BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 406 Hearing Date: April 22,
2015
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|Author: |Jackson |
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|Version: |February 25, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Deanna Ping |
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Subject: Employment: leave
KEY ISSUE
Should the Legislature extend the permissive family and medical
leave under the California Family Rights Act to include a
seriously ill child, grandparent, grandchild, sibling or
parent-in-law?
Should the Legislature reduce the small business exemption from
50 employees in a 75 miles radius to 5 employees?
Should the Legislature require employers to grant 12 weeks of
leave individually to parents, which are employed by the same
employer, for leave in connection with the birth, adoption, or
foster care of a child?
ANALYSIS
Existing law, under the California Family Rights Act (CFRA),
entitles eligible employees of covered employers to take unpaid,
job-protected leave for specified family and medical reasons.
Eligible employees are entitled to:
Twelve work weeks of leave in a 12-month period for:
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- Bonding with a newborn or adopted child
- Caring for a family member with a serious health
condition (includes parent, spouse, and child)
- The employee's own serious health condition (excluding
pregnancy).
Eligible employees must meet the following conditions:
- worked more than 12 months of service with the employer,
and who has at least 1,250 hours of service with the
employer during the previous 12 month period
- worked at a location in which the employer has at least
50 employees within 75 miles of the employee's worksite.
- Guaranteed reinstatement to the same or comparable
position after taking family leave under CFRA and FMLA
(Gov Code §12945.2)
Existing law provides the following definitions:
- Child: a biological, adopted, foster, or stepchild, a
legal ward, or a child of a person standing in loco
parentis, who is either under the age of 18 or is an adult
dependent child
- Parent: the employee's biological, foster, or adoptive
parent, stepparent, legal guardian, or other person who
stood in loco parentis to the employee when the employee
was a child
- Serious health condition: an illness, injury,
impairment, or physical or mental condition that involves
either inpatient care or continuing treatment or
supervision by a healthcare provider.
(Gov Code §12945.2)
Existing law requires that an employee provide the employer with
reasonable advance notice of the need for the leave, if
foreseeable, and authorizes the employer to require
certification by a health care provider for leave requests due
to serious health conditions. (Gov Code §12945.2)
Existing law states that when both parents are entitled to
family and medical leave in connection with the birth, adoption,
or foster care of a child and are employed by the same employer,
the employer is not required to grant both parents leave
totaling more than 12 weeks.
(Gov Code §12945.2)
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Existing federal law, under the Family and Medical Leave Act
(FMLA ), also entitles eligible employees to take unpaid,
job-protected leave for up to 12 weeks. This leave, granted
under both the state CFRA and the federal FMLA must be taken
concurrently . (§105 of the FMLA and §825.220 of FMLA
regulations)
Existing law established a family temporary disability insurance
program, Paid Family Leave (PFL) that provides up to six weeks
of wage replacement benefits to workers who take time off work
to care for:
a seriously ill child, spouse, parent, or domestic
partner, siblings, grandparents, grandchildren, and
parents-in-laws or to bond with a minor child in connection
with foster care or adoption. (Unemployment Insurance Code
§3301)
Existing law states that an individual is eligible to receive
temporary disability insurance benefits equal to one-seventh of
his or her weekly benefit amount for each full day during which
he or she is unable to work due to caring for a seriously ill or
injured family member or bonding with a minor child within one
year of the birth or placement of the child in connection with
foster care or adoption. (Unemployment Insurance Code §3301)
This Bill expands the family members covered in the California
Family Rights Act including:
1) "Child" to include the son or daughter of a domestic
partner and removes the provision regarding age and
dependent status of the child
2) Expands permissible family and medical leave to include
leave to care for a sibling, grandparent, grandchild, or
parent-in-law with a serious health condition
3) Includes parent-in-law in the definition of parent
4) Specifies permissible leave for a domestic partner with
a serious health condition
5) Reduces the small business exemption to an employer that
employs 5 or fewer employees within 75 miles of the
worksite where the employee is employed.
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6) Removes an exception when both parents are entitled to
leave in connection with the birth, adoption, or foster
care of a child and are employed by the same employer,
thereby requiring the employer to grant each employee up to
12 weeks of leave individually rather than between both
parents as in currently in statute.
