BILL NUMBER: SB 1149	AMENDED
	BILL TEXT

	AMENDED IN SENATE   MAY 18, 1999
	AMENDED IN SENATE   APRIL 5, 1999

INTRODUCED BY   Senator Speier
   (Coauthors:  Assembly Members Knox and Kuehl)

                        FEBRUARY 26, 1999

   An act to amend Section 12945.2 of, and to add Section 12945.3 to,
the Government Code, relating to employees.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1149, as amended, Speier.  Family care and medical leave:
employers.
   Existing law makes it an unlawful employment practice for any
employer to refuse to grant a request by any 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, to take up to a total of 12 workweeks in any 12-month period
for family care and medical leave.  Existing law exempts certain
employers from that provision by providing that it is not 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.  Existing law defines "employer," for purposes
of those requests, as any person who directly employs 50 or more
persons to perform services for a wage or salary.  Existing law
defines "child" as a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis who is either under 18 years of age or an adult dependent
child.
   This bill would instead provide that exemption for employers that
employ less than 20 employees within 75 miles of the worksite where
that employee is employed and would define "employer" as any person
who directly employs 20 or more persons to perform services for a
wage or salary.  This bill, in addition, would define "child" as a
biological, adopted, or foster child, a stepchild, a legal ward, or a
child of a person standing in loco parentis.
   Existing law also prohibits any employer, because of the
pregnancy, childbirth, or related medical condition of any female
employee, to, among other things, refuse to appoint her, to refuse to
permit her to receive the same benefits or privileges of employment
granted by that employer to other persons not so affected who are
similar in their ability or inability to work, as specified, or to
refuse to permit her to take a leave on account of pregnancy for a
reasonable period of time not to exceed 4 months, as specified.
   This bill would require that, in addition to the responsibilities
imposed on employers with respect to family care and medical leave
and leave for pregnancy, childbirth, or a related medical condition,
that the Department of Fair Employment and Housing (department) make
information sheets available to employers upon the request of an
employer.
   This bill would require each employer to distribute the
information sheets provided by the department to its employees,
unless the employer provides information to its employees relating to
family care and medical leave and pregnancy disability leave that
contains, among other things, the definition of family care and
medical leave and pregnancy and disability leave entitlements, and
information about the right to take leave to care for the serious
health condition of a child, spouse, or parent, or to bond with a
newborn, adopted, or foster child.  Each employer would also be
required to give its employees reasonable advance notice of any
requirements it adopts pertaining to family care and medical leave
and pregnancy disability leave, including an employee's rights,
duties, and obligations when taking a leave, and an explanation of
any employer attendance or leave policies and how those requirements
comply with the family care and medical leave and pregnancy
disability leave requirements.  If an employer fails to provide that
information, the employer would be precluded from taking certain
actions against the employee, as specified.  
   This bill would require every employer to establish, implement,
and maintain an effective training program to ensure compliance with
the family care and medical leave provisions, and would require the
training program to, among other things, be provided to all managers,
supervisors, human resource directors, health benefit
administrators, or other personnel with responsibility for any aspect
of the family care and medical leave or pregnancy disability leave
entitlements of employees. 
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 12945.2 of the Government Code is amended to
read:
   12945.2.  (a) Except as provided in subdivision (b), it shall be
an unlawful employment practice for any employer, as defined in
paragraph (2) of subdivision (c), to refuse to grant a request by any
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, to take up to a total of 12 workweeks in
any 12-month period for family care and medical leave.  Family care
and medical leave requested pursuant to this subdivision shall not be
deemed to have been granted unless the employer provides the
employee, upon granting the leave request, a guarantee of employment
in the same or a comparable position upon the termination of the
leave.  The commission shall adopt a regulation specifying the
elements of a reasonable request.
   (b) Notwithstanding subdivision (a), 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 20 employees within 75 miles of the worksite where that
employee is employed.
   (c) For purposes of this section:
   (1) "Child" means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis.
