BILL ANALYSIS Ó
SB 406
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Date of Hearing: June 24, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB
406 (Jackson) - As Amended June 1, 2015
SENATE VOTE: 23-16
SUBJECT: Employment: leave.
SUMMARY: Expands various provisions of law related to unpaid
family and medical leave under the California Family Rights Act.
Specifically, this bill:
1)Provides that the law applies to any person who directly
employs 25 or more employees (compared with 50 or more
employees under existing law).
2)Amends the definition of "child" to include the son or
daughter of a domestic partner and deletes provisions
regarding the age and dependent status of a child.
3)Expands permissible leave to include leave to care for a
sibling, grandparent, grandchild, parent-in-law, or domestic
partner with a serious health condition.
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4)Removes an exception when both parents 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 currently in existing law.
5)Makes related and conforming changes.
EXISTING LAW:
1)Establishes the California Family Rights Act (CFRA), also
known as the Moore-Brown-Roberti Family Rights Act.
2)Requires employers with 50 or more employees to provide
covered employees, upon request, with up to 12 weeks of
protected unpaid leave during any 12 month period for the
following reasons:
a) For the birth of a child or the placement of a child in
connection with the adoption or placement in foster care of
the child with the employee.
b) To care for a parent, spouse or child with a serious
health condition.
c) Because of the employee's own serious health condition.
3)Defines "child" as a biological, adopted or foster child, a
stepchild, a legal ward, or a child of a person standing in
local parentis, who is either under the age of 18 or is an
adult independent child.
4)Defines an "employer" as either any person who directly
employs 50 or more persons to perform services for a wage or a
salary, or the state and any political or civil subdivision of
the state and cities.
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5)Defines a "parent" as 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.
6)Defines a "serious" health condition as an illness, injury,
impairment, or physical or mental condition that involves
either inpatient care or continuing treatment or supervision
by a health care provider.
7)Requires an employee to provide the employer with reasonable
advance notice of the need for the leave, if foreseeable.
8)Authorizes an employer to require that an employee request for
leave for a serious health condition be certified by a health
care provider, as specified, and that it subsequently may be
recertified if additional leave is requested.
9)Establishes a process by whereby an employer may contest the
validity of the certification of a serious health condition
and obtain an ultimate determination that is final and binding
on the employer and the employee.
FISCAL EFFECT: According to the Senate Appropriations
Committee, the Department of Fair Employment and Housing will
incur increased General Fund costs of about $686,000 annually to
implement the provisions of this bill.
COMMENTS: The federal Family and Medical Leave Act (FMLA) is
the federal law that provides up to 12 weeks of unpaid leave to
covered employees. The FMLA covers all public-sector workers
and private sector workers who work for employers with 50 or
more employees on the payroll or within 75 miles of the
worksite. In addition, employees must work for at least 12
months and worked 1,250 hours or more for the same employer in
the year preceding the leave.
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CFRA is the state law version of the federal FMLA, and is
enforced by the Department of Fair Employment and Housing. This
bill proposes to make a number of changes to the CFRA.
Expanding Employers and Employees Covered Under the CFRA
The existing CFRA defines "employer" to mean any person who
directly employs 50 or more persons, and includes the state, and
any political or civil subdivision of the state. Similarly,
CFRA specifies that it shall not be an unlawful employment
practice for an employer to refuse to grant a request for family
care and medical leave by an employee if the employer employs
less than 50 employees within 75 miles of the worksite where
that employee is employed.
This bill would amend CFRA to provide that the law applies to
any person who directly employs 25 or more employees.
FMLA COMPARISON: The FMLA covers all public-sector workers and
private sector workers who work for employers with 50 or more
employees on the payroll or within 75 miles of the worksite.
Expanding the Definition of Child
Existing state law defines a "child" as a biological, adopted or
foster child, as 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. The regulations implementing the
CFRA specify that an adult dependent child is "an individual who
is 18 years of age or older and who is incapable of self-care
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because of a mental or physical disability (2 C.C. R. 7297.0
(c)).
This bill eliminates the reference to age and dependency status
of a child, and specifies that "child" includes the son or
daughter of a domestic partner.
FMLA COMPARISON: The FMLA uses a definition of "son or
daughter" that specifies that the individual must be either
under the age of 18 or age 18 or older and "incapable of
self-care because of a mental or physical disability" (29 C.F.R.
825.113 (c)), identical to the definition under the existing
CFRA regulations.
Expanding Coverage for Siblings, Grandparents, Grandchildren,
and Parents-in-Law
Existing state law defines "family and medical leave" to include
leave to care for a parent, spouse or child with a serious
health condition.
This bill expands the coverage of existing law to include leave
to care for a sibling, grandparent, grandchild or parent-in-law
with a serious health condition, and specifies that the
permissible leave includes domestic partners with a serious
health condition.
FMLA COMPARISON: The FMLA authorizes an employee to take leave
to care for a spouse, son or daughter, or parent with a serious
health condition. The federal regulation specifies that the
term spouse means "a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where
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it is recognized" (29 C.F.R. 825.113 (a) ).
Elimination of Exception for Parents Working for the Same
Employer
Existing law under CFRA states that where both parents are
employed by the same employer, the employer shall not be
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 12 weeks.
This bill would eliminate such language, thereby requiring the
employer to grant each employee up to 12 weeks of leave
individually rather than between both parents
ARGUMENTS IN SUPPORT
According to the author, this bill ensures that eligible workers
can keep their jobs when they need time off to care for their
families. Over 40 percent of the workforce is not eligible for
California Family Rights Act due to the law's eligibility.
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 (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. This bill
seeks to include these family members under CFRA, allowing
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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.
According to supporters, 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. Supporters bring attention to 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 percent 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.
Supporters 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, 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.
Supporters 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 percent said they did not apply because they feared
they would be fired or face other negative consequences at work.
Supporters contend that this bill will provide the critical
job-protection for workers who want to take paid family leave by
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amending CFRA to expand the definition of family to match PFL
and to lower the employer threshold so that more workers are
covered.
Finally, supporters argue that most leave taken under the CFRA
or the FMLA is short, minimizing the impact on employers. They
state that nearly half of all leave taken is for 10 days or
less. Moreover, they cite data from the Employment Development
Department (EDD) that expanding this bill to cover employers
with 25 or more employees will impact less than 6 percent of
businesses in California.
ARGUMENTS IN OPPOSITION
A coalition of employers, including the California Chamber of
Commerce, opposes this bill and argues that it 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
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siblings will negatively impact California employers. Opponents
argue that as these family members in this bill 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 this
bill 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.
Opponents also argue that California already has extensive
family-related protected leaves of absence including the
following: Paid Sick Leave (applicable to all employers and
includes employee and family members); Kin Care (applicable to
all employers and allows employees to use half of paid time off
for family members' illnesses); California Family Rights Act
(applicable to employees with 50 or more employees and provides
12-week leave of absence for employee's medical condition,
family members medical condition, or to bond with new child);
Pregnancy Disability Leave (applicable to employers with 5 or
more employees and provides 4 months of protected leave that is
in addition to CFRA's 12 weeks); School Activities Leave
(applicable to employers with 25 or more employees for 40 hours
per year to attend school related activities of a child). They
contend that imposing another 12 week leave of absence on
employers with only 25 employees is simply too much for many of
these small employers to manage.
REGISTERED SUPPORT / OPPOSITION:
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Support
9to5 CA Chapter
9to5 National
Alzheimer's Association
American Association of Retired Persons
Association of American University Women, CA
Association of Caregiver Resource Centers, CA
Association of Women's Health, Obstetrics, and Neonatal Nurses
Breastfeeding Coalition for Ventura County
BreastfeedLA
California Alliance for Retired Americans
California Black Health Network
California Employment Lawyers Association (co-sponsor)
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
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California School Employees Association
California Teachers Association
California Women's Law Center
California Work & Family Coalition
Center for Law and Social Policy
Central Coast Alliance United for a Sustainable Economy
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
Equal Rights Advocates (co-sponsor)
Family Caregiving Alliance
Forward Together
Independent Living Resource Center
Jodi House of Santa Barbara
Latino Coalition for a Healthy California
Legal Aid Society - Employment Law Center (co-sponsor)
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Los Angeles Alliance for a New Economy LAANE
National Association of Social Workers, CA
National Council of Jewish Women, CA
National Partnership for Women & Families
Organization of SMUD Employees
Planned Parenthood Action Fund of Santa Barbara, Ventura & San
Luis Obispo
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Francisco Breastfeeding Promotion Coalition
San Luis Obispo County Employees Association
SEIU California
Teamsters Local Union No. 986
The Alliance of California for Community Empowerment
The Arc and United Cerebral Palsy California Collaboration
The Women's Foundation of California
UC Hastings Center for WorkLife Law
Western Center on Law and Poverty
Western Regional Advocacy Project
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Opposition
Air Conditioning Trade Association
Alhambra Chamber of Commerce
Associated Builders and Contractors of California
Associated General Contractors
California Ambulance Association
California Association for Health Services at Home
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Delivery Association
California Farm Bureau Federation
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California Fresh Fruit Association
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 State Council of SHRM
California Trucking Association
Claremont Chamber of Commerce
Family Business Association
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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
San Francisco Chamber of Commerce
Small Business California
Society for Human Resource Management, CA
Southwest California Legislative Council
The Alliance
Torrance Area Chamber of Commerce
Western Agricultural Processors Association
Western Electrical Contractors Association
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Western Growers Association
Western Plant Health Association
Analysis Prepared by:Ben Ebbink / L. & E. / (916)
319-2091