BILL ANALYSIS �
AB 2039
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Date of Hearing: March 28, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2039 (Swanson) - As Introduced: February 23, 2012
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 health 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 the author, the need for job-protected
family care and medical leave is critical to workers' physical
and emotional well-being, as workers who do not have job
protection are presented with the untenable choice of caring for
their family members or losing their job. The author notes that
one of the shortcomings of CFRA is that the current definition
of "family member" does not adequately reflect the reality of
California's families in which siblings care for one another,
grandchildren care for grandparents and parent care for adult
children.
A report by Eileen Appelbaum and Ruth Milkman, titled "Leaves
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that Pay", (LTP Report), does not specifically study unpaid
leave, but addresses the general importance of workers having
job-protected leave. According to the 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.
The 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
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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".
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
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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;
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 Legal Aid Society Employment Law
Center (LAS-ELC) writes that the current CFRA has an overly
narrow definition of family and therefore excludes many family
members from the ability to provide care for their loved ones.
LAS-ELC states that the restrictions on family caregiving in
CFRA fail to account for the diversity of California households
and the importance of caregiving by extended family members. In
a letter of support, Health Access of California (HAC) writes
that the California Work and Family Coalition estimates that
over 40% of all workers in California cannot take time off when
they or someone in their family is ill, negatively impacting
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family and community health. HAC writes that it is important to
protect workers' ability to maintain family stability in times
of economic instability, in whatever iteration of family is most
appropriate. They state that this bill would make it possible
for all California families to be protected with family and
medical leave so that illness does not necessitate unemployment
and financial insecurity.
ARGUMENTS IN OPPOSITION :
In a letter of opposition, the California Chamber of Commerce
and a coalition of California business groups, including the
California Retailers Association and the California Farm Bureau
Federation, write that CFRA is already costly to employers. They
state that expanding the types of individuals or circumstances
under which an employee can take a leave of absence under CFRA
would only further increase the cost of doing business for
employers in California. Opponents write that the significant
expansion proposed by this bill would create such a substantial
burden on employers that it would discourage employers from
growing to more than 50 employees in order to avoid triggering
CFRA/FMLA or from locating to this state.
Writing in opposition, the Southwest California Legislative
Council (SWCLC) states that this bill would overburden
California employers and create further disconnect with the
federal Family and Medical Leave Act. SWCLC writes CFRA is
already costly to employers and expanding the law would only
further increase the cost of doing business in California.
REGISTERED SUPPORT / OPPOSITION :
Support
9to5 California, National Association of Working Women
Alzheimer's Association
American Federation of State, County and Municipal Employees
Asian Communities for Reproductive Justice
California Alliance of Retired Americans
California Conference Board-Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
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California Rural Legal Assistance Foundation
California School Employees Association
California Teamsters Public Affairs Council
California Women's Law Center
Communications Workers of America
Communications Workers of America, Local 9003
Disability Rights Education and Defense Fund
Equal Rights Advocates
Engineers and Scientists of California, IFPTE Local 20
Family Caregiver Alliance
Health Access California
International Longshore and Warehouse Union
LAANE
Labor Project for Working Families
Los Angeles Caregiver Resource Center
National Association of Social Workers, California Chapter
National Council of La Raza
Professional and Technical Engineers, IFPTE Local 21
Restaurant Opportunities Center of Los Angeles
The Legal Aid Society - Employment Law Center
Unite-HERE
United Food & Commercial Workers Western States Council
Utility Workers Union Local 132
Opposition
Associated General Contractors
California Association of Bed & Breakfast Inns
California Association of Health Facilities
California Chamber of Commerce
California Chapter of American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Hotel and Lodging Association
California Independent Grocers 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
Orange County Business Council
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Southwest California Legislative Council
Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091