   (2) "Employer" means either of the following:
   (A) Any person who directly employs 20 or more persons to perform
services for a wage or salary.
   (B) The state, cities, and any other political or civil
subdivision of the state.
   (3) "Family care and medical leave" means any of the following:
   (A) Leave for reason of the birth of a child of the employee, the
placement of a child with an employee in connection with the adoption
or foster care of the child by the employee, or the serious health
condition of a child of the employee.
   (B) Leave to care for a parent or a spouse who has a serious
health condition.
   (C) Leave because of an employee's own serious health condition
that makes the employee unable to perform the functions of the
position of that employee, except for leave taken for disability on
account of pregnancy, childbirth, or related medical conditions.
   (4) "Employment in the same or a comparable position" means
employment in a position that has the same or similar duties and pay
that can be performed at the same or similar geographic location as
the position held prior to the leave.
   (5) "FMLA" means the federal Family and Medical Leave Act of 1993
(P.L. 103-3).
   (6) "Health care provider" means any of the following:
   (A) An individual holding either a physician's and surgeon's
certificate issued pursuant to Article 4 (commencing with Section
2080) of Chapter 5 of Division 2 of the Business and Professions
Code, an osteopathic physician's and surgeon's certificate issued
pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5
of Division 2 of the Business and Professions Code, or an individual
duly licensed as a physician, surgeon, or osteopathic physician or
surgeon in another state or jurisdiction, who directly treats or
supervises the treatment of the serious health condition.
   (B) Any other person determined by the United States Secretary of
Labor to be capable of providing health care services under the FMLA.

   (7) "Parent" means 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.
   (8) "Serious health condition" means an illness, injury,
impairment, or physical or mental condition that involves either of
the following:
   (A) Inpatient care in a hospital, hospice, or residential health
care facility.
   (B) Continuing treatment or continuing supervision by a health
care provider.
   (d) An employer shall not be required to pay an employee for any
leave taken pursuant to subdivision (a), except as required by
subdivision (e).
   (e) An employee taking a leave permitted by subdivision (a) may
elect, or an employer may require the employee, to substitute
 ,  for leave allowed under subdivision (a) 
,  any of the employee's accrued vacation leave or other
accrued time off during this period or any other paid or unpaid time
off negotiated with the employer.  If an employee takes a leave
because of the employee's own serious health condition, the employee
may also elect, or the employer may also require the employee, to
substitute accrued sick leave during the period of the leave.
However, an employee shall not use sick leave during a period of
leave in connection with the birth, adoption, or foster care of a
child, or to care for a child, parent, or spouse with a serious
health condition, unless mutually agreed to by the employer and the
employee.
   (f) (1) During any period that an eligible employee takes leave
pursuant to subdivision (a) or takes leave that qualifies as leave
taken under the FMLA, the employer shall maintain and pay for
coverage under a "group health plan," as defined in Section 5000(b)
(1) of the Internal Revenue Code of 1986, for the duration of the
leave, not to exceed 12 workweeks in a 12-month period, commencing on
the date leave taken under the FMLA commences, at the level and
under the conditions coverage would have been provided if the
employee had continued in employment continuously for the duration of
the leave.  Nothing in the preceding sentence shall preclude an
employer from maintaining and paying for coverage under a "group
health plan" beyond 12 workweeks.  An employer may recover the
premium that the employer paid as required by this subdivision for
maintaining coverage for the employee under the group health plan if
both of the following conditions occur:
   (A) The employee fails to return from leave after the period of
leave to which the employee is entitled has expired.
   (B) The employee's failure to return from leave is for a reason
other than the continuation, recurrence, or onset of a serious health
condition that entitles the employee to leave under subdivision (a)
or other circumstances beyond the control of the employee.
