BILL ANALYSIS                                                                                                                                                                                                    

          |SENATE RULES COMMITTEE            |                        SB 406|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |

                                   THIRD READING 

          Bill No:  SB 406
          Author:   Jackson (D), et al.
          Amended:  4/23/15  
          Vote:     21  

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/22/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Employment:  leave

          SOURCE:    California Employment Lawyers Association  
                               Equal Rights Advocates 
                     Legal Aid Society - Employment Law Center

          DIGEST:  This bill expands permissive family and medical leave  
          under the California Family Rights Act to include care for a  
          seriously ill child regardless of age or dependent status,  
          grandparent, grandchild, sibling, or parent-in-law. This bill  
          also reduces the small business exemption from 50 employees in a  
          75 miles radius to 25 employees. This bill also requires  
          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 federal law, under the Family and Medical  


                                                                     SB 406  
                                                                    Page  2

          Leave Act (FMLA), entitles eligible employees to take unpaid,  
          job-protected leave for up to 12 weeks in a 12-month period for:  

          1)The birth of a child and to care for the newborn child within  
            one year of birth or placement of a child for adoption or  
            foster care.

          2)To care for the employee's spouse, child, or parent who has a  
            serious health condition.

          3)A serious health condition that makes the employee unable to  
            perform the essential functions or his or her job.
          4)Any qualifying exigency arising out of the fact that the  
            employee's spouse, son, daughter, or parent is a covered  
            military member on "covered active duty" or 26 workweeks in a  
            single 12-month period to care for a covered service member  
            with a serious injury or illness if the eligible employee is  
            the service member's spouse, son, daughter, parent, or next of  

          This leave, granted under both the state California Family  
          Rights Act (CFRA) and the federal FMLA must be taken  
          concurrently. (105 of the FMLA and 825.220 of FMLA  

          Existing state law, under CFRA:

          1)Entitles eligible employees of covered employers to take  
            unpaid, job-protected leave for specified family and medical  

             a)   Allows eligible employees to take 12 workweeks of leave  
               in a 12-month period for: 

             b)   Bonding with a newborn or adopted child.

             c)   Caring for a family member with a serious health  
               condition (includes parent, spouse, and child).

             d)   The employee's own serious health condition (excluding  


                                                                     SB 406  
                                                                    Page  3

          2)States that eligible employees must meet the following  

             a)   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.

             b)   Worked at a location in which the employer has at least  
               50 employees within 75 miles of the employee's worksite.  

             c)   Guaranteed reinstatement to the same or comparable  
               position after taking family leave under CFRA and FMLA 

          3)Provides the following definitions family members and serious  
            health condition: 

             a)   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.

             b)   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.

             c)   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.  

          4)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  

          5)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.  

          Existing state law established a family temporary disability  


                                                                     SB 406  
                                                                    Page  4

          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 state 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 CFRA  

          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 25 or fewer employees within 75 miles of the worksite  
            where the employee is employed. 

          This bill also 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.


                                                                     SB 406  
                                                                    Page  5


          1)Author's statement.  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 CFRA due to the law's  
            eligibility requirements, which means they are cannot take  
            job-protected, paid leave through the PFL 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 PFL, 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 also allows 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. 

          2)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. FMLA is a  
            federal law that is administered by the U.S. Department of  
            Labor while the CFRA is a state law administered by the  
            Department of Fair Employment and Housing (DFEH). 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 12 job-protected workweeks of leave with  
            employer-paid health, dental, and vision benefits during a  
            "rolling" 12-month period. The 12 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  


                                                                     SB 406  
                                                                    Page  6

               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  

            If an eligible FMLA/CFRA employee also elects to receive wage  
            replacement benefits from the PFL 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. 
           FISCAL EFFECT:   Appropriation:    No          Fiscal Com.:  
          YesLocal:        No

          According to the Senate Appropriations Committee, DFEH will  
          incur increased General Fund costs of about $686,000 annually to  
          implement the provisions of this bill. DFEH will require an  
          augmentation of six positions and $686,000 to handle an assumed  
          increased in CFRA complaints of about 24% created by the  
          expansion of CFRA rights. DFEH will not receive any additional  
          federal funds; its work share agreement with the Equal  
          Employment Opportunity Commission excludes CFRA complaints.

          SUPPORT:   (Verified5/29/15)

          California Employment Lawyers Association (co-source) 
          Equal Rights Advocates (co-source)
          Legal Aid Society - Employment Law Center (co-source)
          Alzheimer's Association
          American Association of Retired Persons 
          Association of American University Women
          Association of Caregiver Resource Centers
          Association of Women's Health, Obstetrics, and Neonatal Nurses  
          Breastfeeding Coalition for Ventura County
          California Alliance for Retired Americans


                                                                     SB 406  
                                                                    Page  7

          California Black Health Network
          California Immigrant Policy Center
          California Labor Federation
          California Nurses Association/National Nurses United
          California Rural Legal Assistance Foundation
          California School Employees Association
          California Teachers Association
          California Women's Law Center
          Center for Law and Social Policy
          Child Care Law Center
          Coalition of California Welfare Rights Organizations, Inc.
          Communications Workers of America 9003 
          Communications Workers of America District 9 
          Congress of California Seniors 
          Disability Rights California
          Family Caregiving Alliance
          Forward Together
          Independent Living Resource Center 
          Jodi House of Santa Barbara
          Los Angeles Alliance for a New Economy 
          National Association of Social Workers
          National Council of Jewish Women
          National Partnership for Women & Families
          Planned Parenthood Action Fund of Santa Barbara, Ventura & San  
          Luis Obispo
          Restaurant Opportunities Center of Los Angeles
          San Francisco Breastfeeding Promotion Coalition
          SEIU California
          Teamsters Local Union No. 986

          OPPOSITION:   (Verified5/29/15)

          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 Ginners Association
          California Cotton Growers Association
          California Dairies, Inc. 
          California Farm Bureau Federation
          California Fresh Fruit Association 


                                                                     SB 406  
                                                                    Page  8

          California Grocers Association
          California Landscape Contractors Association
          California League of Food Processors
          California Manufacturers and Technology Association
          California Pool & Spa Association
          California Professional Associations of Specialty Contractors
          California Restaurant Association
          California State Association of Counties
          California Trucking Association
          Claremont Chamber of Commerce
          Family Business Association
          Far West Equipment Dealers Association
          Greater Bakersfield Chamber of Commerce
          National Federation of Independent Business
          Nisei Farmers League 
          Plumbing-Heating-Cooling Contractors Association of California
          Society for Human Resource Management 
          Southwest California Legislative Council 
          The Alliance 
          Western Agricultural Processors Association
          Western Electrical Contractors Association
          Western Growers Association
          Western Plant Health Association

          ARGUMENTS IN SUPPORT:   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 various study findings including: a study of  
          Alzheimer's patients which found that 40% 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  

          Proponents also note that California's 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 PFL 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  


                                                                     SB 406  
                                                                    Page  9

          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  

          ARGUMENTS IN OPPOSITION:Opponents argue that SB 406 will  
          overwhelm small businesses by mandating businesses with 25 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 FMLA. 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  

          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 FMLA, this 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 employee could utilize his or 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 or her spouse, child or parent.  

          Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556
          5/30/15 16:27:05


                                                                     SB 406  
                                                                    Page  10

                                   ****  END  ****