BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 27, 2012 2011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 2039
Author: Swanson
As Introduced/Amended: February 23, 2012
SUBJECT
Family and medical leave
KEY ISSUE
Should employees be allowed to take unpaid leave to care for an
adult child, sibling, grandparent, grandchild, parent-in-law or
domestic partner with a serious health condition?
PURPOSE
To extend family care and medical leave rights for employees to
care for certain persons not currently allowed.
ANALYSIS
Under the existing California Family Rights Act (CFRA), also
known as the Moore-Brown-Roberti Family Rights Act, employers
with 50 or more employees are required to provide covered
employees, upon request, with up to 12 weeks of job protected
unpaid leave during any 12-month period for family care and
medical leave for the following reasons:
� Bond with a child who was born to, adopted, or placed
for foster care with, the employee.
� Care for the employee's parent, spouse, or child who has
a serious health condition.
� Because the employee's own serious health condition
renders him or her unable to perform the functions of the
job. (except for leave taken for pregnancy, childbirth, or
related medical conditions which are covered by other types
of leave)
Existing CFRA additionally provides that, among other things :
1) To be eligible for CFRA leave, an employee must have
more than 12 months of service with the employer, and at
least 1,250 hours of service, during the previous 12
months.
2) The leave is not deemed granted unless the employer
provides the employee with a guarantee of employment in the
same or a comparable position upon their return.
3) "Employer" is defined as a person who directly employs
50 or more persons to perform services for a wage or salary
or the state, any political subdivision of the state and
cities.
4) "Child" is defined as a biological, adopted, foster, or
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.
5) "Parent" is defined as the employee's biological,
foster, or adoptive parent, stepparent, legal guardian, or
other person who stood in loco parentis to the employee
when the employee was a child.
6) "Serious health condition" is defined 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) The employee provide the employer with reasonable
advance notice of the need for the leave, if foreseeable,
and authorizes the employer to require certification by a
health care provider for leave requests due to a serious
health condition.
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
This Bill would amend the California Family Rights Act (CFRA) to
expand the definition of family members for which the employee
could take leave to care for. Specifically, this bill:
1) Amends the definition of "child" to eliminate reference
to the age and dependent status of the child (thereby
authorizing leave to care for an adult 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.
4) Provides definitions for "domestic partner,"
"parent-in-law," and "sibling."
COMMENTS
1. Background on CFRA and FMLA:
Current law provides employees with options for paid and
unpaid leave through programs such as California Family Rights
Act (CFRA) and the federal Family Leave Act (FMLA). In
general, FMLA and CFRA contain similar provisions and run
concurrently for all purposes other than disabilities due to
pregnancy or pregnancy-related conditions.
The CFRA was enacted in 1991 and amended in 1993 to bring the
statue into conformity with the Family and Medical Leave Act
(FMLA). Both statutes entitle eligible employees working for
a covered employer to take unpaid, job-protected leave for up
to 12 weeks. Under FMLA, eligible employees can take twelve
workweeks of leave in a 12-month period for:
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
1) The birth of a child and to care for the newborn
child within one year of birth;
2) The placement with the employee of a child for
adoption or foster care and to care for the newly placed
child within one year of placement;
3) To care for the employee's spouse, child, or parent
who has a serious health condition;
4) A serious health condition that makes the employee
unable to perform the essential functions of this or her
job;
5) Any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a
covered military member on "covered active duty," or
Additionally, under FMLA, an employee can take twenty-six
workweeks of leave during a
single 12 month period to care for a covered servicemember
with a serious injury or illness if
the eligible employee is the servicemember's spouse, son,
daughter, parent, or next of kin.
2. Need for this bill?
Current law authorizes employees to take leave to care for
his/her self or a parent, spouse, or child with a serious
medical condition. However, employees cannot take leave to
attend to an ill sibling, grandparent, grandchild,
parent-in-law, adult child, or domestic partner. In February
of 2007, the Senate Office of Research published a study
entitled "Balancing Work and Family". The study reported
that, for the period of July 1, 2004 to June 30, 2006, 10% of
all rejected claims were for family members not covered under
Paid Family Leave. Most of the denied claims were for
siblings (35%, or 191 people), grandparents (19%, or 104
people), and in-laws (10%, or 52 people). This report only
studied claims filed under the Paid Family Leave program;
however, it offers a view of the types of claims filed by
employees based on their needs. Additionally, 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.
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
Although unpaid, CFRA offers employees the opportunity to care
for their loved ones knowing that their job will be waiting
upon their return. This bill would extend family and medical
leave rights to employees wishing to care for an adult child,
sibling, grandparent, grandchild, parent-in-law, or domestic
partner. The author believes that this bill will strengthen
the crucial protections for working families contained in the
CFRA.
3. Other State Family Leave Laws:
There are several states that have more expansive definitions
of family in their family leave laws. For example,
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)). 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), among others.
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 and anyone with whom an employee lives and has a
committed relationship (DC Code Ann. �501-517). 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).
4. Proponent Arguments :
According to the author and proponents, CFRA guarantees
workers the critical right to take time off from work to care
for their own or a family member's serious health condition.
Unfortunately, they argue, because of an overly narrow
definition of family, CFRA excludes many family members from
the ability to provide care for their loved ones. Proponents
argue that CFRA fails to account for the diversity of
California households and the importance of caregiving by
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
extending family members. Proponents point to a recent study
of caregivers of Alzheimer's patients which found that over 40
percent of caregivers were not covered under the narrow
definition of family in CFRA.
Proponents argue that California has the second highest
percentage of multi-generational households in the country.
Additionally, almost half of Californians are single and their
closest relative may be a sibling. They argue that when
serious illness strikes, many Californians turn to their
family for much-needed care and support. Proponents support
this measure because it recognizes the importance of family
caregiving and helps workers caring for family members balance
the demands of work and family.
According to proponents, family leave has proven to be an
important and cost effective means by which employees can take
care of ill relatives and they argue that the concerns raised
by opponents when unpaid family leave was first introduces
have turned out to be groundless. They believe the expansions
proposed with this bill will have a minimal impact on
employers. Proponents note that eight states and the District
of Columbia use a more expansive definition of "family member"
for whose illness an employee may take a family medical leave.
They believe that the legislative changes proposed with this
bill will make California a leader in the creation of
family-friendly workplaces.
5. Opponent Arguments :
Opponents argue that this bill would overburden California
employers by significantly expanding the type of individuals
or circumstances under which employees can take protected
leave of absence under CFRA. According to opponents, due to
additional leave requirements this bill would provide to both
state and private sector employees, it would create additional
cost pressures to a still struggling budget deficit and
employers.
Opponents argue that after meeting minimum qualifications, an
employee's leave under CFRA is absolute and must be allowed,
regardless of the undue burden it will create on the employer.
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
They argue that employers could have multiple employees
already out of work on a variety of protected leaves afforded
under California law (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 as well. Opponents argue
that once out on leave, the employer must hire and train a
temporary employee to cover the employees' 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.
According to opponents, given the fact that the proposed
individuals under the bill are not covered by FMLA, an
employee could utilize his/her 12 weeks of CFRA to care for
the serious medical condition of a parent-in-law, and then
take another 12 week leave under FMLA to care for the medical
condition for his/her spouse, child, or parent. Opponents
argue that this significant expansion of leave for employees
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. They argue that California simply
cannot afford to impede growth and overburden employers with
such a requirement.
6. Prior Legislation :
AB 59 (Swanson) of 2011 and AB 849 (Swanson) of 2009, both
were identical to this bill and both died in Assembly
Appropriations Committee suspense file.
AB 537 (Swanson) of 2007: Vetoed by the Governor
AB 537 was also identical but was the bill where the current
language was crafted through various versions. The bill was
vetoed by Governor Arnold Schwarzenegger who stated that these
types of laws have caused much confusion for employers and
employees which has resulted in needless litigation and a
perception that California is not friendly to business.
SB 300 (Kuehl) of 2005: Held in Assembly Appropriations
Committee
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations
SB 300 was similar to this bill; however, SB 300 included
various other provisions regarding the medical certification
of a serious health condition, employer and employee
notifications under the CFRA, and other miscellaneous changes.
SB 300 was ultimately held in the Assembly Appropriations
Committee.
SUPPORT
Legal Aid Society - Employment Law Center (Sponsor)
Alzheimer's Association
American Civil Liberties Union
American Federation of State, County and Municipal Employees,
AFL-CIO
Asian Communities for Reproductive Justice
California Alliance for Retired Americans
California Black Health Network
California Commission on Aging
California Conference Board-Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Labor Federation
California Nurses Association/National Nurses Organizing
Committee
California Rural Legal Assistance Foundation
California School Employees Association
California Teachers Association
California Teamsters Public Affairs Council
California Women's Law Center
Central Valley Susan G. Komen for the Cure
Communication Workers of America, Local 9003
Communications Workers of America, Local 9588
Disability Rights Education & Defense Fund
Disability Rights Legal Center
Engineers and Scientists of California, IFPTE Local 21
Equal Rights Advocates
Family Caregiver Alliance
Glendale City Employees Association
Health Access California
Inland Empire Susan G. Komen for the Cure
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations
International Longshore and Warehouse Union
Labor Project for Working Families
Laborers', Locals 777 & 792
Legal Aid Society-Employment Law Center
Los Angeles Alliance for a New Economy (LAANE)
Los Angeles Caregiver Resource Center
Los Angeles County Susan G. Komen for the Cure
National Association of Social Workers, California Chapter
National Association of Working Women
National Council of La Raza
National Nurses Organizing Committee
Orange County Susan G. Komen for the Cure
Organization of SMUD Employees
Parent Voices
Professional and Technical Engineers, IFPTE Local 21
Restaurant Opportunities Center of Los Angeles
Sacramento Valley Susan G. Komen for the Cure
San Bernardino Public Employees Association
San Diego Susan G. Komen for the Cure
San Francisco Susan G. Komen for the Cure
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
UNITE HERE
United Food and Commercial Workers Western States Council
Utility Workers Union Local 132
9 to 5 California, National Association of Working Women
OPPOSITION
Associated Builders and Contractors of California
Associated General Contractors
Association of California Water Agencies
California Association of Bed & Breakfast Inns
California Association of Health Facilities
California Bankers Association
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
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 9
Senate Committee on Labor and Industrial Relations
California Independent Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Restaurant Association
California Retailers Association
City of Palm Desert
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
National Federation of Independent Business
Orange County Business Council
Simi Valley Chamber of Commerce
Southwest Riverside County Legislative Council
Hearing Date: June 27, 2012 AB 2039
Consultant: Alma Perez Page 10
Senate Committee on Labor and Industrial Relations