   (2) Any employee taking leave pursuant to subdivision (a) shall
continue to be entitled to participate in employee health plans for
any period during which coverage is not provided by the employer
under paragraph (1), employee benefit plans, including life,
short-term, or long-term disability or accident insurance, pension
and retirement plans, and supplemental unemployment benefit plans to
the same extent and under the same conditions as apply to an unpaid
leave taken for any purpose other than those described in subdivision
(a).  In the absence of these conditions an employee shall continue
to be entitled to participate in these plans and, in the case of
health and welfare employee benefit plans, including life,
short-term, or long-term disability or accident insurance, or other
similar plans, the employer may, at his or her discretion, require
the employee to pay premiums, at the group rate, during the period of
leave not covered by any accrued vacation leave, or other accrued
time off, or any other paid or unpaid time off negotiated with the
employer, as a condition of continued coverage during the leave
period.  However, the nonpayment of premiums by an employee shall not
constitute a break in service, for purposes of longevity, seniority
under any collective bargaining agreement, or any employee benefit
plan.
   For purposes of pension and retirement plans, an employer shall
not be required to make plan payments for an employee during the
leave period, and the leave period shall not be required to be
counted for purposes of time accrued under the plan.  However, an
employee covered by a pension plan may continue to make contributions
in accordance with the terms of the plan during the period of the
leave.
   (g) During a family care and medical leave period, the employee
shall retain employee status with the employer, and the leave shall
not constitute a break in service, for purposes of longevity,
seniority under any collective bargaining agreement, or any employee
benefit plan.  An employee returning from leave shall return with no
less seniority than the employee had when the leave commenced, for
purposes of layoff, recall, promotion, job assignment, and
seniority-related benefits such as vacation.
   (h) If the employee's need for a leave pursuant to this section is
foreseeable, the employee shall provide the employer with reasonable
advance notice of the need for the leave.
   (i) If the employee's need for leave pursuant to this section is
foreseeable due to a planned medical treatment or supervision, the
employee shall make a reasonable effort to schedule the treatment or
supervision to avoid disruption to the operations of the employer,
subject to the approval of the health care provider of the individual
requiring the treatment or supervision.
   (j) (1) An employer may require that an employee's request for
leave to care for a child, a spouse, or a parent who has a serious
health condition be supported by a certification issued by the health
care provider of the individual requiring care.  That certification
shall be sufficient if it includes all of the following:
   (A) The date on which the serious health condition commenced.
   (B) The probable duration of the condition.
   (C) An estimate of the amount of time that the health care
provider believes the employee needs to care for the individual
requiring the care.
   (D) A statement that the serious health condition warrants the
participation of a family member to provide care during a period of
the treatment or supervision of the individual requiring care.
   (2) Upon expiration of the time estimated by the health care
provider in subparagraph (C) of paragraph (1), the employer may
require the employee to obtain recertification, in accordance with
the procedure provided in paragraph (1), if additional leave is
required.
   (k) (1) An employer may require that an employee's request for
leave because of the employee's own serious health condition be
supported by a certification issued by his or her health care
provider.  That certification shall be sufficient if it includes all
of the following:
   (A) The date on which the serious health condition commenced.
   (B) The probable duration of the condition.
   (C) A statement that, due to the serious health condition, the
employee is unable to perform the function of his or her position.
   (2) The employer may require that the employee obtain subsequent
recertification regarding the employee's serious health condition on
a reasonable basis, in accordance with the procedure provided in
paragraph (1), if additional leave is required.
   (3) (A)  If the employer has reason to doubt the validity of the
certification provided pursuant to this section, the employer may
require, at the employer's expense, that the employee obtain the
opinion of a second health care provider, designated or approved by
the employer, concerning any information certified under paragraph
(1).
   (B) The health care provider designated or approved under
subparagraph (A) shall not be employed on a regular basis by the
employer.
   (C)  If the second opinion described in subparagraph (A) differs
from the opinion in the original certification, the employer may
require, at the employer's expense, that the employee obtain the
opinion of a third health care provider, designated or approved
jointly by the employer and the employee, concerning the information
certified under paragraph (1).
