BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: June 23, 2010 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: AB 2397
Author: Solorio
Version: As Introduced February 19, 2010
SUBJECT
Workers' compensation: public employees: leaves of absence.
KEY ISSUE
Should the Legislature permit an injured peace officer to form
an agreement with his or her employer to extend his or her paid
leave of absence due to temporary disability by up to an
additional year?
PURPOSE
To allow an injured peace officer to come to a mutual agreement
with his or her employer to extend a paid leave of absence due
to temporary disability by up to an additional year.
ANALYSIS
Existing law :
Establishes a workers' compensation system that provides
benefits to an employee injured at work, irrespective of
fault. This system requires all employers to secure
payment of benefits by either securing the consent of the
Department of Industrial Relations to self insure or by
securing insurance against liability from an insurance
company duly authorized by the state.
These benefits include temporary disability payments,
which are designed to be wage replacement payments for the
period the injured employee is temporarily unable to work
due to the on-the-job injury. Temporary disability
benefits are intended to replace two-thirds of the
employee's regular wages, subject to a maximum cap. The
cap is currently $728 per week.
Provides that certain public employees employed on a
regular, full-time basis regardless of their period of
service, who incur on the job injury or illness, are
entitled to receive disability payment for up to one year
or earlier if the employee retired on permanent disability,
and is actually receiving disability pension payment. This
leave of absence is set forth in Labor Code Section 4850.
Provides that when a disability of a peace officer
continues for a period beyond one year, the officer must be
subject to the provisions of workers' compensation law
other than Section 4850 during the remainder of the period
of the peace officer's disability or until the effective
date of his retirement under the Public Employees'
Retirement Act. Under these circumstances, the leave of
absence must continue.
This bill would authorize a public agency and a peace officer to
mutually agree to extend a leave of absence with full pay
applicable to the public safety officer injured on the job
beyond the one year period authorized by law for up to one
additional year.
COMMENTS
1. Need for this bill?
Under current law, a peace officer that needs additional time
away from work beyond the year of paid leave provided under
Labor Code 4850 must look to other remedies within the
workers' compensation system, or be covered by a "salary
continuation plan" (see below). As such, even if the
employing public agency and injured peace officer could agree
Hearing Date: June 23, 2010 AB 2397
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
to additional time off, that time would not be covered under
Labor Code 4850 , requiring the peace officer to either
retire or go on temporary disability, if a salary continuation
plan is unavailable. This bill would allow both the employing
public agency and the injured public safety officer to come to
a mutual agreement for additional paid time off for up to one
year.
2. Salary Continuation Plans:
Under existing law, the requirement to pay temporary
disability benefits may be satisfied by a salary continuation
plan. A salary continuation plan, a plan that is paid by the
employer pursuant to statute, collective bargaining agreement,
memorandum of understanding, or established employer policy,
and that provides salary on the employee's regular payday that
is not less than the salary to which the employee is otherwise
entitled, and not less than the temporary disability benefits
would be.
Several opponents of this bill have argued that employers of
public safety officers are authorized to establish salary
continuation plans to accomplish the same purposes of the
bill, and that the bill is therefore not necessary. The
sponsors believe that this very few agencies have actually
adopted a salary continuation plan, and the result is that
this potential extension is available to few public safety
officers. The sponsor also notes that employing agencies in
some cases have specifically responded to injured public
safety officers that the law precludes agreeing to an
extension.
3. Proponent Arguments :
Supporters argue that AB 2397 is a simple measure that
provides flexibility for both employers and employees, and
addresses the fact that few agencies or employees think about
this issue until circumstances present an employee not quite
ready to return to work. Supporters also note that in AB 2397
this agreement is optional, and will ensure that a peace
officer who wishes to return to work but is not immediately
Hearing Date: June 23, 2010 AB 2397
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
healthy enough to do so after a year will be able to negotiate
an agreement for additional time for treatment.
4. Opponent Arguments :
Opponents argue that a negotiated rule or plan is preferable
to AB 2397 because an employer is placed in the untenable
position of risking the appearance of favoritism if it is
required to respond to individual requests, and that the bill
is less favorable to the employee than the current law because
the salary continuation plan law does not have a one-year cap.
Opponents also note that regular 4850 time, plus AB 2397
time, plus the two years of regular TD that public safety
officers are entitled to means that an officer can be paid for
four years after an injury without returning to work, at
substantial cost to the local government employer.
5. Prior Legislation :
AB 1227 (Feuer), Statutes 2009, Chapter 389, removed the
requirement that safety officers can only be eligible for 4850
leave time if they belong to a public retirement system, and
instead only requires that the safety officers be employed on
a regular, full-time basis.
SUPPORT
Peace Officers Research Association of California - Co-Sponsor
California Applicants' Attorneys Association
California Nurses Association/National Nurses Organizing
Committee
Consumer Attorneys of California
OPPOSITION
California Association of Joint Powers Authorities
* * *
Hearing Date: June 23, 2010 AB 2397
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations