BILL ANALYSIS                                                                                                                                                                                                    ”

                                                                     SB 406

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          Date of Hearing:   June 24, 2015


                               Roger HernŠndez, Chair

          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  

          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  

          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  

          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


          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  

          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  

          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. 


          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  

          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. 




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          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


          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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          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)