BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 375| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 375 Author: Campos (D) Amended: 7/8/15 in Senate Vote: 21 SENATE EDUCATION COMMITTEE: 8-1, 6/24/15 AYES: Liu, Block, Hancock, Leyva, Mendoza, Monning, Pan, Vidak NOES: Runner SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15 AYES: Lara, Beall, Hill, Leyva, Mendoza NOES: Bates, Nielsen ASSEMBLY FLOOR: 58-22, 6/1/15 - See last page for vote SUBJECT: School employees: sick leave: paternity and maternity leave SOURCE: Author DIGEST: 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. ANALYSIS: Existing law: 1)Specifies during each school year, when a person employed in a AB 375 Page 2 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 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 AB 375 Page 3 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 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) This bill: 1)Provides that, 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 maternity leave or paternity leave for a period of up to twelve school weeks, 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 twelve weeks 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. The school district shall make every reasonable effort to secure the services of a substitute employee. 2)Specifies that the 12-week period shall be reduced by any period of sick leave, including accumulated sick leave, taken during a period of maternity or paternity leave, as specified. 3)Specifies that an employee shall not be provided more than one 12-week period per 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 12-week period in a subsequent school year. 4)Provides that an employee on maternity or paternity leave pursuant to Section 12945.2 of the Government Code shall not AB 375 Page 4 be denied access to differential pay while on that leave. 5)Provides that these provisions 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. 6)To the extent that the changes made by this bill 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, this bill shall not apply until expiration or renewal of that collective bargaining agreement. 7)Provides that for purposes of this section, maternity or paternity leave means 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. Comments 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. Protected leave. The federal Family Medical Leave Act (FMLA) AB 375 Page 5 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. 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 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. 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 six to eight 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 AB 375 Page 6 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. 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 FMLA provides for up to three months of unpaid maternity and/or paternity leave. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No According to the Senate Appropriations Committee, this bill could result in the 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. SUPPORT: (Verified8/29/15) American Federation of State, County and Municipal Employees California Democrats for Education Reform California Federation of Teachers California Teachers Association Future is Now Luther Burbank Education Association San Jose Teachers Association South Bay Labor Council South Bay Pride at Work United Teachers of Santa Clara AB 375 Page 7 OPPOSITION: (Verified8/27/15) Association of California School Administrators California School Boards Association ASSEMBLY FLOOR: 58-22, 6/1/15 AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, Mathis, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood, Atkins NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper, Jones, Kim, Maienschein, Mayes, Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron Prepared by:Lenin Del Castillo / ED. / (916) 651-4105 8/31/15 8:54:56 **** END ****