Amended in Assembly September 4, 2015

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

(Coauthors: Assembly Members Gomez and 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.begin delete 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).end delete 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.

Thebegin delete 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. Theend delete 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, leavebegin insert for reason of the serious health condition of a child, and leaveend insert 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.

begin delete

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.

end delete
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The

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begin insertThisend insert 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.begin delete The act would redefine “employer” to include any person who directly employs 25 or more persons to perform services for a wage or salary.end delete 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:

P3    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
8up to a total of 12 workweeks in any 12-month period for family
9care and medical leave. Family care and medical leave requested
10pursuant to this subdivision shall not be deemed to have been
11granted unless the employer provides the employee, upon granting
12the leave request, a guarantee of employment in the same or a
13comparable position upon the termination of the leave. The
14commission shall adopt a regulation specifying the elements of a
15reasonable request.

16(b) Notwithstanding subdivision (a), it shall not be an unlawful
17employment practice for an employer to refuse to grant a request
18for family care and medical leave by an employee if the employer
19employs fewer thanbegin delete 25end deletebegin insert 50end insert employees within 75 miles of the
20worksite where that employee is employed.

21(c) For purposes of this section:

22(1) “Child” means a biological, adopted, or foster son or
23daughter, a stepchild, a legal ward, a son or daughter of a domestic
24partner, or a person to whom the employee stands in loco parentis.

25(2) “Employer” means either of the following:

26(A) Any person who directly employsbegin delete 25end deletebegin insert 50end insert or more persons
27to perform services for a wage or salary.

28(B) The state, and any political or civil subdivision of the state
29and cities.

30(3) “Family care and medical leave” means any of the following:

31(A) Leave for reason of the birth of a child of the employee or
32the placement of a child with an employee in connection with the
33adoption or foster care of the child by the employee.

34(B) Leave to care for a child, parent, grandparent, grandchild,
35sibling, spouse, or domestic partner who has a serious health
36condition.

37(C) Leave because of an employee’s own serious health
38condition that makes the employee unable to perform the functions
P4    1of the position of that employee, except for leave taken for
2disability on account of pregnancy, childbirth, or related medical
3conditions.

4(4) “Employment in the same or a comparable position” means
5employment in a position that has the same or similar duties and
6pay that can be performed at the same or similar geographic
7location as the position held prior to the leave.

8(5) “FMLA” means the federal Family and Medical Leave Act
9of 1993 (Public Law 103-3; 29 U.S.C. Sec. 2601 et seq.).

10(6) “Health care provider” means any of the following:

11(A) An individual holding either a physician’s and surgeon’s
12certificate issued pursuant to Article 4 (commencing with Section
132080) of Chapter 5 of Division 2 of the Business and Professions
14Code, an osteopathic physician’s and surgeon’s certificate issued
15pursuant to Article 4.5 (commencing with Section 2099.5) of
16Chapter 5 of Division 2 of the Business and Professions Code, or
17an individual duly licensed as a physician, surgeon, or osteopathic
18physician or surgeon in another state or jurisdiction, who directly
19treats or supervises the treatment of the serious health condition.

20(B) Any other person determined by the United States Secretary
21of Labor to be capable of providing health care services under the
22FMLA.

23(7) “Parent” means a biological, foster, or adoptive parent, a
24parent-in-law, a stepparent, a legal guardian, or other person who
25stood in loco parentis to the employee when the employee was a
26child.

27(8) “Serious health condition” means an illness, injury,
28impairment, or physical or mental condition that involves either
29of the following:

30(A) Inpatient care in a hospital, hospice, or residential health
31care facility.

32(B) Continuing treatment or continuing supervision by a health
33care provider.

34(d) An employer shall not be required to pay an employee for
35any leave taken pursuant to subdivision (a), except as required by
36subdivision (e).

37(e) An employee taking a leave permitted by subdivision (a)
38may elect, or an employer may require the employee, to substitute,
39for leave allowed under subdivision (a), any of the employee’s
40accrued vacation leave or other accrued time off during this period
P5    1or any other paid or unpaid time off negotiated with the employer.
2If an employee takes a leave because of the employee’s own serious
3health condition, the employee may also elect, or the employer
4may also require the employee, to substitute accrued sick leave
5during the period of the leave. However, an employee shall not
6use sick leave during a period of leave in connection with the birth,
7adoption, or foster care of a child, or to care for a child, parent, or
8spouse with a serious health condition, unless mutually agreed to
9by the employer and the employee.

