BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 406|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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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
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
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
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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
kin.
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
regulations)
Existing state law, under CFRA:
1)Entitles eligible employees of covered employers to take
unpaid, job-protected leave for specified family and medical
reasons.
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
pregnancy).
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2)States that eligible employees must meet the following
conditions:
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
conditions.
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
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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
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 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.
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Comments
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
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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 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)
9to5
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
BreastfeedLA
California Alliance for Retired Americans
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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
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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
grandparent-in-law.
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
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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.
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
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 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
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