Amended in Senate April 23, 2015

Senate BillNo. 406


Introduced by Senator Jackson

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(Coauthor: Assembly Member Gonzalez)

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February 25, 2015


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

LEGISLATIVE COUNSEL’S DIGEST

SB 406, as amended, 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 thanbegin delete 5end deletebegin insert 25end insert 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 redefinebegin delete employerend deletebegin insert “employerend insertbegin insertend insert 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 abegin delete child of a domestic partner,end deletebegin insert biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis,end insert 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), it is an
4unlawful employment practice for an employer to refuse to grant
5a request by any employee with more than 12 months of service
6with the employer, and who has at least 1,250 hours of service
7with the employer during the previous 12-month period, to take
P3    1up to a total of 12 workweeks in any 12-month period for family
2care and medical leave. Family care and medical leave requested
3pursuant to this subdivision shall not be deemed to have been
4granted unless the employer provides the employee, upon granting
5the leave request, a guarantee of employment in the same or a
6comparable position upon the termination of the leave. The
7commission shall adopt a regulation specifying the elements of a
8reasonable request.

9(b) Notwithstanding subdivision (a), it shall not be an unlawful
10employment practice for an employer to refuse to grant a request
11for family care and medical leave by an employee if the employer
12employs fewer thanbegin delete fiveend deletebegin insert 25end insert employees within 75 miles of the
13worksite where that employee is employed.

14(c) For purposes of this section:

15(1) “Child” means a biological, adopted, or foster son or
16daughter, a stepchild, a legal ward, a son or daughter of a domestic
17partner, or a person to whom the employee stands in loco parentis.

18(2) “Employer” means either of the following:

19(A) Any person who directly employs five or more persons to
20perform services for a wage or salary.

21(B) The state, and any political or civil subdivision of the state
22and cities.

23(3) “Family care and medical leave” means any of the following:

24(A) Leave for reason of the birth of a child of the employee or
25the placement of a child with an employee in connection with the
26adoption or foster care of the child by the employee.

27(B) Leave to care for a child, parent, grandparent, grandchild,
28sibling, spouse, or domestic partner who has a serious health
29condition.

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

35(4) “Employment in the same or a comparable position” means
36employment in a position that has the same or similar duties and
37pay that can be performed at the same or similar geographic
38location as the position held prior to the leave.

39(5) “FMLA” means the federal Family and Medical Leave Act
40of 1993begin delete (P.L.end deletebegin insert (Public Lawend insert 103-3; 29 U.S.C. Sec. 2601 et seq.).

P4    1(6) “Health care provider” means any of the following:

2(A) An individual holding either a physician’s and surgeon’s
3certificate issued pursuant to Article 4 (commencing with Section
42080) of Chapter 5 of Division 2 of the Business and Professions
5Code, an osteopathic physician’s and surgeon’s certificate issued
6pursuant to Article 4.5 (commencing with Section 2099.5) of
7Chapter 5 of Division 2 of the Business and Professions Code, or
8an individual duly licensed as a physician, surgeon, or osteopathic
9physician or surgeon in another state or jurisdiction, who directly
10treats or supervises the treatment of the serious health condition.

11(B) Any other person determined by the United States Secretary
12of Labor to be capable of providing health care services under the
13FMLA.

14(7) “Parent” means a biological, foster, or adoptive parent, a
15parent-in-law, a stepparent, a legal guardian, or other person who
16stood in loco parentis to the employee when the employee was a
17child.

18(8) “Serious health condition” means an illness, injury,
19impairment, or physical or mental condition that involves either
20of the following:

21(A) Inpatient care in a hospital, hospice, or residential health
22care facility.

23(B) Continuing treatment or continuing supervision by a health
24care provider.

25(d) An employer shall not be required to pay an employee for
26any leave taken pursuant to subdivision (a), except as required by
27subdivision (e).

28(e) An employee taking a leave permitted by subdivision (a)
29may elect, or an employer may require the employee, to substitute,
30for leave allowed under subdivision (a), any of the employee’s
31accrued vacation leave or other accrued time off during this period
32or any other paid or unpaid time off negotiated with the employer.
33If an employee takes a leave because of the employee’s own serious
34health condition, the employee may also elect, or the employer
35may also require the employee, to substitute accrued sick leave
36during the period of the leave. However, an employee shall not
37use sick leave during a period of leave in connection with the birth,
38adoption, or foster care of a child, or to care for a child, parent, or
39spouse with a serious health condition, unless mutually agreed to
40by the employer and the employee.