10(f) (1) During any period that an eligible employee takes leave
11pursuant to subdivision (a) or takes leave that qualifies as leave
12taken under the FMLA, the employer shall maintain and pay for
13coverage under a “group health plan,” as defined in Section
145000(b)(1) of the Internal Revenue Code, for the duration of the
15leave, not to exceed 12 workweeks in a 12-month period,
16commencing on the date leave taken under the FMLA commences,
17at the level and under the conditions coverage would have been
18provided if the employee had continued in employment
19continuously for the duration of the leave. Nothing in the preceding
20 sentence shall preclude an employer from maintaining and paying
21for coverage under a “group health plan” beyond 12 workweeks.
22An employer may recover the premium that the employer paid as
23required by this subdivision for maintaining coverage for the
24employee under the group health plan if both of the following
25conditions occur:

26(A) The employee fails to return from leave after the period of
27leave to which the employee is entitled has expired.

28(B) The employee’s failure to return from leave is for a reason
29other than the continuation, recurrence, or onset of a serious health
30condition that entitles the employee to leave under subdivision (a)
31or other circumstances beyond the control of the employee.

32(2) (A) Any employee taking leave pursuant to subdivision (a)
33shall continue to be entitled to participate in employee health plans
34for any period during which coverage is not provided by the
35employer under paragraph (1), employee benefit plans, including
36life insurance or short-term or long-term disability or accident
37insurance, pension and retirement plans, and supplemental
38unemployment benefit plans to the same extent and under the same
39conditions as apply to an unpaid leave taken for any purpose other
40than those described in subdivision (a). In the absence of these
P6    1conditions an employee shall continue to be entitled to participate
2in these plans and, in the case of health and welfare employee
3benefit plans, including life insurance or short-term or long-term
4disability or accident insurance, or other similar plans, the employer
5 at his or her discretion, may require the employee to pay premiums,
6at the group rate, during the period of leave not covered by any
7accrued vacation leave, or other accrued time off, or any other paid
8or unpaid time off negotiated with the employer, as a condition of
9continued coverage during the leave period. However, the
10nonpayment of premiums by an employee shall not constitute a
11break in service, for purposes of longevity, seniority under any
12collective bargaining agreement, or any employee benefit plan.

13(B) For purposes of pension and retirement plans, an employer
14shall not be required to make plan payments for an employee
15during the leave period, and the leave period shall not be required
16to be counted for purposes of time accrued under the plan.
17However, an employee covered by a pension plan may continue
18to make contributions in accordance with the terms of the plan
19during the period of the leave.

20(g) During a family care and medical leave period, the employee
21shall retain employee status with the employer, and the leave shall
22not constitute a break in service, for purposes of longevity, seniority
23under any collective bargaining agreement, or any employee benefit
24plan. An employee returning from leave shall return with no less
25seniority than the employee had when the leave commenced, for
26purposes of layoff, recall, promotion, job assignment, and
27seniority-related benefits such as vacation.

28(h) If the employee’s need for a leave pursuant to this section
29is foreseeable, the employee shall provide the employer with
30reasonable advance notice of the need for the leave.

31(i) If the employee’s need for leave pursuant to this section is
32foreseeable due to a planned medical treatment or supervision, the
33employee shall make a reasonable effort to schedule the treatment
34or supervision to avoid disruption to the operations of the employer,
35subject to the approval of the health care provider of the individual
36requiring the treatment or supervision.

37(j) (1) An employer may require that an employee’s request
38for leave to care for a child, a spouse, or a parent who has a serious
39health condition be supported by a certification issued by the health
P7    1care provider of the individual requiring care. That certification
2shall be sufficient if it includes all of the following:

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

4(B) The probable duration of the condition.

5(C) An estimate of the amount of time that the health care
6provider believes the employee needs to care for the individual
7requiring the care.

8(D) A statement that the serious health condition warrants the
9participation of a family member to provide care during a period
10of the treatment or supervision of the individual requiring care.

11(2) Upon expiration of the time estimated by the health care
12provider in subparagraph (C) of paragraph (1), the employer may
13require the employee to obtain recertification, in accordance with
14the procedure provided in paragraph (1), if additional leave is
15required.

