BILL ANALYSIS
AB 849
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 849 (Swanson) - As Introduced: February 26, 2009
SUBJECT : Family and medical leave.
SUMMARY : Amends the California Family Rights Act (CFRA) to
expand the definition of family member. Specifically, this
bill :
1)Amends the definition of "child" to eliminate references to
the age and dependent status of the child.
2)Expands the scope of permissible family and medical leave to
include leave to care for a sibling, grandparent, grandchild,
or parent-in-law with a serious health condition.
3)Specifies that permissible leave includes leave to care for a
domestic partner with a serious health condition.
EXISTING LAW
1)Requires employers with 50 or more employees to provide
covered employees, upon request, with up to 12 weeks of
protected unpaid leave during any 12-month period for the
following reasons:
a) For the birth of a child or the placement of a child in
connection with the adoption or placement in foster care of
the child with the employee.
b) To care for a parent, spouse or child with a serious
health condition.
c) Because of the employee's own serious health condition.
2)Defines a "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 the age of 18 or is an
adult dependent child.
3)Defines an "employer" as either any person who directly
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employs 50 or more persons to perform services for a wage or a
salary, or the state, and any political or civil subdivision
of the state and cities.
4)Defines a "parent" as 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.
5)Defines a "serious health condition" as an illness, injury,
impairment, or physical or mental condition that involves
either inpatient care or continuing treatment or supervision
by a health care provider.
6)Requires an employee to provide the employer with reasonable
advance notice of the need for the leave, if foreseeable.
7)Authorizes an employer to require that an employee request for
leave for a serious health condition be certified by a health
care provider, as specified, and that it subsequently may be
recertified if additional leave is requested.
8)Establishes a process whereby an employer may contest the
validity of the certification of a serious health condition
and obtain an ultimate determination that is final and binding
on the employer and the employee.
FISCAL EFFECT : Unknown
COMMENTS : The Family and Medical Leave Act (FMLA) is the
federal law that provides eligible employees with up to 12-weeks
of unpaid family and medical leave for qualified reasons (29
U.S.C. 2601). California's state law counterpart to the FMLA
is the California Family Rights Act (CFRA), also known as the
Moore-Brown-Roberti Family Rights Act (Government Code
12945.2 and 19702.3).
In addition to unpaid leave, SB 1661(Kuehl), Chapter # 901,
Statutes of 2002, established the Paid Family Leave Program,
also known as the Family Temporary Disability Insurance Program.
That law guarantees California workers up to six weeks of paid
family leave at 55 percent of their base pay. Deductions from
eligible employee wages began on January 1, 2004, and benefits
were made payable beginning July 1, 2004.
Expanding the Definition of Child
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Existing state law defines a "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 the age of 18 or
is an adult dependent child. The regulations implementing the
CFRA specify that an adult dependent child is "an individual who
is 18 years of age or older and who is incapable of self-care
because of a mental or physical disability (2 C.C.R.
7297.0(c)). This bill eliminates the reference to age and
dependency status of a child.
FMLA COMPARISON: The FMLA uses a definition of "son or
daughter" that specifies that the individual must be either
under the age of 18 or age 18 or older and "incapable of
self-care because of a mental or physical disability" (29
C.F.R. 825.113(c)), identical to the definition under the
existing CFRA regulations.
Expanding Coverage for Siblings, Grandparents, Grandchildren,
and Parents-in-Law
Existing state law defines "family and medical leave" to include
leave to care for a parent, spouse or child with a serious
health condition. The CFRA regulations specify that the term
"spouse" means a partner in marriage as defined in Family Code
Section 300 (2 C.C.R. 7297.0(p)). Family Code Section 300
states that "[m]arriage is a personal relation arising out of a
civil contract between a man and a woman?"
However, AB 205 (Goldberg), Chapter # 421, Statutes of 2003,
added Section 297.5(a) to the Family Code as follows:
"Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law,
whether they derive from statutes, administrative
regulations, court rules, government policies, common law,
or any other provisions or sources of law, as are granted
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and imposed upon spouses."<1>
This bill expands the coverage of existing law to include leave
to care for a sibling, grandparent, grandchild, or parent-in-law
with a serious health condition, and specifies that the
permissible leave includes domestic partners with a serious
health condition. The bill provides that the term domestic
partner has the same meaning as set forth in Section 297 of the
Family Code, which defines domestic partners as "two adults who
have chosen to share one another's lives in an intimate and
committed relationship of mutual caring."
FMLA COMPARISON: The FMLA authorizes an employee to take
leave to care for a spouse, son or daughter, or parent with
a serious health condition. The federal regulations
specify that the term spouse means "a husband or wife as
defined or recognized under State law for purposes of
marriage in the State where the employee resides, including
common law marriage in States where it is recognized" (29
C.F.R. 825.113(a)).
