Amended in Senate April 15, 2015

Senate Bill No. 579

Introduced by Senator Jackson

February 26, 2015

An act to amend begin delete Section 233 end delete begin insert Sections 230.8, 233, 245.5, and 246.5 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 579, as amended, Jackson. Employees: begin delete sick leave. end delete begin insert time off. end insert

begin insert

(1) Existing law prohibits an employer who employs 25 or more employees working at the same location from discharging or discriminating against an employee who is a parent, guardian, or grandparent having custody of a child in a licensed child day care facility or in kindergarten or grades 1 to 12, inclusive, for taking off up to 40 hours each year for the purpose of participating in school activities, subject to specified conditions. Existing law requires an employee to provide documentation regarding these activities upon request by an employer and provides remedies to employees discharged, demoted, or in any other manner discriminated against as a result of his or her exercise of this right to take time off.

end insert begin insert

This bill would include the finding, enrolling, or reenrolling of a child in a school or day care facility as activities for which a parent, guardian, or grandparent having custody of a child shall not be discriminated against or discharged, as described above.

end insert begin delete

Existing

end delete

begin insert (2) end insert begin insert   end insert begin insert Existing end insert law requires an employer who provides sick leave for employees to permit an employee to use the employee’s accrued and available sick leave entitlement to attend to the illness of a begin delete family member, as prescribed, end delete begin insert child, parent, spouse, or domestic partner end insert and prohibits an employer from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave to attend to such an illness.

This bill would additionally require begin delete that end delete begin insert an end insert employer to permit an employee to use sick leave to address a begin delete childcare end delete begin insert child care end insert or school emergency, as defined, begin insert or attend to the preventive care of a child, parent, spouse, or domestic partner, end insert and would prohibit an employer from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave begin delete to address a childcare or school emergency. end delete begin insert for these purposes. end insert

begin insert

(3) The Healthy Workplaces, Healthy Families Act of 2014 requires an employer, upon the request of an employee, to provide paid sick days for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, the employee or the employee’s family member, as specified.

end insert begin insert

This bill would additionally require an employer to provide paid sick days upon the request of an employee to address a child care or school emergency, as defined.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 230.8 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

230.8.  

(a) (1)  begin delete No end delete begin insert An end insert employer who employs 25 or more
employees working at the same location shall begin insert not end insert discharge or in
any way discriminate against an employee who is a parent,
guardian, or grandparent having begin delete custody, end delete begin insert custody end insert of one or more
children begin delete in end delete begin insert of the age to attend end insert kindergarten or grades 1 to 12,
inclusive, or begin delete attending end delete a licensed child day care facility, for taking
off up to 40 hours each year, not exceeding eight hours in any
calendar month of the year, begin delete to participate in activities of the school
or licensed child day care facility of any of his or her children, end delete begin insert for
the purpose of either of the following child-related activities, end insert if
the employee, prior to taking the time off, gives reasonable notice
to the employer of the planned absence of the begin delete employee. end delete begin insert employee: end insert

begin insert

(A) To find, enroll, or reenroll his or her child in a school or
licensed day care facility.

end insert begin insert

(B) To participate in activities of the school or licensed day
care facility of his or her child.

end insert

(2) If both parents of a child are employed by the same employer
at the same worksite, the entitlement under paragraph (1) of a
planned absence as to that child applies, at any one time, only to
the parent who first gives notice to the employer, such that the
other parent may take a planned absence simultaneously as to that
same child under the conditions described in paragraph (1) only
if he or she obtains the employer’s approval for the requested time
off.

(b) (1) The employee shall utilize existing vacation, personal
leave, or compensatory time off for purposes of the planned
absence authorized by this section, unless otherwise provided by
a collective bargaining agreement entered into before January 1,
1995, and in effect on that date. An employee also may utilize time
off without pay for this purpose, to the extent made available by
his or her employer. The entitlement of any employee under this
section shall not be diminished by any collective bargaining
agreement term or condition that is agreed to on or after January
1, 1995.

(2) Notwithstanding paragraph (1), in the event that all
permanent, full-time employees of an employer are accorded
vacation during the same period of time in the calendar year, an
employee of that employer may not utilize that accrued vacation
benefit at any other time for purposes of the planned absence
authorized by this section.

(c) The employee, if requested by the employer, shall provide
documentation from the school or licensed child day care facility
as proof that he or she begin delete participated in school or licensed child day
care facility activities end delete begin insert engaged in child-related activities permitted
in subdivision (a) end insert on a specific date and at a particular time. For
purposes of this subdivision, “documentation” means whatever
written verification of parental participation the school or licensed
child day care facility deems appropriate and reasonable.