P5    1(f) (1) During any period that an eligible employee takes leave
2pursuant to subdivision (a) or takes leave that qualifies as leave
3taken under the FMLA, the employer shall maintain and pay for
4coverage under a “group health plan,” as defined in Section
55000(b)(1) of the Internal Revenue Code, for the duration of the
6leave, not to exceed 12 workweeks in a 12-month period,
7commencing on the date leave taken under the FMLA commences,
8at the level and under the conditions coverage would have been
9provided if the employee had continued in employment
10continuously for the duration of the leave. Nothing in the preceding
11 sentence shall preclude an employer from maintaining and paying
12for coverage under a “group health plan” beyond 12 workweeks.
13An employer may recover the premium that the employer paid as
14required by this subdivision for maintaining coverage for the
15employee under the group health plan if both of the following
16conditions occur:

17(A) The employee fails to return from leave after the period of
18leave to which the employee is entitled has expired.

19(B) The employee’s failure to return from leave is for a reason
20other than the continuation, recurrence, or onset of a serious health
21condition that entitles the employee to leave under subdivision (a)
22or other circumstances beyond the control of the employee.

23(2) Any employee taking leave pursuant to subdivision (a) shall
24continue to be entitled to participate in employee health plans for
25any period during which coverage is not provided by the employer
26under paragraph (1), employee benefit plans, including life
27insurance or short-term or long-term disability or accident
28insurance, pension and retirement plans, and supplemental
29unemployment benefit plans to the same extent and under the same
30conditions as apply to an unpaid leave taken for any purpose other
31than those described in subdivision (a). In the absence of these
32conditions an employee shall continue to be entitled to participate
33in these plans and, in the case of health and welfare employee
34benefit plans, including life insurance or short-term or long-term
35disability or accident insurance, or other similar plans, the employer
36may, at his or her discretion, require the employee to pay
37premiums, at the group rate, during the period of leave not covered
38by any accrued vacation leave, or other accrued time off, or any
39other paid or unpaid time off negotiated with the employer, as a
40condition of continued coverage during the leave period. However,
P6    1the nonpayment of premiums by an employee shall not constitute
2a break in service, for purposes of longevity, seniority under any
3collective bargaining agreement, or any employee benefit plan.

4For purposes of pension and retirement plans, an employer shall
5not be required to make plan payments for an employee during
6the leave period, and the leave period shall not be required to be
7counted for purposes of time accrued under the plan. However, an
8employee covered by a pension plan may continue to make
9contributions in accordance with the terms of the plan during the
10period of the leave.

11(g) During a family care and medical leave period, the employee
12shall retain employee status with the employer, and the leave shall
13not constitute a break in service, for purposes of longevity, seniority
14under any collective bargaining agreement, or any employee benefit
15plan. An employee returning from leave shall return with no less
16seniority than the employee had when the leave commenced, for
17purposes of layoff, recall, promotion, job assignment, and
18seniority-related benefits such as vacation.

19(h) If the employee’s need for a leave pursuant to this section
20is foreseeable, the employee shall provide the employer with
21reasonable advance notice of the need for the leave.

22(i) If the employee’s need for leave pursuant to this section is
23foreseeable due to a planned medical treatment or supervision, the
24employee shall make a reasonable effort to schedule the treatment
25or supervision to avoid disruption to the operations of the employer,
26subject to the approval of the health care provider of the individual
27requiring the treatment or supervision.

28(j) (1) An employer may require that an employee’s request
29for leave to care for a child, a spouse, or a parent who has a serious
30health condition be supported by a certification issued by the health
31care provider of the individual requiring care. That certification
32shall be sufficient if it includes all of the following:

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

34(B) The probable duration of the condition.

35(C) An estimate of the amount of time that the health care
36provider believes the employee needs to care for the individual
37requiring the care.

38(D) A statement that the serious health condition warrants the
39participation of a family member to provide care during a period
40of the treatment or supervision of the individual requiring care.

P7    1(2) Upon expiration of the time estimated by the health care
2provider in subparagraph (C) of paragraph (1), the employer may
3require the employee to obtain recertification, in accordance with
4the procedure provided in paragraph (1), if additional leave is
5required.

