BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 406| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- VETO Bill No: SB 406 Author: Jackson (D), et al. Amended: 9/4/15 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 SENATE FLOOR: 23-16, 6/4/15 AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Wieckowski, Wolk NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak NO VOTE RECORDED: Hueso SENATE FLOOR: 23-16, 9/11/15 AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Monning, Pan, Pavley, Wieckowski, Wolk NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak NO VOTE RECORDED: Mitchell ASSEMBLY FLOOR: 41-30, 9/11/15 - See last page for vote SUBJECT: Employment: leave SB 406 Page 2 SOURCE: California Employment Lawyers Association Equal Rights Advocates Legal Aid Society Employment Law Center DIGEST: This bill expands various provisions of law related to unpaid family and medical leave under the California Family Rights Act (CFRA). ANALYSIS: Existing federal law, under the Family and Medical Leave Act (FMLA) entitles eligible employees to take unpaid, job-protected leave for up to 12 weeks in a 12-month period for: the birth of a child and to care for the newborn child within one year, to care for the employee's spouse, child, or parent who has a serious health condition, or a serious health condition that makes the employee unable to perform the essential functions or his or her job. 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 state law, under CFRA: 1)Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. 2)Allows eligible employees to take 12 workweeks of leave in a 12-month period for: bonding with a newborn or adopted child, caring for a family member with a serious health condition (includes parent, spouse, and child), and the employee's own serious health condition (excluding pregnancy). 3)States that eligible employees must meet the following conditions: a) Worked more than 12 months of service with the employer, SB 406 Page 3 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. 4)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. 5)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. 6)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 law establishes 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 SB 406 Page 4 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) This bill expands the family members covered in 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, domestic partner, or parent-in-law with a serious health condition. 3)Allows parents, when employed by the same employer, to be granted up to 12 weeks of leave individually rather than between both parents, removing an exception currently in existing law. Comments 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 SB 406 Page 5 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, Department of Fair Employment and Housing (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. According to the Assembly Appropriations Committee, this bill would result in General Fund administrative costs to the DFEH of approximately $700,000. The impact to other state agencies is expected to be minimal since the state generally provides this benefit already. SUPPORT: (Verified 9/11/15) 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 SB 406 Page 6 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 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 California Work & Family Coalition 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 SB 406 Page 7 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 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 SB 406 Page 8 UC Hastings Center for WorkLife Law Western Center on Law and Poverty Western Regional Advocacy Project OPPOSITION: (Verified9/11/15) 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 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 SB 406 Page 9 Western Growers Association Western Plant Health Association ARGUMENTS IN SUPPORT: 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% 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 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 so that more workers are covered. Supporters argue that most leave taken under the CFRA is short, minimizing the impact on employers. They state that nearly half of all leave taken is for 10 days or less. ARGUMENTS IN OPPOSITION: A coalition of employers, including the California Chamber of Commerce, opposes this bill and 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 also argue that California already has extensive family-related protected leaves of absence and that this bill is therefore unnecessary. 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. SB 406 Page 10 GOVERNOR'S VETO MESSAGE: I am returning Senate Bill 406 without my signature. This bill expands the circumstances under which a qualified employee may take up to 12 weeks of unpaid leave under the California Family Rights Act. I support the author's efforts to ensure that eligible workers can take leave to care for a seriously ill family member. The expansion provided in this bill, however, creates a disparity between California's law and the Federal Medical Leave Act and, in certain circumstances, could require employers to provide employees up to 24 weeks of family leave in a 12 month period. I am open to legislation to allow workers to take leave for additional family members that does not create this anomaly. ASSEMBLY FLOOR: 41-30, 9/11/15 AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Dababneh, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin, Nazarian, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Atkins NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Dodd, Frazier, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Medina, Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Cooper, Daly, Hadley, O'Donnell, Olsen, Perea, Quirk, Williams, Wood Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556 11/4/15 13:34:13 SB 406 Page 11 **** END ****