Senate BillNo. 406


Introduced by Senator Jackson

February 25, 2015


An act to amend Section 12945.2 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 406, as introduced, Jackson. Employment: leave.

The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for an employer 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, an employee is required to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12-month period. The act exempts from its provisions an employer that employs fewer than 50 employees within 75 miles of the worksite where the employee is employed (small business exemption). The act provides that if the same employer employs both parents entitled to leave under the act, the employer is not 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 the act.

The act defines “employer” to mean any person who directly employs 50 or more persons to perform services for a wage or salary or the state, any political or civil subdivision of the state, and cities. The act defines “child” to mean a biological, adopted, or foster child, a 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 “family care and medical leave” to mean, among other things, leave to care for a parent or a spouse who has a serious health condition. The act defines “parent” to mean 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.

This bill would restrict that small business exemption to an employer that employs fewer than 5 employees within 75 miles of the worksite where the employee is employed.

The bill would make various changes to the definitions described above, thereby expanding the persons and purposes for which leave is required to be provided under the act. The act would redefine employer to include any person who directly employs 5 or more persons to perform services for a wage or salary. The bill would redefine the term “child” to include a child of a domestic partner, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition. The bill would include a parent-in-law in the definition of “parent.”

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 12945.2 of the Government Code is
2amended to read:

3

12945.2.  

(a) Except as provided in subdivision (b), itbegin delete shall beend delete
4begin insert isend insert an unlawful employment practice forbegin delete any employer, as defined
5in paragraph (2) of subdivision (c),end delete
begin insert an employerend insert to refuse to grant
6a request by any employee with more than 12 months of service
7with the employer, and who has at least 1,250 hours of service
8with the employer during the previous 12-month period, to take
9up to a total of 12 workweeks in any 12-month period for family
10care and medical leave. Family care and medical leave requested
11pursuant to this subdivision shall not be deemed to have been
12granted unless the employer provides the employee, upon granting
13the leave request, a guarantee of employment in the same or a
P3    1comparable position upon the termination of the leave. The
2commission shall adopt a regulation specifying the elements of a
3reasonable request.

4(b) Notwithstanding subdivision (a), it shall not be an unlawful
5employment practice for an employer to refuse to grant a request
6for family care and medical leave by an employee if the employer
7employsbegin delete lessend deletebegin insert fewerend insert thanbegin delete 50end deletebegin insert fiveend insert employees within 75 miles of the
8worksite where that employee is employed.

9(c) For purposes of this section:

10(1) “Child” means a biological, adopted, or fosterbegin delete child,end deletebegin insert son or
11daughter,end insert
a stepchild, a legal ward,begin insert a son or daughter of a domestic
12partner,end insert
or abegin delete child of a person standing in loco parentis who is
13either of the following:end delete
begin insert person to whom the employee stands in
14loco parentis.end insert

begin delete

15(A) Under 18 years of age.

end delete
begin delete

16(B) An adult dependent child.

end delete

17(2) “Employer” means either of the following:

18(A) Any person who directly employsbegin delete 50end deletebegin insert fiveend insert or more persons
19to perform services for a wage or salary.

20(B) The state, and any political or civil subdivision of the state
21and cities.

22(3) “Family care and medical leave” means any of the following:

23(A) Leave for reason of the birth of a child of thebegin delete employee,end delete
24begin insert employee orend insert the placement of a child with an employee in
25connection with the adoption or foster care of the child by the
26begin delete employee, or the serious health condition of a child of theend delete
27 employee.

28(B) Leave to care for abegin delete parent or a spouseend deletebegin insert child, parent,
29grandparent, grandchild, sibling, spouse, or domestic partnerend insert
who
30has a serious health condition.

31(C) Leave because of an employee’s own serious health
32condition that makes the employee unable to perform the functions
33of the position of that employee, except for leave taken for
34disability on account of pregnancy, childbirth, or related medical
35conditions.

36(4) “Employment in the same or a comparable position” means
37employment in a position that has the same or similar duties and
38pay that can be performed at the same or similar geographic
39location as the position held prior to the leave.

P4    1(5) “FMLA” means the federal Family and Medical Leave Act
2of 1993begin delete (P.L. 103-3).end deletebegin insert (P.L. 103-3; 29 U.S.C. Sec. 2601 et seq.).end insert

3(6) “Health care provider” means any of the following:

4(A) An individual holding either a physician’s and surgeon’s
5certificate issued pursuant to Article 4 (commencing with Section
62080) of Chapter 5 of Division 2 of the Business and Professions
7Code, an osteopathic physician’s and surgeon’s certificate issued
8pursuant to Article 4.5 (commencing with Section 2099.5) of
9Chapter 5 of Division 2 of the Business and Professions Code, or
10an individual duly licensed as a physician, surgeon, or osteopathic
11physician or surgeon in another state or jurisdiction, who directly
12treats or supervises the treatment of the serious health condition.

13(B) Any other person determined by the United States Secretary
14of Labor to be capable of providing health care services under the
15FMLA.

16(7) “Parent” means a biological, foster, or adoptive parent,begin insert a
17parent-in-law,end insert
a stepparent, a legal guardian, or other person who
18stood in loco parentis to the employee when the employee was a
19child.