(d) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against
in terms and conditions of employment by his or her employer
because the employee has taken time off to begin delete participate in school
or licensed child day care facility activities as described in this
section end delete begin insert engage in child-related activities permitted in subdivision
(a) end insert shall be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer. Any
employer who willfully refuses to rehire, promote, or otherwise
restore an employee or former employee who has been determined
to be eligible for rehiring or promotion by a grievance procedure,
arbitration, or hearing authorized by law shall be subject to a civil
penalty in an amount equal to three times the amount of the
employee’s lost wages and work benefits.

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 233 of the Labor Code is amended to read:

233.  

(a) Any employer who provides sick leave for employees
shall permit an employee to use in any calendar year the
employee’s accrued and available sick leave entitlement, in an
amount not less than the sick leave that would be accrued during
six months at the employee’s then current rate of entitlement, to
attend to an illness begin insert or the preventive care end insert of a child, parent, spouse,
or domestic partner of the employee, or to address a begin delete childcare end delete begin insert child
care end insert or school emergency. All conditions and restrictions placed
by the employer upon the use by an employee of sick leave also
shall apply to the use by an employee of sick leave to attend to an
illness begin insert or the preventive care end insert of his or her child, parent, spouse,
or domestic begin delete partner. end delete begin insert partner, or to address a child care or school
emergency. end insert This section does not extend the maximum period of
leave to which an employee is entitled under Section 12945.2 of
the Government Code or under the federal Family and Medical
Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.), regardless of
whether the employee receives sick leave compensation during
that leave.

(b) As used in this section:

(1) “Child” means a biological, foster, or adopted child, a
stepchild, a legal ward, a child of a domestic partner, or a child of
a person standing in loco parentis.

(2)  begin delete “Childcare end delete begin insert “Child care end insert or school emergency” means that begin delete a end delete
begin insert an employee’s end insert child cannot remain in a school or child care facility
due to one of the following:

(A) Illness of, or injury to, the child.

(B) Behavioral or discipline problems.

(C) Closure of the facility.

(D) A disaster or extreme weather conditions, including, but
not limited to, fire, earthquake, or flood.

(3) “Employer” means any person employing another under
any appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.

(4) “Parent” means a biological, foster, or adoptive parent, a
stepparent, or a legal guardian.

(5) (A) “Sick leave” means accrued increments of compensated
leave provided by an employer to an employee as a benefit of the
employment for use by the employee during an absence from the
employment for any of the following reasons:

(i) The employee is physically or mentally unable to perform
his or her duties due to illness, injury, or a medical condition of
the employee.

(ii) The absence is for the purpose of obtaining professional
diagnosis or treatment for a medical condition of the employee.

(iii) The absence is for other medical reasons of the employee,
such as pregnancy or obtaining a physical examination.

begin insert

(iv) The absence is to attend to an illness or the preventive care
of a child, parent, spouse, or domestic partner of the employee.

end insert begin insert

(v) The absence is to address a child care or school emergency.

end insert

(B) “Sick leave” does not include any benefit provided under
an employee welfare benefit plan subject to the federal Employee
Retirement Income Security Act of 1974 (Public Law 93-406, as
amended) and does not include any insurance benefit, workers’
compensation benefit, unemployment compensation disability
benefit, or benefit not payable from the employer’s general assets.

(c) An employer shall not deny an employee the right to use
sick leave or discharge, threaten to discharge, demote, suspend,
or in any manner discriminate against an employee for using, or
attempting to exercise the right to use, sick leave to attend to an
illness begin insert or the preventive care end insert of a child, parent, spouse, or domestic
partner of the employee, or to address a begin delete childcare end delete begin insert child care end insert or
school emergency.

(d) Any employee aggrieved by a violation of this section shall
be entitled to reinstatement and actual damages or one day’s pay,
whichever is greater, and to appropriate equitable relief.

(e) Upon the filing of a complaint by an employee, the Labor
Commissioner shall enforce this section in accordance with Chapter
4 (commencing with Section 79) of Division 1, including, but not
limited to, Sections 92, 96.7, 98, and 98.1 to 98.8, inclusive.
Alternatively, an employee may bring a civil action for the
remedies provided by this section in a court of competent
jurisdiction. If the employee prevails, the court may award
reasonable attorney’s fees.

(f) The rights and remedies specified in this section are
cumulative and nonexclusive and are in addition to any other rights
or remedies afforded by contract or under other law.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 245.5 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

245.5.  

