Amended in Assembly September 2, 2015

Amended in Senate June 1, 2015

Amended in Senate April 23, 2015

Senate BillNo. 406


Introduced by Senator Jackson

(begin deleteCoauthor: end deletebegin insertCoauthors: end insertAssemblybegin delete Memberend deletebegin insert Members Gomez andend insert Gonzalez)

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 than 25 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 25 or more persons to perform services for a wage or salary. The bill would redefine the term “child” to include a 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, 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:

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SECTION 1.  

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

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12945.2.  

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

14(b) Notwithstanding subdivision (a), it shall not be an unlawful
15employment practice for an employer to refuse to grant a request
16for family care and medical leave by an employee if the employer
17employs fewer than 25 employees within 75 miles of the worksite
18where that employee is employed.

19(c) For purposes of this section:

20(1) “Child” means a biological, adopted, or foster son or
21daughter, a stepchild, a legal ward, a son or daughter of a domestic
22partner, or a person to whom the employee stands in loco parentis.

23(2) “Employer” means either of the following:

24(A) Any person who directly employs 25 or more persons to
25perform services for a wage or salary.

26(B) The state, and any political or civil subdivision of the state
27and cities.

28(3) “Family care and medical leave” means any of the following:

29(A) Leave for reason of the birth of a child of the employee or
30the placement of a child with an employee in connection with the
31adoption or foster care of the child by the employee.

32(B) Leave to care for a child, parent, grandparent, grandchild,
33sibling, spouse, or domestic partner who has a serious health
34condition.

35(C) Leave because of an employee’s own serious health
36condition that makes the employee unable to perform the functions
37of the position of that employee, except for leave taken for
38disability on account of pregnancy, childbirth, or related medical
39conditions.

P4    1(4) “Employment in the same or a comparable position” means
2employment in a position that has the same or similar duties and
3pay that can be performed at the same or similar geographic
4location as the position held prior to the leave.

5(5) “FMLA” means the federal Family and Medical Leave Act
6of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).

7(6) “Health care provider” means any of the following:

8(A) An individual holding either a physician’s and surgeon’s
9certificate issued pursuant to Article 4 (commencing with Section
102080) of Chapter 5 of Division 2 of the Business and Professions
11Code, an osteopathic physician’s and surgeon’s certificate issued
12pursuant to Article 4.5 (commencing with Section 2099.5) of
13Chapter 5 of Division 2 of the Business and Professions Code, or
14an individual duly licensed as a physician, surgeon, or osteopathic
15physician or surgeon in another state or jurisdiction, who directly
16treats or supervises the treatment of the serious health condition.

17(B) Any other person determined by the United States Secretary
18of Labor to be capable of providing health care services under the
19FMLA.

20(7) “Parent” means a biological, foster, or adoptive parent, a
21parent-in-law, a stepparent, a legal guardian, or other person who
22stood in loco parentis to the employee when the employee was a
23child.

24(8) “Serious health condition” means an illness, injury,
25impairment, or physical or mental condition that involves either
26of the following:

27(A) Inpatient care in a hospital, hospice, or residential health
28care facility.

29(B) Continuing treatment or continuing supervision by a health
30care provider.

31(d) An employer shall not be required to pay an employee for
32any leave taken pursuant to subdivision (a), except as required by
33subdivision (e).

34(e) An employee taking a leave permitted by subdivision (a)
35may elect, or an employer may require the employee, to substitute,
36for leave allowed under subdivision (a), any of the employee’s
37accrued vacation leave or other accrued time off during this period
38or any other paid or unpaid time off negotiated with the employer.
39If an employee takes a leave because of the employee’s own serious
40health condition, the employee may also elect, or the employer
P5    1may also require the employee, to substitute accrued sick leave
2during the period of the leave. However, an employee shall not
3use sick leave during a period of leave in connection with the birth,
4adoption, or foster care of a child, or to care for a child, parent, or
5spouse with a serious health condition, unless mutually agreed to
6by the employer and the employee.

