BILL ANALYSIS �
AB 59
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Date of Hearing: March 30, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 59 (Swanson) - As Introduced: December 7, 2010
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 reference 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 condition.
EXISTING LAW :
1)Establishes the CFRA, also known as the Moore-Brown-Roberti
Family Rights Act.
2)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.
3)Defines "child" as a biological, adopted or foster child, a
stepchild, a legal ward, or a child of a person standing in
local parentis, who is either under the age of 18 or is an
adult independent child.
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4)Defines an "employer" as either any person who directly
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.
5)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.
6)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.
7)Requires an employee to provide the employer with reasonable
advance notice of the need for the leave, if foreseeable.
8)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.
9)Establishes a process by 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 :
According to a report by Eileen Appelbaum and Ruth Milkman
titled "Leaves that Pay", (LTP Report) the demand for time off
from work to address family needs has grown rapidly as family
and work patterns have shifted over recent decades. The LTP
Report notes that the only major U.S. legislation to address
these issues is the 1993 Family and Medical Leave Act (FMLA),
which guarantees up to 12 weeks of job protected leave.
However, FMLA's coverage is limited to only about half of all
workers. According to the National Center for Children in
Poverty, the prospect of lost wages often discourages low-wage
workers from taking time off to care for a sick family member.
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FMLA covers all public-sector workers and private sector workers
who work for employers with 50 or more employees on the payroll
or within 75 miles of the worksite. In addition, employees must
work for at least 12 months and worked 1,250 hours or more for
the same employer in the year preceding the leave.
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.
This law guarantees California workers up to six weeks of paid
family leave at 55% 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
Existing state law defines a "child" as a biological, adopted or
foster child, as 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 the 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".
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However, AB 205 (Goldberg), Chapter 421, Statues 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 are granted and
imposed on spouses."
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.
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 regulation specifies 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 and the District of Colombia have more expansive
definitions of family in their family medical leave laws than
California's current definition. Connecticut, Alaska, Oregon,
Rhode Island, and Wisconsin all have family leave laws that
include a spouse's parent (CT Gen. Stat. 31-5lkk (7); AL
39.20550 (f); OR Rev. State. 659.A.150; RI Gen. Laws 28-48-1;
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Wis. Stat. Ann. 103.10 (1) (f). New Jersey's family leave law
includes a spouse's parent and step-parent. The District of
Columbia allows a leave to care for any person whom the employee
is related by blood, legal custody or marriage (DC Code Ann.
32-501) while 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).
Washington allows workers who have a sick leave to use it to
care for a child, spouse, parent, parent in-law, or a
grandparent with a serious health condition or emergency
condition (WA Rev. Code 49.12.270). Mississippi grants state
employees the right to take leave to care for immediate family,
including siblings, grandchildren, grandparents and in-laws
(Miss. Code Ann. 25-395 (2)-(3)).
ARGUMENTS IN SUPPORT :
In support of this bill, the California Employment Lawyers
Association (CELA) writes that CFRA has an overly narrow
definition of family and excludes many family members from the
ability to provide care for their loved ones. CELA notes that
the restriction on family caregiving in CFRA fail to account for
the diversity of California households and the importance of
caregiving by extended family members. In addition, CELA writes
that California has the second highest percentage of
multi-generational households in the country. The California
Nurses Association asserts that this bill will ensure that the
law more adequately reflects the realities of California
families.
Writing in support, the California School Employees Association
notes that this bill recognizes the needs of domestic partners
to take family medical leave to care for their significant other
and to deny them family medical leave is an injustice that must
be corrected. In their letter of support, the California
Women's Law Center (CWLC) writes that, according to the
Department of Labor, about 60% of women are active members of
the workforce, accounting for about 47% of the total workforce
and approximately 75% of caregivers nationwide. CWLC assert
that a significant number of working women, especially women
with low-wage jobs, frequently have to choose between being paid
or caring for a sick loved one. CWLC notes that broadening the
definition of "family" will ensure women don't have to struggle
to remain in the workforce and care for ill relatives.
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ARGUMENTS IN OPPOSITION :
In opposition, the California Chamber of Commerce (CalChamber)
writes that AB 59 disrupts the balance between an individual's
work life and personal life, and negatively impacts California
employers. CalChamber notes that the CFRA is already costly to
employers. They write that employers could have multiple
employees already out of work on a variety of protected leaves
afforded under California law, including workers' compensation
leave, pregnancy disability leave, bone marrow leave, and still
must allow any other employee who meets the qualifications of
CFRA to have a protected 12 week leave of absence. CalChamber
asserts that employers must hire and train a temporary employee
to cover the duties, pay an existing employee a higher wage or
overtime to take on the duties or suffer decreased productivity
until the existing employee out on leave is ready to return to
work. CalChamber writes that this bill will further increase
the cost of doing business for employers, discourage California
employers from growing to more than 50 employees and/or locating
to this state.
REGISTERED SUPPORT/ OPPOSITION :
Support
9to5 National Association of Working Women
Advancement Project
California Alliance for Retired Americans
CA Conference of Machinists
California Commission on the Status of Women
California Correctional Peace Officers Association
California Employment Lawyers Association
CA Conference Board of the Amalgamated Transit Union
California Labor Federation, AFL-CIO
California Nurses Association
California School Employees Association
California Teamsters Public Affairs Council
California Women's Law Center
Equal Right Advocates
Engineers and Scientists of California
Health Access California
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International Longshore and Warehouse Union
Labor Project for Working Families
Professional and Technical Engineers, Local 21
SCOPE, Laborers International Union of North America
Service Employees International Union, Local 1000
St. John's Well Child & Family Center
The Legal Aid Society-Employment Law Center
UNITE HERE!
United Food and Commercial Workers - Western States Conference
United Food and Commercial Workers Union, Local 5
United Steelworkers Local 675
Utility Workers Union of America, Local 132
Opposition
California Association of Bed, Breakfast and Innkeepers
California Automotive Wholesalers' Association
California Association of Joint Powers Authorities
California Beer and Beverage Distributors
California Chamber of Commerce
California Chapter of the American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Hospital Association
California Hotel & Lodging Association
California Independent Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers & Technology Association
California Restaurant Association
California Retailers Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders' Association
National Federation of Independent Business
Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091