COMMENTS
1. The Interaction Between FMLA/CFRA
There are various federal and state laws pertaining to family
leave - making it important to understand the differences
between the statutes as well as how they interact with one
another. The Family and Medical Leave Act (FMLA) is a federal
law that is administered by the U.S. Department of Labor while
the California Family Rights Act (CFRA) is a state law
administered by the Department of Fair Employment and Housing.
The state law changed in 1993 to generally conform to the
provisions of the FMLA. Both the FMLA and CFRA allow an
eligible employee to take up to a total of twelve
job-protected workweeks of leave with employer-paid health,
dental, and vision benefits during a "rolling" twelve month
period. The twelve weeks of leave must run concurrently for
all purposes aside from:
Leave to care for a domestic partner (CFRA only)
Disabilities due to pregnancy or pregnancy-related
condition (FMLA only)
Leave for a qualifying exigency related to a family
member's military service (FMLA only)
Leave to care for an ill or injured service member
(FMLA only)
If an eligible FMLA/CFRA employee also elects to receive wage
replacement benefits from the Paid Family Leave program then
the PFL must be taken concurrently as well.
In addition to sharing similar leave provisions and
eligibility requirements, both the FMLA and CFRA have
anti-retaliation and discrimination provisions.
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2. Need for this bill?
According to the author's office, SB 406 ensures that eligible
workers can keep their jobs when they need time off to care
for their families. Over 40% of the workforce is not eligible
for California Family Rights Act due to the law's eligibility
requirements, which means they are cannot take job-protected,
paid leave through the Paid Family Leave program.
The current definition of family under CFRA includes minor or
adult dependent children, parents, spouses, and registered
domestic partners. Recently, the definition of family members
for Paid Family Leave, a program that allows workers to
receive partial wage replacement benefits while taking care of
seriously ill family members, was expanded to include
siblings, grandparents, grandchildren, and parents-in-law. SB
406 seeks to include these family members under CFRA, allowing
employees to take job-protected leave when utilizing their PFL
benefits. Currently, employees may receive this monetary
benefit when caring for these additional family members but
risk losing their jobs to provide such care. This bill would
also allow for parents that are entitled to leave and employed
by the same employer to receive 12 weeks of family and medical
leave individually in connection with the birth, adoption, or
foster care of a child.
3. Proponent Arguments :
According to proponents, the restrictions on family caregiving
under CFRA fail to account for the diversity of California
households and the importance of caregiving by extended family
members. Proponents bring attention to a various study
findings including: a study of Alzheimer's patients which
found that 40 percent of caregivers were not covered under the
narrow definition of family in CFRA, one study that found that
nearly 20% of primary caregivers for chronically disabled
individuals are neither the spouse nor the child of the person
receiving care, and another finding that one in twelve
caregivers provides care to a parent-in-law, grandparent, or
grandparent-in-law. Further, proponents maintain that
California has the second highest percentage of
multi-generational households and almost half of Californians
are single with their closest relative likely to be a sibling.
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Proponents also note that California's Paid Family Leave (PFL)
insurance program provides an important partial wage
replacement when an employee takes time off work to care for a
seriously ill family member. However, according to proponents
because Paid Family Leave does not provide any job protection
some workers who pay into this fund never access its benefits
because they would risk losing their job if they took any
leave. Proponents point to a 2011 study which found that among
those who were aware of PFL and needed leave but did not apply
for benefits, 38% said they did not apply because they feared
they would be fired or face other negative consequences at
work. Proponents argue that to make sure the state's PFL
program ensures family members are cared for employees need to
be able to take leave without risking their jobs. Proponents
contend that SB 406 will provide the critical job-protection
for workers who want to take paid family leave by amending
CFRA to expand the definition of family to match PFL and to
lower the employer threshold so that more workers are covered.
4. Opponent Arguments :
Opponents argue that SB 406 will overwhelm small businesses by
mandating businesses with 5 or more employees to provide a
12-week protected leave of absence. Opponents contend that
this will put a greater burden on both small and large
businesses while creating an even further disconnect from the
federal Family and Medical Leave Act. Opponents argue that
this creates a burden for the employer especially if he or she
has multiple employees already out of work on protected leaves
and because the employer must hire and train a temporary
employee to cover the employees' duties, pay an existing
employee a higher wage or overtime to take on the duties, or
suffer decreased productivity until the existing employee out
on leave is ready to return to work.