7(f) (1) During any period that an eligible employee takes leave
8pursuant to subdivision (a) or takes leave that qualifies as leave
9taken under the FMLA, the employer shall maintain and pay for
10coverage under a “group health plan,” as defined in Section
115000(b)(1) of the Internal Revenue Code, for the duration of the
12leave, not to exceed 12 workweeks in a 12-month period,
13commencing on the date leave taken under the FMLA commences,
14at the level and under the conditions coverage would have been
15provided if the employee had continued in employment
16continuously for the duration of the leave. Nothing in the preceding
17 sentence shall preclude an employer from maintaining and paying
18for coverage under a “group health plan” beyond 12 workweeks.
19An employer may recover the premium that the employer paid as
20required by this subdivision for maintaining coverage for the
21employee under the group health plan if both of the following
22conditions occur:

23(A) The employee fails to return from leave after the period of
24leave to which the employee is entitled has expired.

25(B) The employee’s failure to return from leave is for a reason
26other than the continuation, recurrence, or onset of a serious health
27condition that entitles the employee to leave under subdivision (a)
28or other circumstances beyond the control of the employee.

29(2) begin insert(A)end insertbegin insertend insertAny employee taking leave pursuant to subdivision (a)
30shall continue to be entitled to participate in employee health plans
31for any period during which coverage is not provided by the
32employer under paragraph (1), employee benefit plans, including
33life insurance or short-term or long-term disability or accident
34insurance, pension and retirement plans, and supplemental
35unemployment benefit plans to the same extent and under the same
36conditions as apply to an unpaid leave taken for any purpose other
37than those described in subdivision (a). In the absence of these
38conditions an employee shall continue to be entitled to participate
39in these plans and, in the case of health and welfare employee
40benefit plans, including life insurance or short-term or long-term
P6    1disability or accident insurance, or other similar plans, the employer
2begin delete may,end delete at his or her discretion,begin insert mayend insert require the employee to pay
3premiums, at the group rate, during the period of leave not covered
4by any accrued vacation leave, or other accrued time off, or any
5other paid or unpaid time off negotiated with the employer, as a
6condition of continued coverage during the leave period. However,
7the nonpayment of premiums by an employee shall not constitute
8a break in service, for purposes of longevity, seniority under any
9collective bargaining agreement, or any employee benefit plan.

begin delete

10 For

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11begin insert(B)end insertbegin insertend insertbegin insertForend insert purposes of pension and retirement plans, an employer
12shall not be required to make plan payments for an employee
13during the leave period, and the leave period shall not be required
14to be counted for purposes of time accrued under the plan.
15However, an employee covered by a pension plan may continue
16to make contributions in accordance with the terms of the plan
17during the period of the leave.

18(g) During a family care and medical leave period, the employee
19shall retain employee status with the employer, and the leave shall
20not constitute a break in service, for purposes of longevity, seniority
21under any collective bargaining agreement, or any employee benefit
22plan. An employee returning from leave shall return with no less
23seniority than the employee had when the leave commenced, for
24purposes of layoff, recall, promotion, job assignment, and
25seniority-related benefits such as vacation.

26(h) If the employee’s need for a leave pursuant to this section
27is foreseeable, the employee shall provide the employer with
28reasonable advance notice of the need for the leave.

29(i) If the employee’s need for leave pursuant to this section is
30foreseeable due to a planned medical treatment or supervision, the
31employee shall make a reasonable effort to schedule the treatment
32or supervision to avoid disruption to the operations of the employer,
33subject to the approval of the health care provider of the individual
34requiring the treatment or supervision.

35(j) (1) An employer may require that an employee’s request
36for leave to care for a child, a spouse, or a parent who has a serious
37health condition be supported by a certification issued by the health
38care provider of the individual requiring care. That certification
39shall be sufficient if it includes all of the following:

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

P7    1(B) The probable duration of the condition.

2(C) An estimate of the amount of time that the health care
3provider believes the employee needs to care for the individual
4requiring the care.

5(D) A statement that the serious health condition warrants the
6participation of a family member to provide care during a period
7of the treatment or supervision of the individual requiring care.

8(2) Upon expiration of the time estimated by the health care
9provider in subparagraph (C) of paragraph (1), the employer may
10require the employee to obtain recertification, in accordance with
11the procedure provided in paragraph (1), if additional leave is
12required.

