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 ----------------------------------------------------------------- |Author: |Jackson | |-----------+-----------------------------------------------------| |Version: |February 25, 2015 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Deanna Ping | | | | ----------------------------------------------------------------- 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: SB 406 (Jackson) Page 2 of ? - 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) SB 406 (Jackson) Page 3 of ? 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. SB 406 (Jackson) Page 4 of ? 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. SB 406 (Jackson) Page 5 of ? 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. SB 406 (Jackson) Page 6 of ? 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 SB 406 (Jackson) Page 7 of ? 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 SB 406 (Jackson) Page 8 of ? 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 SB 406 (Jackson) Page 9 of ? 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 -- END -- SB 406 (Jackson) Page 10 of ?