6(k) (1) An employer may require that an employee’s request
7for leave because of the employee’s own serious health condition
8be supported by a certification issued by his or her health care
9provider. That certification shall be sufficient if it includes all of
10the following:

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

12(B) The probable duration of the condition.

13(C) A statement that, due to the serious health condition, the
14employee is unable to perform the function of his or her position.

15(2) The employer may require that the employee obtain
16subsequent recertification regarding the employee’s serious health
17condition on a reasonable basis, in accordance with the procedure
18provided in paragraph (1), if additional leave is required.

19(3) (A) In any case in which the employer has reason to doubt
20the validity of the certification provided pursuant to this section,
21the employer may require, at the employer’s expense, that the
22employee obtain the opinion of a second health care provider,
23designated or approved by the employer, concerning any
24information certified under paragraph (1).

25(B) The health care provider designated or approved under
26subparagraph (A) shall not be employed on a regular basis by the
27employer.

28(C) In any case in which the second opinion described in
29subparagraph (A) differs from the opinion in the original
30certification, the employer may require, at the employer’s expense,
31that the employee obtain the opinion of a third health care provider,
32designated or approved jointly by the employer and the employee,
33concerning the information certified under paragraph (1).

34(D) The opinion of the third health care provider concerning
35the information certified under paragraph (1) shall be considered
36to be final and shall be binding on the employer and the employee.

37(4) As a condition of an employee’s return from leave taken
38because of the employee’s own serious health condition, the
39employer may have a uniformly applied practice or policy that
40requires the employee to obtain certification from his or her health
P8    1care provider that the employee is able to resume work. Nothing
2in this paragraph shall supersede a valid collective bargaining
3agreement that governs the return to work of that employee.

4(l) It shall be an unlawful employment practice for an employer
5to refuse to hire, or to discharge, fine, suspend, expel, or
6discriminate against, any individual because of any of the
7following:

8(1) An individual’s exercise of the right to family care and
9medical leave provided by subdivision (a).

10(2) An individual’s giving information or testimony as to his or
11her own family care and medical leave, or another person’s family
12care and medical leave, in any inquiry or proceeding related to
13rights guaranteed under this section.

14(m) This section shall not be construed to require any changes
15in existing collective bargaining agreements during the life of the
16contract, or until January 1, 1993, whichever occurs first.

17(n) The amendments made to this section by Chapter 827 of the
18Statutes of 1993 shall not be construed to require any changes in
19existing collective bargaining agreements during the life of the
20contract, or until February 5, 1994, whichever occurs first.

21(o) This section shall be construed as separate and distinct from
22Section 12945.

23(p) Leave provided for pursuant to this section may be taken in
24one or more periods. The 12-month period during which 12
25workweeks of leave may be taken under this section shall run
26concurrently with the 12-month period under the FMLA, and shall
27commence the date leave taken under the FMLA commences.

28(q) (1) Notwithstanding subdivision (a), an employer may refuse
29to reinstate an employee returning from leave to the same or a
30comparable position if all of the following apply:

31(A) The employee is a salaried employee who is among the
32highest paid 10 percent of the employer’s employees who are
33employed within 75 miles of the worksite at which that employee
34is employed.

35(B) The refusal is necessary to prevent substantial and grievous
36economic injury to the operations of the employer.

37(C) The employer notifies the employee of the intent to refuse
38reinstatement at the time the employer determines the refusal is
39necessary under subparagraph (B).

P9    1(2) In any case in which the leave has already commenced, the
2employer shall give the employee a reasonable opportunity to
3return to work following the notice prescribed by subparagraph
4(C).

5(r) Leave taken by an employee pursuant to this section shall
6run concurrently with leave taken pursuant to the FMLA, except
7for any leave taken under the FMLA for disability on account of
8pregnancy, childbirth, or related medical conditions. The aggregate
9amount of leave taken under this section or the FMLA, or both,
10except for leave taken for disability on account of pregnancy,
11childbirth, or related medical conditions, shall not exceed 12
12 workweeks in a 12-month period. An employee is entitled to take,
13in addition to the leave provided for under this section and the
14FMLA, the leave provided for in Section 12945, if the employee
15is otherwise qualified for that leave.

16(s) It is an unlawful employment practice for an employer to
17interfere with, restrain, or deny the exercise of, or the attempt to
18exercise, any right provided under this section.



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