13(k) (1) An employer may require that an employee’s request
14for leave because of the employee’s own serious health condition
15be supported by a certification issued by his or her health care
16provider. That certification shall be sufficient if it includes all of
17the following:

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

19(B) The probable duration of the condition.

20(C) A statement that, due to the serious health condition, the
21employee is unable to perform the function of his or her position.

22(2) The employer may require that the employee obtain
23subsequent recertification regarding the employee’s serious health
24condition on a reasonable basis, in accordance with the procedure
25provided in paragraph (1), if additional leave is required.

26(3) (A) In any case in which the employer has reason to doubt
27the validity of the certification provided pursuant to this section,
28the employer may require, at the employer’s expense, that the
29employee obtain the opinion of a second health care provider,
30designated or approved by the employer, concerning any
31information certified under paragraph (1).

32(B) The health care provider designated or approved under
33subparagraph (A) shall not be employed on a regular basis by the
34employer.

35(C) In any case in which the second opinion described in
36subparagraph (A) differs from the opinion in the original
37certification, the employer may require, at the employer’s expense,
38that the employee obtain the opinion of a third health care provider,
39designated or approved jointly by the employer and the employee,
40concerning the information certified under paragraph (1).

P8    1(D) The opinion of the third health care provider concerning
2the information certified under paragraph (1) shall be considered
3to be final and shall be binding on the employer and the employee.

4(4) As a condition of an employee’s return from leave taken
5because of the employee’s own serious health condition, the
6employer may have a uniformly applied practice or policy that
7requires the employee to obtain certification from his or her health
8care provider that the employee is able to resume work. Nothing
9in this paragraph shall supersede a valid collective bargaining
10agreement that governs the return to work of that employee.

11(l) It shall be an unlawful employment practice for an employer
12to refuse to hire, or to discharge, fine, suspend, expel, or
13discriminate against, any individual because of any of the
14following:

15(1) An individual’s exercise of the right to family care and
16medical leave provided by subdivision (a).

17(2) An individual’s giving information or testimony as to his or
18her own family care and medical leave, or another person’s family
19care and medical leave, in any inquiry or proceeding related to
20rights guaranteed under this section.

21(m) This section shall not be construed to require any changes
22in existing collective bargaining agreements during the life of the
23contract, or until January 1, 1993, whichever occurs first.

24(n) The amendments made to this section by Chapter 827 of the
25Statutes of 1993 shall not be construed to require any changes in
26existing collective bargaining agreements during the life of the
27contract, or until February 5, 1994, whichever occurs first.

28(o) This section shall be construed as separate and distinct from
29Section 12945.

30(p) Leave provided for pursuant to this section may be taken in
31one or more periods. The 12-month period during which 12
32workweeks of leave may be taken under this section shall run
33concurrently with the 12-month period under the FMLA, and shall
34commence the date leave taken under the FMLA commences.

35(q) (1) Notwithstanding subdivision (a), an employer may refuse
36to reinstate an employee returning from leave to the same or a
37comparable position if all of the following apply:

38(A) The employee is a salaried employee who is among the
39highest paid 10 percent of the employer’s employees who are
P9    1employed within 75 miles of the worksite at which that employee
2is employed.

3(B) The refusal is necessary to prevent substantial and grievous
4economic injury to the operations of the employer.

5(C) The employer notifies the employee of the intent to refuse
6reinstatement at the time the employer determines the refusal is
7necessary under subparagraph (B).

8(2) In any case in which the leave has already commenced, the
9employer shall give the employee a reasonable opportunity to
10return to work following the notice prescribed by subparagraph
11(C).

12(r) Leave taken by an employee pursuant to this section shall
13run concurrently with leave taken pursuant to the FMLA, except
14for any leave taken under the FMLA for disability on account of
15pregnancy, childbirth, or related medical conditions. The aggregate
16amount of leave taken under this section or the FMLA, or both,
17except for leave taken for disability on account of pregnancy,
18childbirth, or related medical conditions, shall not exceed 12
19workweeks in a 12-month period. An employee is entitled to take,
20in addition to the leave provided for under this section and the
21FMLA, the leave provided for in Section 12945, if the employee
22is otherwise qualified for that leave.

23(s) It is an unlawful employment practice for an employer to
24interfere with, restrain, or deny the exercise of, or the attempt to
25exercise, any right provided under this section.



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