   (D) The opinion of the third health care provider concerning the
information certified under paragraph (1) shall be considered to be
final and shall be binding on the employer and the employee.
   (4) As a condition of an employee's return from leave taken
because of the employee's own serious health condition, the employer
may have a uniformly applied practice or policy that requires the
employee to obtain certification from his or her health care provider
that the employee is able to resume work. Nothing in this paragraph
shall supersede a valid collective bargaining agreement that governs
the return to work of that employee.
   (l) It shall be an unlawful employment practice for an employer to
refuse to hire, or to discharge, fine, suspend, expel, or
discriminate against, any individual because of any of the following:

   (1) An individual's exercise of the right to family care and
medical leave provided by subdivision (a).
   (2) An individual's giving information or testimony as to his or
her own family care and medical leave, or another person's family
care and medical leave, in any inquiry or proceeding related to
rights guaranteed under this section.
   (m)  An employer shall take all reasonable steps necessary to
ensure that employees are afforded all family care and medical leave
entitlements provided in this section and to prevent any unlawful
employment actions from being taken against any applicant or employee
in violation of subdivision (l).
   (n) The provisions of this section shall be construed as separate
and distinct from those of Section 12945.
   (o) Leave provided for pursuant to this section may be taken in
one or more periods.  The 12-month period during which 12 workweeks
of leave may be taken under this section shall run concurrently with
the 12-month period under the FMLA, and shall commence the date leave
taken under the FMLA commences.
   (p) If both parents entitled to leave under subdivision (a) 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 the amount specified in subdivision (a).
   (q) (1) Notwithstanding subdivision (a), an employer may refuse to
reinstate an employee returning from leave to the same or a
comparable position if all of the following apply:
   (A) The employee is a salaried employee who is among the highest
paid 10 percent of the employer's employees who are employed within
75 miles of the worksite at which that employee is employed.
   (B) The refusal is necessary to prevent substantial and grievous
economic injury to the operations of the employer.
   (C) The employer notifies the employee of the intent to refuse
reinstatement at the time the employer determines the refusal is
necessary under subparagraph (B).
   (2)  If the leave has already commenced, the employer shall give
the employee a reasonable opportunity to return to work following the
notice prescribed by subparagraph (C).
   (r) Leave taken by an employee pursuant to this section shall run
concurrently with leave taken pursuant to the FMLA, except for any
leave taken under the FMLA for disability on account of pregnancy,
childbirth, or related medical conditions.  The aggregate amount of
leave taken under this section or the FMLA, or both, except for leave
taken for disability on account of pregnancy, childbirth, or related
medical conditions, shall not exceed 12 workweeks in a 12-month
period.  An employee is entitled to take, in addition to the leave
provided for under this section and the FMLA, the leave provided for
in Section 12945, if the employee is otherwise qualified for that
leave.
  SEC. 2.  Section 12945.3 is added to the Government Code, to read:

   12945.3.  (a) For purposes of this section:
   (1) "Employer" means an employer as defined in paragraph (2) of
subdivision (c) of Section 12945.2.
   (2) "PDL" means pregnancy disability leave, as established
pursuant to Section 12945.
   (b) The department shall make information sheets on the rights of
employees to take family care and medical leave under Section 12945.2
and on PDL entitlements available to employers for reproduction and
distribution by employers to their employees.  The department shall
provide one copy of each information sheet to an employer upon
request.  The information sheets shall be available at each office of
the department, and shall be mailed upon request if the request
includes a self-addressed envelope with postage affixed.  Multiple
copies of the information sheets shall be made available through the
Office of Documents and Publications of the Department of General
Services.
   (c) In addition to the duties imposed on employers pursuant to
subdivision (m) of Section 12945.2, each employer shall ensure that
its workplace is free from employment practices that are unlawful
under Section 12945.2 and any rules or regulations adopted pursuant
to Section 12945.2 by implementing all of the following minimum
requirements:
   (1) Each employer shall obtain the information sheets on Section
12945.2 and PDL entitlements from the department.  Each employer
shall distribute copies of the information sheets to its employees,
unless the employer provides information to its employees that
contains, at a minimum, the following:
   (A) The definition of family care and medical leave under Section
12945.2 and the entitlements to PDL under Section 12945.