16(k) (1) An employer may require that an employee’s request
17for leave because of the employee’s own serious health condition
18be supported by a certification issued by his or her health care
19provider. That certification shall be sufficient if it includes all of
20the following:

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

22(B) The probable duration of the condition.

23(C) A statement that, due to the serious health condition, the
24employee is unable to perform the function of his or her position.

25(2) The employer may require that the employee obtain
26subsequent recertification regarding the employee’s serious health
27condition on a reasonable basis, in accordance with the procedure
28provided in paragraph (1), if additional leave is required.

29(3) (A) In any case in which the employer has reason to doubt
30the validity of the certification provided pursuant to this section,
31the employer may require, at the employer’s expense, that the
32employee obtain the opinion of a second health care provider,
33designated or approved by the employer, concerning any
34information certified under paragraph (1).

35(B) The health care provider designated or approved under
36subparagraph (A) shall not be employed on a regular basis by the
37employer.

38(C) In any case in which the second opinion described in
39subparagraph (A) differs from the opinion in the original
40certification, the employer may require, at the employer’s expense,
P8    1that the employee obtain the opinion of a third health care provider,
2designated or approved jointly by the employer and the employee,
3concerning the information certified under paragraph (1).

4(D) The opinion of the third health care provider concerning
5the information certified under paragraph (1) shall be considered
6to be final and shall be binding on the employer and the employee.

7(4) As a condition of an employee’s return from leave taken
8because of the employee’s own serious health condition, the
9employer may have a uniformly applied practice or policy that
10requires the employee to obtain certification from his or her health
11care provider that the employee is able to resume work. Nothing
12in this paragraph shall supersede a valid collective bargaining
13agreement that governs the return to work of that employee.

14(l) It shall be an unlawful employment practice for an employer
15to refuse to hire, or to discharge, fine, suspend, expel, or
16discriminate against, any individual because of any of the
17following:

18(1) An individual’s exercise of the right to family care and
19medical leave provided by subdivision (a).

20(2) An individual’s giving information or testimony as to his or
21her own family care and medical leave, or another person’s family
22care and medical leave, in any inquiry or proceeding related to
23rights guaranteed under this section.

24(m) This section shall not be construed to require any changes
25in existing collective bargaining agreements during the life of the
26contract, or until January 1, 1993, whichever occurs first.

27(n) The amendments made to this section by Chapter 827 of the
28Statutes of 1993 shall not be construed to require any changes in
29existing collective bargaining agreements during the life of the
30contract, or until February 5, 1994, whichever occurs first.

31(o) This section shall be construed as separate and distinct from
32Section 12945.

33(p) Leave provided for pursuant to this section may be taken in
34one or more periods. The 12-month period during which 12
35workweeks of leave may be taken under this section shall run
36concurrently with the 12-month period under the FMLA, and shall
37commence the date leave taken under the FMLA commences.

38(q) (1) Notwithstanding subdivision (a), an employer may refuse
39to reinstate an employee returning from leave to the same or a
40comparable position if all of the following apply:

P9    1(A) The employee is a salaried employee who is among the
2highest paid 10 percent of the employer’s employees who are
3employed within 75 miles of the worksite at which that employee
4is employed.

5(B) The refusal is necessary to prevent substantial and grievous
6economic injury to the operations of the employer.

7(C) The employer notifies the employee of the intent to refuse
8reinstatement at the time the employer determines the refusal is
9necessary under subparagraph (B).

10(2) In any case in which the leave has already commenced, the
11employer shall give the employee a reasonable opportunity to
12return to work following the notice prescribed by subparagraph
13(C).

14(r) Leave taken by an employee pursuant to this section shall
15run concurrently with leave taken pursuant to the FMLA, except
16for any leave taken under the FMLA for disability on account of
17pregnancy, childbirth, or related medical conditions. The aggregate
18amount of leave taken under this section or the FMLA, or both,
19except for leave taken for disability on account of pregnancy,
20childbirth, or related medical conditions, shall not exceed 12
21workweeks in a 12-month period. An employee is entitled to take,
22in addition to the leave provided for under this section and the
23FMLA, the leave provided for in Section 12945, if the employee
24is otherwise qualified for that leave.

25(s) It is an unlawful employment practice for an employer to
26interfere with, restrain, or deny the exercise of, or the attempt to
27exercise, any right provided under this section.



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