BILL NUMBER: SB 1149 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 31, 2000
PASSED THE ASSEMBLY AUGUST 30, 2000
AMENDED IN ASSEMBLY AUGUST 29, 2000
AMENDED IN SENATE MAY 18, 1999
AMENDED IN SENATE APRIL 5, 1999
INTRODUCED BY Senator Hayden
FEBRUARY 26, 1999
An act to amend Section 12945.2 of the Government Code, relating
to employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 1149, Hayden. Family care and medical leave: employers.
Existing law makes it an unlawful employment practice for any
employer, as defined, 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, as defined, in
connection with the birth or adoption or serious health condition of
the employee's child, or to care for a parent or spouse who has a
serious health condition, or because of the employee's own serious
health condition, as defined.
This bill would also provide that an employee may take family care
and medical leave to care for a grandparent or sibling, or domestic
partner, as defined, who has a serious health condition.
Existing law, for purposes of these provisions, 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 define "child" as a biological, adopted, or foster
child, a stepchild, a legal ward, or a child of a person standing in
loco parentis.
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 50 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) "Domestic partners" means two adult persons in a committed
relationship of mutual caring where all of the following conditions
apply:
(A) Both persons share a common residence.
(B) Both persons agree to be responsible for each other's basic
living expenses during the domestic partnership.
(C) Neither person is married or a member of another domestic
partnership.
(D) Both persons are at least 18 years of age.
(E) Both persons file a Declaration of Domestic Partnership with
the employer or a municipal or state domestic partnership registry.
(3) "Employer" means either of the following:
(A) Any person who directly employs 50 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.
(4) "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 grandparent, sibling, spouse, or
domestic partner 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.
(5) "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.
(6) "FMLA" means the federal Family and Medical Leave Act of 1993
(P.L. 103-3).
(7) "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.
(8) "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.
(9) "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 an individual other than the employee 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.