   (B) The right of an eligible employee under Section 12945.2 to
take leave of up to 12 weeks, with the right to reinstatement and
continued health care coverage during leave.
   (C) The right of an eligible employee under Section 12945.2 to
take leave to care for one's own serious health condition or the
serious health condition of a child, spouse, or parent.
   (D) The right of an eligible employee to take leave under Section
12945.2 to bond with a newborn, adopted, or foster child.
   (E) The right of an eligible employee to take leave under Section
12945.2 on an intermittent or reduced schedule basis, if medically
necessary.
   (F) The right of an eligible employee under Section 12945.2 to use
sick, vacation, personal, or other paid leave while on leave under
Section 12945.2.
   (G) The right of an eligible employee who is disabled by
pregnancy, childbirth, or a related medical condition to take PDL of
up to four months pursuant to Section 12945, with the right to
reinstatement, even if she is not otherwise eligible for leave under
Section 12945.2.
   (H) A complete explanation in writing of an employee's rights,
duties, and obligations when asserting his or her right to leave
under Sections 12945 and 12945.2.
   (I) The internal complaint process made available by the employer
to the employee.
   (J) The legal remedies and complaint process available to
employees through the department and commission with regard to
disputes arising under Section 12945, regarding PDL requests, or
Section 12945.2.
   (K) Directions on how employees may contact the department and
commission.
   (L) The prohibitions established by subdivision (f) of Section
12940, subdivision (l) of Section 12945.2, Section 19702.3, and
Sections 7287.8 and 7297.7 of Title 2 of the California Code of
Regulations, against retaliating against any employee and against
opposing the practices prohibited by this article or for filing a
complaint with, or otherwise participating in an investigation,
proceeding, or hearing conducted by, the department or commission.
   (d) Each employer shall deliver the information sheets or
information required to be distributed to all employees pursuant to
subdivision (c) in a manner that ensures distribution to each
employee, such as including the information sheets or information
with the employee's paycheck.
   (e) Each employer shall provide its employees with reasonable
advance notice of any requirements that it adopts pertaining to
family care and medical leave or PDL, including any requirements
relating to an employee's rights, duties, and obligations when taking
a leave and an explanation of any employer attendance or leave
policies, or both, and how those policies operate in compliance with
Section 12945.2 and PDL requirements.  If an employer fails to
provide this information, the employer may not take any adverse
action against the employee or deny the employee leave for failing to
provide the employer with advance notice of the need to take the
leave.  
   (f) Each employer shall establish, implement, and maintain an
effective training program to ensure compliance with the requirements
of Section 12945.2.  The training program shall, at a minimum,
include the following:
   (1) The employer shall train all managers, supervisors, human
resource directors, health benefit administrators, or other personnel
with responsibility for any aspect of employees' leave under Section
12945.2 or PDL entitlements, or both, including maintenance of
health benefits.
   (2) The employer shall train each employee described in paragraph
(1), within six months of the effective date of this section.
Thereafter, training shall be provided to each employee (A) no later
than three months after the date the employee was hired, (B) no later
than three months after any statutory or regulatory changes are made
to Section 12945.2 or any regulations thereto, and (C) no less than
once per year.
   (3) The employer shall identify the person or persons responsible
for implementing the training program and shall maintain a record of
each training session conducted, including dates of training sessions
and the names and job titles of the trainer and employees attending
the training sessions.  The employer shall maintain the records of
each training session for a period of three years from the date of
the training session.
   (4) The training shall effectively communicate the employer's
obligations and the employees' entitlements and obligations under
Section 12945.2, including the relationship between entitlements to
leave under Section 12945.2 and PDL, and shall address all
requirements set forth in subdivisions (c), (d), and (e).