BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1166 (Jackson) - Unlawful employment practice:  parental  
          leave
          
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          |Version: April 21, 2016         |Policy Vote: L. & I.R. 4 - 1,   |
          |                                |          JUD. 4 - 2            |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: May 2, 2016       |Consultant: Robert Ingenito     |
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          This bill meets the criteria for referral to the Suspense File.


          


          Bill  
          Summary: SB 1166 would (1) establish the New Parent Leave Act,  
          making it an unlawful employment practice for specified  
          employers to refuse to allow specified employees to take up to  
          12 weeks of parental leave to bond with a new child within one  
          year of the child's birth, adoption, or foster care placement,  
          and (2) prohibit an employer from refusing to maintain and pay  
          for coverage under a group health plan for an employee who takes  
          this leave.


          Fiscal  
          Impact: The Department of Fair Employment and Housing (DFEH)  
          indicates that it would incur General Fund costs of $248,000 in  
          2016-17, and $226,000 annually in the out years to implement the  
          provisions of the bill.







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          Background: In 1980, California enacted the California Fair Employment and  
          Housing Act (FEHA), which (1) prohibits various employment  
          discrimination practices, and (2) includes protections for  
          employees taking pregnancy disability leave (PDL). PDL allows an  
          employee to take a leave for a reasonable period of time, not to  
          exceed four months, and thereafter return to work, as specified.  
          The employee is entitled to utilize any accrued vacation leave  
          during this period of time, which means that period during which  
          the female employee is disabled on account of pregnancy,  
          childbirth, or a related medical condition. PDL provides an  
          employee the right to take "intermittent" leave for a  
          pregnancy-related disability, as needed, which can be taken in  
          small increments (hours, days, weeks, or months).  For example,  
          a pregnant employee, with the advice of her doctor, has the  
          right to take a few hours of leave each day or on certain days  
          because of severe morning sickness or for a doctor's  
          appointment, or for other prenatal care.  An employee who is  
          taking PDL is entitled to the continuation of her health  
          benefits for the entire duration of her leave, up to four  
          months.
          Additionally, under FEHA is the California Family Rights Act  
          (CFRA, enforced by DFEH), which makes it an unlawful employment  
          practice for an employer of 50 or more employees to refuse to  
          grant a request by an employee to take an unpaid family care  
          leave of up to four months unless a refusal is necessary to  
          prevent undue hardship to the employer's operation. Family care  
          leave may be taken in one or more periods, as long as it does  
          not exceed a total of four months within a 24 month period from  
          the date the leave commenced. However, when family care leave is  
          taken in conjunction with the maximum pregnancy disability  
          leave, family care leave shall be for no more than one month. To  
          be eligible for family care leave, an employee must have more  
          than one year of continuous service with the employer and must  
          be eligible for other employee benefits. 


          In 1993, the federal Family and Medical Leave Act (FMLA),  
          enforced by the United States Department of Labor, was . It  
          requires employers of 50 of more employees to provide unpaid  
          leave of up to 12 weeks annually to employees for similar  
          reasons. Additionally, FMLA covers the medical condition of the  
          employee, and permits leave for the placement of a child for  








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          foster care. Employers covered by the law are required to  
          maintain any pre-existing health coverage during the leave  
          period and, once the leave period is concluded, to reinstate the  
          employee to the same or equivalent job.  The federal law also  
          specifies that FMLA shall not supersede any provision of State  
          or local law that provides greater family or medical leave  
          rights.  AB 1460 (Moore, Chapter 827, Statutes of 1993)  
          conformed California's employment discrimination laws under FEHA  
          to the new requirements under the FMLA.




          Proposed Law:  
           This bill would, among other things, do the following:
                 Establish the New Parent Leave Act and make it an  
               unlawful employment practice under FEHA for an employer, as  
               defined, to do either of the following:


                  o         Refuse to allow an employee, with 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, upon request, to take up  
                    to 12 weeks of parental leave to bond with a new child  
                    within one year of the child's birth, adoption, or  
                    foster care placement, and provide:


                                     if, on or before the commencement of  
                         this parental leave, the employer does not  
                         provide a guarantee of employment in the same or  
                         a comparable position upon the termination of the  
                         leave, the employer would be deemed to have  
                         refused to allow the leave; and


                                     the employee would be entitled to  
                         utilize accrued vacation pay, paid sick time,  
                         other accrued paid time off, or other paid or  
                         unpaid time off negotiated with the employer,  
                         during the period of parental leave; and










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                  o         Refuse to maintain and pay for coverage for an  
                    eligible employee who takes parental leave pursuant to  
                    this section under a group health plan, as defined,  
                    for the duration of the leave, not to exceed 12 weeks  
                    over the course of a 12-month period, commencing on  
                    the date that the parental leave commences, at the  
                    level and under the conditions that coverage would  
                    have been provided if the employee had continued to  
                    work in his or her position for the duration of the  
                    leave.


                 Define "employer" to mean either: (1) any person who  
               directly employs 10 or more persons to perform services for  
               a wage or salary, or (2) the State, and any political or  
               civil subdivision of the state and cities.


                 Require that parental leave run concurrently with leave  
               taken pursuant to CFRA and the FMLA, except for leave taken  
               for a disability on account of pregnancy, childbirth, or  
               related medical condition.


                 Specify that the aggregate amount of leave taken  
               pursuant to this bill, CFRA, or the FMLA, or any  
               combination of these laws, except for leave taken for a  
               disability on account of pregnancy, childbirth, or related  
               medical conditions, shall not exceed 12 workweeks in a 12  
               month period.


                 Entitle an employee to take, in addition to leave  
               provided pursuant to this bill, CFRA, and the FMLA, leave  
               provided pursuant to PDL if the employee is otherwise  
               qualified for that leave.







          Related  








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          Legislation: SB 406 (Jackson, 2015) would have expanded various  
          provisions of law related to unpaid family and medical leave  
          under the California Family Rights Act (CFRA).  The bill was  
          vetoed by the Governor. 


          Staff  
          Comments: DFEH anticipates that the bill would generate about  
          400 additional complaints per year, requiring three new  
          positions (investigators) at a cost of $248,000 in 201617, and  
          $226,000 annually in the out-years. DFEH would not receive any  
          additional federal funds for this work because its work share  
          agreement with the Equal Employment Opportunity Commission  
          excludes CFRA complaints (to which this bill pertains) and  
          anything else not covered by the Civil Rights Act of 1964.


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