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).