As used in this article:

begin insert

(a) “Child care or school emergency” means that an employee’s
child cannot remain in a school or child care facility due to one
of the following:

end insert begin insert

(1) Illness of, or injury to, the child.

end insert begin insert

(2) Behavioral or discipline problems.

end insert begin insert

(3) Closure of the facility.

end insert begin insert

(4) A disaster or extreme weather conditions, including, but not
limited to, fire, earthquake, or flood.

end insert begin delete

(a)

end delete

begin insert (b) end insert  “Employee” does not include the following:

(1) An employee covered by a valid collective bargaining
agreement if the agreement expressly provides for the wages, hours
of work, and working conditions of employees, and expressly
provides for paid sick days or a paid leave or paid time off policy
that permits the use of sick days for those employees, final and
binding arbitration of disputes concerning the application of its
paid sick days provisions, premium wage rates for all overtime
hours worked, and regular hourly rate of pay of not less than 30
percent more than the state minimum wage rate.

(2) An employee in the construction industry covered by a valid
collective bargaining agreement if the agreement expressly provides
for the wages, hours of work, and working conditions of
employees, premium wage rates for all overtime hours worked,
and regular hourly pay of not less than 30 percent more than the
state minimum wage rate, and the agreement either (A) was entered
into before January 1, 2015, or (B) expressly waives the
requirements of this article in clear and unambiguous terms. For
purposes of this subparagraph, “employee in the construction
industry” means an employee performing onsite work associated
with construction, including work involving alteration, demolition,
building, excavation, renovation, remodeling, maintenance,
improvement, repair work, and any other work as described by
Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code, and other similar or related
occupations or trades.

(3) A provider of in-home supportive services under Section
14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing
with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the
Welfare and Institutions Code.

(4) An individual employed by an air carrier as a flight deck or
cabin crew member that is subject to the provisions of Title II of
the federal Railway Labor Act (45 U.S.C. begin insert Sec. end insert 181 et seq.),
provided that the individual is provided with compensated time
off equal to or exceeding the amount established in paragraph (1)
of subdivision (b) of Section 246.

begin delete

(b)

end delete

begin insert (c) end insert  “Employer” means any person employing another under any
appointment or contract of hire and includes the state, political
subdivisions of the state, and municipalities.

begin delete

(c)

end delete

begin insert (d) end insert  “Family member” means any of the following:

(1) A child, which for purposes of this article means a biological,
adopted, or foster child, stepchild, legal ward, or a child to whom
the employee stands in loco parentis. This definition of a child is
applicable regardless of age or dependency status.

(2) A biological, adoptive, or foster parent, stepparent, or legal
guardian of an employee or the employee’s spouse or registered
domestic partner, or a person who stood in loco parentis when the
employee was a minor child.

(3) A spouse.

(4) A registered domestic partner.

(5) A grandparent.

(6) A grandchild.

(7) A sibling.

begin delete

(d)

end delete

begin insert (e) end insert  “Health care provider” has the same meaning as defined in
paragraph (6) of subdivision (c) of Section 12945.2 of the
Government Code.

begin delete

(e)

end delete

begin insert (f) end insert  “Paid sick days” means time that is compensated at the same
wage as the employee normally earns during regular work hours
and is provided by an employer to an employee for the purposes
described in Section 246.5.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 246.5 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

246.5.  

(a) Upon the oral or written request of an employee,
an employer shall provide paid sick days for the following
purposes:

(1) Diagnosis, care, or treatment of an existing health condition
of, or preventive care for, an employee or an employee’s family
member.

begin insert

(2) To address a child care or school emergency.

end insert begin delete

(2)

end delete

begin insert (3) end insert  For an employee who is a victim of domestic violence, sexual
assault, or stalking, the purposes described in subdivision (c) of
Section 230 and subdivision (a) of Section 230.1.

(b) An employer shall not require as a condition of using paid
sick days that the employee search for or find a replacement worker
to cover the days during which the employee uses paid sick days.

(c) (1) An employer shall not deny an employee the right to
use accrued sick days, discharge, threaten to discharge, demote,
suspend, or in any manner discriminate against an employee for
using accrued sick days, attempting to exercise the right to use
accrued sick days, filing a complaint with the department or
alleging a violation of this article, cooperating in an investigation
or prosecution of an alleged violation of this article, or opposing
any policy or practice or act that is prohibited by this article.

(2) There shall be a rebuttable presumption of unlawful
retaliation if an employer denies an employee the right to use
accrued sick days, discharges, threatens to discharge, demotes,
suspends, or in any manner discriminates against an employee
within 30 days of any of the following:

(A) The filing of a complaint by the employee with the Labor
Commissioner or alleging a violation of this article.

(B) The cooperation of an employee with an investigation or
prosecution of an alleged violation of this article.

(C) Opposition by the employee to a policy, practice, or act that
is prohibited by this article.