include the 12 workweek protected leave.
Fiscal
Impact:
Potential expansion of the existing Differential Pay and
Reemployment mandate for one-time activities to modify current
processes to include differential pay for maternity and
paternity protected leave which could drive costs in the tens
of thousands statewide. To the extent this bill imposes a
mandate this could create pressure to increase the K-12
mandate block grant. (Proposition 98)
Background:
AB 375 (Campos) Page 1 of
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Differential Pay
Existing law provides differential pay to certificated employees
for illness or accident. It specifies that when a person
employed in a position requiring certification qualifications
has exhausted all available sick leave, and continues to be
absent from their duties due to illness or accident for an
additional period of five school months, the amount deducted
from the employee's salary for any of the additional five
months, must not exceed the sum that is actually paid a
substitute employed to cover for the absence. Existing law
specifies the following:
a) 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. (Education Code
§ 44977)
Existing law also requires that any employee has the right to
use sick leave and to obtain differential pay for absences
necessitated by pregnancy, miscarriage, childbirth, and
recovery. (Education Code § 44978)
Pregnancy Disability Leave
Existing law provides that it is unlawful to refuse to allow a
female employee disabled by pregnancy, childbirth, or a related
medical condition to take leave not to exceed four months. The
employee is entitled to use vacation leave during this time.
Once the vacation time is exhausted, the employee can receive
differential pay for the remaining time, for up to five months.
(Government Code § 12945 and Education Code § 44977)
Protected Leave
Existing law also prohibits, except under certain circumstances,
the refusal to grant a request by any employee with a certain
amount of service to take up to a total of 12 workweeks in a 12
month period for family care and medical leave. The employer is
required to provide the employee a guarantee of employment in
the same or comparable position upon the termination of the
leave. The law specifies that this protected leave is separate
and distinct from the pregnancy disability leave. Once an
employee is cleared to return to work by a physician, the
employee may take this protected leave. (Government Code §
AB 375 (Campos) Page 2 of
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12945.2)
The federal Family Medical Leave Act (FMLA) and the California
Family Rights Act (CFRA) provides this unpaid, job-protected
leave for the purpose of bonding with a child, caring 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 the
employee's accrued vacation or other accrued time off that may
apply. Once that time is exhausted, the certificated employee
is unpaid for the remaining weeks. The FMLA and CFRA are only
employment protected leaves.
Certificated Employees
Certificated employees belong to the California Teachers
Association (CTA) and include, teachers, speech therapists,
school psychologists, nurses, and similar classifications.
Administrators are certificated employees who are not teachers
or student services personnel. Administrators include
principals, assistant principals, program directors or
coordinators, and other certificated staff members who are not
providing direct services to students.
Proposed Law:
This bill expands the instances in which differential pay is
provided for purposes of maternity and paternity leave to
include the 12 workweek protected leave.
Specifically, this bill provides that when a certificated
employee has exhausted all available sick leave and continues to
be absent from their duties due to maternity and paternity leave
pursuant to the CFRA, for a period of up to 12 school weeks, the
amount deducted from the employee's salary for any of the
additional 12 weeks, must not exceed the sum that is paid a
substitute employee to fill in for the absence.
The bill also provides that:
The 12 week period is offset by the use of any period of sick
leave during this time.
Not more than one 12 week period per maternity or paternity
leave is to be provided.
AB 375 (Campos) Page 3 of
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Employees on maternity or paternity protected leave must not
be denied access to differential pay.
Finally, this bill provides that if its provisions conflict with
a provision of a collective bargaining agreement entered into
before January 1, 2016, they do not apply until expiration or
renewal of that collective bargaining agreement.
Related
Legislation: 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 this committee.
Staff
Comments: This bill expands the provision of differential pay
to include those on both maternity and paternity protected leave
who are currently ineligible for this benefit under existing
law. The extent to which certificated employees will access
this new benefit is unknown. Currently, after the employee's
sick leave is depleted, any remaining time that the employee is
absent during protected leave would be unpaid. The expanded
differential pay requirement will likely provide employees on
maternity and paternity leave an incentive to be absent longer
than they otherwise would have been if they were not paid during
this time. However, the strength of this incentive will depend
on the how long the employee can go without earning his or her
full salary.
In 2003, the Commission on State Mandates (Commission) approved
a mandate related to differential pay and reemployment lists for
employees on differential leave pay. A test claim was submitted
in response to a statute enacted in 1998 that required when
calculating differential pay, sick leave, including accumulated
sick leave, and the five-month period of differential pay shall
run consecutively. Prior to this statute, there was an
interpretation that accumulated sick leave ran concurrently with
the five months entitlement to differential pay. This law
likely increased costs to school districts as they were no
longer allowed to offset the five months differential pay with
any accumulated sick leave the employee might have. However,
the Commission ruled that this change in calculation, while it
may increase costs to school districts in some instances, it
AB 375 (Campos) Page 4 of
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does not require an associated increased level of service to the
public. Therefore, reimbursement of salaries related to
providing differential pay was not approved.
The Commission did, however, determine administrative activities
related to the change in calculating differential pay to be
reimbursable. Therefore, it could be assumed that the cost of
similar activities could also be claimed as a result of this
bill, such as one-time workload to modify existing processes to
conform to the new law. If half of the state's school districts
spent 2 hours at a rate of $60 per hour, including benefits, on
this work, the state could be liable for reimbursement costs in
about the tens of thousands.
If enacted, school districts may experience significant costs
pressures related to providing a benefit that was not previously
required. They will not realize the savings attributed to
unpaid maternity and paternity protected leave that they
currently experience. Costs will ultimately be dependent upon
the amount of sick leave taken by applicable employees and how
long they remain absent and obtain differential pay. However,
employer costs based on the differential pay program should not
exceed what is normally paid to a school employee who would
otherwise be working.
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