20(8) “Serious health condition” means an illness, injury,
21impairment, or physical or mental condition that involves either
22of the following:

23(A) Inpatient care in a hospital, hospice, or residential health
24care facility.

25(B) Continuing treatment or continuing supervision by a health
26care provider.

27(d) An employer shall not be required to pay an employee for
28any leave taken pursuant to subdivision (a), except as required by
29subdivision (e).

30(e) An employee taking a leave permitted by subdivision (a)
31may elect, or an employer may require the employee, to substitute,
32for leave allowed under subdivision (a), any of the employee’s
33accrued vacation leave or other accrued time off during this period
34or any other paid or unpaid time off negotiated with the employer.
35If an employee takes a leave because of the employee’s own serious
36health condition, the employee may also elect, or the employer
37may also require the employee, to substitute accrued sick leave
38during the period of the leave. However, an employee shall not
39use sick leave during a period of leave in connection with the birth,
40adoption, or foster care of a child, or to care for a child, parent, or
P5    1spouse with a serious health condition, unless mutually agreed to
2by the employer and the employee.

3(f) (1) During any period that an eligible employee takes leave
4pursuant to subdivision (a) or takes leave that qualifies as leave
5taken under the FMLA, the employer shall maintain and pay for
6coverage under a “group health plan,” as defined in Section
75000(b)(1) of the Internal Revenue Code, for the duration of the
8leave, not to exceed 12 workweeks in a 12-month period,
9commencing on the date leave taken under the FMLA commences,
10at the level and under the conditions coverage would have been
11provided if the employee had continued in employment
12continuously for the duration of the leave. Nothing in the preceding
13 sentence shall preclude an employer from maintaining and paying
14for coverage under a “group health plan” beyond 12 workweeks.
15An employer may recover the premium that the employer paid as
16required by this subdivision for maintaining coverage for the
17employee under the group health plan if both of the following
18conditions occur:

19(A) The employee fails to return from leave after the period of
20leave to which the employee is entitled has expired.

21(B) The employee’s failure to return from leave is for a reason
22other than the continuation, recurrence, or onset of a serious health
23condition that entitles the employee to leave under subdivision (a)
24or other circumstances beyond the control of the employee.

25(2) Any employee taking leave pursuant to subdivision (a) shall
26continue to be entitled to participate in employee health plans for
27any period during which coverage is not provided by the employer
28under paragraph (1), employee benefit plans, including life
29insurance or short-term or long-term disability or accident
30insurance, pension and retirement plans, and supplemental
31unemployment benefit plans to the same extent and under the same
32conditions as apply to an unpaid leave taken for any purpose other
33than those described in subdivision (a). In the absence of these
34conditions an employee shall continue to be entitled to participate
35in these plans and, in the case of health and welfare employee
36benefit plans, including life insurance or short-term or long-term
37disability or accident insurance, or other similar plans, the employer
38may, at his or her discretion, require the employee to pay
39premiums, at the group rate, during the period of leave not covered
40by any accrued vacation leave, or other accrued time off, or any
P6    1other paid or unpaid time off negotiated with the employer, as a
2condition of continued coverage during the leave period. However,
3the nonpayment of premiums by an employee shall not constitute
4a break in service, for purposes of longevity, seniority under any
5collective bargaining agreement, or any employee benefit plan.

6For purposes of pension and retirement plans, an employer shall
7not be required to make plan payments for an employee during
8the leave period, and the leave period shall not be required to be
9counted for purposes of time accrued under the plan. However, an
10employee covered by a pension plan may continue to make
11contributions in accordance with the terms of the plan during the
12period of the leave.

13(g) During a family care and medical leave period, the employee
14shall retain employee status with the employer, and the leave shall
15not constitute a break in service, for purposes of longevity, seniority
16under any collective bargaining agreement, or any employee benefit
17plan. An employee returning from leave shall return with no less
18seniority than the employee had when the leave commenced, for
19purposes of layoff, recall, promotion, job assignment, and
20seniority-related benefits such as vacation.

21(h) If the employee’s need for a leave pursuant to this section
22is foreseeable, the employee shall provide the employer with
23reasonable advance notice of the need for the leave.

24(i) If the employee’s need for leave pursuant to this section is
25foreseeable due to a planned medical treatment or supervision, the
26employee shall make a reasonable effort to schedule the treatment
27or supervision to avoid disruption to the operations of the employer,
28subject to the approval of the health care provider of the individual
29requiring the treatment or supervision.

30(j) (1) An employer may require that an employee’s request
31for leave to care for a child, a spouse, or a parent who has a serious
32health condition be supported by a certification issued by the health
33care provider of the individual requiring care. That certification
34shall be sufficient if it includes all of the following:

35(A) The date on which the serious health condition commenced.

36(B) The probable duration of the condition.

37(C) An estimate of the amount of time that the health care
38provider believes the employee needs to care for the individual
39requiring the care.

P7    1(D) A statement that the serious health condition warrants the
2participation of a family member to provide care during a period
3of the treatment or supervision of the individual requiring care.