Other State Family Leave Laws
Several states have more expansive definitions of family in
their family medical leave laws than California's current
definitions. Connecticut, Alaska, Oregon, Rhode Island, and
Wisconsin all have family leave laws that include a spouse's
parent (CT Gen. Stat. 31-51kk(7); AL 39.20.550(4); OR Rev.
Stat. 659.A.150; RI Gen. Laws 28-48-1; Wis. Stat. Ann.
103.10(1)(f)). New Jersey's family leave law includes a
spouse's parent and step-parent (NJ St. 34:11B-3(h)).
Washington allows workers who have sick leave to use it to care
for a child, spouse, parent, parent-in-law, or grandparent with
a serious health condition or emergency condition (WA Rev. Code
49.12.270). Massachusetts' law permits workers 24 hours of
leave per year to accompany an elderly relative, defined as a
person 60 years or older who is related by blood or marriage to
---------------------------
<1> On June 29, 2005, the California Supreme Court, without
comment, let stand an earlier Court of Appeal decision upholding
the validity of AB 205. That decision held that domestic
partnership is not marriage, and that the voters did not intend
to prohibit the Legislature from extending legal protections to
domestic partners when they enacted Proposition 22 in 2000.
Knight v. Superior Court , S133961.
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the employee, to routine medical or dental appointments or
appointments for other professional services related to the
elder's care (Mass Gen. Ann. 149 52D).
Mississippi grants state employees the right to take leave to
care for immediate family, including siblings, grandchildren,
grandparents, and in-laws (Miss. Code Ann. 25-3-95(2)-(3)).
Georgia's sick leave for public employees covers siblings (GA
ADC 478-1-.18.303.2).
Perhaps the most expansive definitions are those contained in
the family leave laws of the District of Columbia and Hawaii.
The District of Columbia allows leave to care for any person to
whom the employee is related by blood, legal custody, or
marriage (DC Code Ann. 32-501). Hawaii allows leave to care
for a child, parent, parent-in-law, spouse, reciprocal
beneficiary, legal guardian, grandparent, or grandparent-in-law
(Haw. Rev. Stat. 391-1).
ARGUMENTS IN SUPPORT :
Supporters argue that this bill is necessary to address the
reality of today's familial dynamics, especially in California.
California has the second highest percentage of
multi-generational households in the country. Nearly half of
Californians are single, and their closest relative may be a
sibling. Supporters argue that because of the overly narrow
definition of family, CFRA currently excludes significant family
members from the ability to care for their loved ones. By
expanding CFRA to include adult children, siblings,
grandparents, grandchildren, and parents-in-law, we will allow
many more California families to have the opportunity to care
for one another without jeopardizing their long-term financial
security.
ARGUMENTS IN OPPOSITION :
The California Grocers Association (CGA) argues that in the
current economic climate, providing unpaid leave is difficult in
that the employer must absorb the costs of training new or
existing employees to perform the absent employee's job duties.
To the extent that these costs are increased by expanding the
circumstances under which employees may take leave, this bill
will necessarily impair the employer's ability to retain the
benefits provided to other employees and current staffing
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levels.
PRIOR LEGISLATION :
This bill is identical to AB 537 (Swanson) from 2007. AB 537
was vetoed by Governor Schwarzenegger, who stated the following
in his veto message:
"This bill, along with two others I am returning
without my signature, would significantly expand
California's workplace leave laws. While some
expansion of existing law may have merit, these laws
in combination are too expansive and also fail to
recognize the need for reforms to current law.
California has the strongest employment leave and
workplace protection laws in the country. While these
laws have been enacted with the best of intentions,
they have also caused much confusion for employers and
employees. Unfortunately, many California-only
standards in areas such as family leave, overtime, and
meal and rest periods have been developed haphazardly
and have resulted in needless litigation that has
created a perception that California is not friendly
to business.
Instead of expanding the confusing network of laws
that presently exist, employers and employees should
be working together to eliminate confusion and create
a system of workplace laws that protects workers,
provides reasonable leave requirements, and offers
both employers and employees flexibility to meet their
respective needs."
This bill is also very similar to the introduced version of SB
300 (Kuehl) of 2005. As introduced, SB 300 would have expanded
the coverage of family members that an employee may take leave
to care for to include seriously ill independent children,
grandparents, or siblings. SB 300 was subsequently amended to
also include various other provisions regarding the medical
certification of a serious health condition, employer and
employee notification under the CFRA, and other miscellaneous
changes. SB 300 was ultimately held in the Assembly
Appropriations Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Commission on the Status of Women
California Conference Board of the Amalgamated Transit Union
California Correctional Supervisors Association
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
California Professional Firefighters
California School Employees Association
California State Employees Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
Glendale City Employees Association
International Longshore & Warehouse Union
Organization of SMUD Employees
Professional & Technical Engineers, Local 21
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employee Association
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers Union, Western State Council
United Nurses Association of California/Union of Health Care
Professionals
United Transportation Union
Opposition
California Grocers Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091