Additionally, opponents argue that expanding the family
members for whom an employee may take a 12-week protected
leave of absence to care for to include a grandparent, a
grandchild, and siblings will negatively impact California
employers. Opponents argue that as these family members in SB
406 are not covered under the federal Family and Medical Leave
Act, the bill will potentially provide a California employer
with an obligation to provide up to 24 weeks of protected
leave. Specifically, opponents argue that under SB 406 an
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employee could utilize his/her 12 weeks of CFRA to care for
the serious medical condition of a grandparent as well as
still be entitled to another 12-week protected leave of
absence under FMLA for his or her own medical condition or the
medical condition of his/her spouse, child or parent.
Lastly, opponents argue that since an employee can take CFRA
and FMLA in as small of increments as one hour at a time it
provides an extensive amount of protected time off for
California-only employees requiring California-only employers
to administer and track property to protect against potential
liability.
5. Prior Legislation :
SB 770 (Jackson) Chapter 350, Statutes of 2013 - broadened the
definition of family within the Paid Family Leave (PFL) program
to allow workers to receive the partial wage replacement
benefits while taking care of seriously ill siblings,
grandparents, grandchildren, and parents-in-law.
SB 761 (DeSaulnier) of 2013 - this bill would have made it
unlawful for an employer or agent of an employer to discharge or
in any other manner discriminate against an individual because
he or she has applied for, used, or indicated an intent to apply
for or use, family temporary disability insurance benefits. This
bill was amended out of Labor Code and into Revenue and Tax
Code.
AB 2039 (Swanson) of 2012 - was identical to AB 59 of 2011, AB
849 of 2009 and AB 537 of 2007, was held in Senate
Appropriations.
AB 59 (Swanson) of 2011 - was identical to AB 849 of 2009 and AB
537 of 2007, was held in Assembly Appropriations.
AB 849 (Swanson) of 2009 - was identical to AB 537 of 2007 and
was held in Assembly Appropriations.
AB 537 (Swanson) of 2007 - would have increased the
circumstances under which an employee is entitled to protected
leave pursuant to the CFRA. Including, amending the definition
of "child" to eliminate references to the age and dependency of
the child, expanding the scope of permissible family and medical
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leave to include leave to care for a grandparent, sibling,
grandchild, or parent-in-law with a serious health condition,
and specifying that permissible leave includes leave to care for
a domestic partner with a serious health condition. Vetoed by
Governor Schwarzenegger.
SB 727 (Kuehl) of 2007 - would have allowed employees covered by
Paid Family Leave to take paid leave to care for grandparents,
grandchildren, siblings, and in-laws, as well as clarify
existing law to ensure that Paid Family Leave must be taken
concurrently with the California Family Medical Leave Act (CFRA)
and the federal Family Medical Leave Act (FMLA). Vetoed by
Governor Schwarzenegger.
SB 193 (Marks), Chapter 580, Statutes of 1993 - created the
California Family Rights Act (CFRA), also known as the
Moore-Brown-Roberti Family Rights Act.
SUPPORT
California Employment Lawyers Association (Co-Sponsor)
Equal Rights Advocates (Co-Sponsor)
The Legal Aid Society-Employment Law Center (Co-Sponsor)
Alzheimer's Association
American Association of University Women
Association of California Caregiver Resource Centers
Association of Women's Health, Obstetrics, and Neonatal Nurses
Breastfeed LA
California Alliance for Retired Americans
California Black Health Network
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Women's Law Center
Child Care Law Center
Communications Workers of America AFL-CIO, CLC Local 9003
Communications Workers of America, District 9 AFL-CIO
Congress of California Seniors
Family Caregiver Alliance
Forward Together
Independent Living Resource Center
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Jodi House
LAANE
National Association of Social Workers, California Chapter
National Council of Jewish Women-CA
Service Employees International Union, AFL-CIO
The ARC California
The Center for Law and Social Policy
The Center for WorkLife Law
United Cerebral Palsy California Collaboration
Western Center on Law and Poverty
Western Regional Advocacy Project
9to5
OPPOSITION
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Growers Association
California Dairies, Inc.
California Fresh Fruit Association
California Manufacturers and Technology Association
California Pool & Spa Association
California Professional Associations of Specialty Contractors
California Restaurant Association
California State Association of Counties
California State Council of Society for Human Resource
Management
Family Business Association
Far West Equipment Dealers Association
Nisei Farmers League
Plumbing-Heating-Cooling Contractors Association of California
Society for Human Resource Management
The Alliance
The National Federation of Independent Business
Western Agricultural Processors Association
Western Electrical Contractors Association
Western Growers Association
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