4(2) Upon expiration of the time estimated by the health care
5provider in subparagraph (C) of paragraph (1), the employer may
6require the employee to obtain recertification, in accordance with
7the procedure provided in paragraph (1), if additional leave is
8required.

9(k) (1) An employer may require that an employee’s request
10for leave because of the employee’s own serious health condition
11be supported by a certification issued by his or her health care
12provider. That certification shall be sufficient if it includes all of
13the following:

14(A) The date on which the serious health condition commenced.

15(B) The probable duration of the condition.

16(C) A statement that, due to the serious health condition, the
17employee is unable to perform the function of his or her position.

18(2) The employer may require that the employee obtain
19subsequent recertification regarding the employee’s serious health
20condition on a reasonable basis, in accordance with the procedure
21provided in paragraph (1), if additional leave is required.

22(3) (A) In any case in which the employer has reason to doubt
23the validity of the certification provided pursuant to this section,
24the employer may require, at the employer’s expense, that the
25employee obtain the opinion of a second health care provider,
26designated or approved by the employer, concerning any
27information certified under paragraph (1).

28(B) The health care provider designated or approved under
29subparagraph (A) shall not be employed on a regular basis by the
30employer.

31(C) In any case in which the second opinion described in
32subparagraph (A) differs from the opinion in the original
33certification, the employer may require, at the employer’s expense,
34that the employee obtain the opinion of a third health care provider,
35designated or approved jointly by the employer and the employee,
36concerning the information certified under paragraph (1).

37(D) The opinion of the third health care provider concerning
38the information certified under paragraph (1) shall be considered
39to be final and shall be binding on the employer and the employee.

P8    1(4) As a condition of an employee’s return from leave taken
2because of the employee’s own serious health condition, the
3employer may have a uniformly applied practice or policy that
4requires the employee to obtain certification from his or her health
5care provider that the employee is able to resume work. Nothing
6in this paragraph shall supersede a valid collective bargaining
7agreement that governs the return to work of that employee.

8(l) It shall be an unlawful employment practice for an employer
9to refuse to hire, or to discharge, fine, suspend, expel, or
10discriminate against, any individual because of any of the
11following:

12(1) An individual’s exercise of the right to family care and
13medical leave provided by subdivision (a).

14(2) An individual’s giving information or testimony as to his or
15her own family care and medical leave, or another person’s family
16care and medical leave, in any inquiry or proceeding related to
17rights guaranteed under this section.

18(m) This section shall not be construed to require any changes
19in existing collective bargaining agreements during the life of the
20contract, or until January 1, 1993, whichever occurs first.

21(n) The amendments made to this section by Chapter 827 of the
22Statutes of 1993 shall not be construed to require any changes in
23existing collective bargaining agreements during the life of the
24contract, or until February 5, 1994, whichever occurs first.

25(o) This section shall be construed as separate and distinct from
26Section 12945.

27(p) Leave provided for pursuant to this section may be taken in
28one or more periods. The 12-month period during which 12
29workweeks of leave may be taken under this section shall run
30concurrently with the 12-month period under the FMLA, and shall
31commence the date leave taken under the FMLA commences.

begin delete

32(q) In any case in which both parents entitled to leave under
33subdivision (a) are employed by the same employer, the employer
34shall not be required to grant leave in connection with the birth,
35adoption, or foster care of a child that would allow the parents
36family care and medical leave totaling more than the amount
37specified in subdivision (a).

end delete
begin delete

38(r)

end delete

P9    1begin insert(q)end insert (1) Notwithstanding subdivision (a), an employer may refuse
2to reinstate an employee returning from leave to the same or a
3comparable position if all of the following apply:

4(A) The employee is a salaried employee who is among the
5highest paid 10 percent of the employer’s employees who are
6employed within 75 miles of the worksite at which that employee
7is employed.

8(B) The refusal is necessary to prevent substantial and grievous
9economic injury to the operations of the employer.

10(C) The employer notifies the employee of the intent to refuse
11reinstatement at the time the employer determines the refusal is
12necessary under subparagraph (B).

13(2) In any case in which the leave has already commenced, the
14employer shall give the employee a reasonable opportunity to
15return to work following the notice prescribed by subparagraph
16(C).

begin delete

17(s)

end delete

18begin insert(r)end insert Leave taken by an employee pursuant to this section shall
19run concurrently with leave taken pursuant to the FMLA, except
20for any leave taken under the FMLA for disability on account of
21pregnancy, childbirth, or related medical conditions. The aggregate
22amount of leave taken under this section or the FMLA, or both,
23except for leave taken for disability on account of pregnancy,
24childbirth, or related medical conditions, shall not exceed 12
25workweeks in a 12-month period. An employee is entitled to take,
26in addition to the leave provided for under this section and the
27FMLA, the leave provided for in Section 12945, if the employee
28is otherwise qualified for that leave.

begin delete

29(t)

end delete

30begin insert(s)end insert Itbegin delete shall beend deletebegin insert isend insert an unlawful employment practice for an
31employer to interfere with, restrain, or deny the exercise of, or the
32attempt to exercise, any right provided under this section.



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