BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 299 (Evans)
As Introduced
Hearing Date: April 5, 2011
Fiscal: Yes
Urgency: No
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SUBJECT
Employment: Pregnancy or Childbirth Leave
DESCRIPTION
This bill would prohibit employers from refusing to maintain and
pay for insurance coverage, as specified, for the duration of
maternity leave up to four months, as specified. This bill
would authorize employers to recover insurance premiums from the
employee if the employee fails to return from maternity leave
provided that the employee's failure to return from maternity
leave is not due to leave taken under the Moore-Brown-Roberti
Family Rights Act, for a health condition that entitles the
employee leave, or for another circumstance beyond the control
of the employee.
BACKGROUND
In 1980, California enacted protections for employees taking
pregnancy disability leave. In 1993, the federal Family and
Medical Leave Act (FMLA) was enacted to provide job and benefits
protections to employees taking medical, maternity, or other
family-related leaves of absence. Prior to the passage of the
FMLA, family or medical leave was left to the discretion of
individual employers. Employees making a request for family and
medical leave could be denied for any reason and subsequently
fired for taking such leave. AB 1460 (Moore, Ch. 827, Stats.
1993) was enacted to conform California's employment
discrimination laws under the Fair Employment and Housing Act to
the new requirements under the FMLA.
This bill would prohibit an employer from refusing to maintain
(more)
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group insurance coverage, as specified, for employees taking a
leave of absence due to pregnancy, child birth, or a related
condition. This bill would authorize employers to recover
insurance premiums paid for an employee on pregnancy disability
leave if the employee fails to return from pregnancy disability
leave, as specified.
CHANGES TO EXISTING LAW
Existing law , the federal Pregnancy Discrimination Act,
generally prohibits discrimination in employment on the basis of
pregnancy, childbirth, or related medical conditions. (P.L.
95-555.)
Existing law , the Fair Employment and Housing Act, generally
prohibits discrimination in employment on the basis of
pregnancy, childbirth, or related medical conditions. (Gov.
Code Sec. 12940.)
Existing law , the federal Family and Medical Leave Act (FMLA),
prohibits employers with at least 50 employees from failing to
maintain and pay for group health plan coverage, as specified,
for leave taken by the employee for the birth of a child for a
period of up to 12 workweeks. An employer may recover the group
health plan premium from the employee in the event the employee
fails to return from leave, as specified, and the failure to
return from leave is not a result of a pregnancy or child birth
related condition or other circumstances beyond the control of
the employee. (29 U.S.C. Sec. 2614(c).)
Existing law , the Moore-Brown-Roberti Family Rights Act (the
California Family Rights Act (CFRA)) prohibits employers with at
least 50 employees from failing to maintain and pay for group
health plan coverage, as specified, for leave taken by the
employee for the birth of a child for a period of up to 12
workweeks. An employer may recover the group health plan
premium from the employee in the event the employee fails to
return from leave, as specified, and the failure to return from
leave is not a result of a pregnancy or child birth related
condition or other circumstances beyond the control of the
employee. (Gov. Code Sec. 12945.2(f).)
Existing law generally prohibits employers with at least five
employees from refusing to allow female employees to take a
leave of absence due to a pregnancy, childbirth, or related
medical condition (pregnancy disability leave) not to exceed
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four months. (Gov. Code Sec. 12945.)
This bill would conform pregnancy disability leave to the
employee benefit protections provided under FMLA and CFRA.
Specifically, this bill would provide that an employer is
prohibited from refusing to maintain and pay for coverage under
a group health plan, as specified, for a woman taking pregnancy
disability leave.
This bill also would provide the ability for an employer to
recover premiums paid subject to this bill in the event the
employee fails to return from pregnancy disability leave, as
specified, and the failure to return from pregnancy disability
leave is not due to the employee taking leave pursuant to CFRA
or as a result of a health condition related to pregnancy or
childbirth.
COMMENT
1. Stated need for the bill
The author writes:
Other federal and state leave laws require employers to
continue health care for employees on leave. Individuals
covered under the federal Family and Medical Leave Act (FMLA)
have a right to the continuation of group health insurance
coverage. However, the FMLA has strict eligibility
requirements and only 47% of the workforce is included. Those
covered under the state's California Family Rights Act (CFRA)
are also guaranteed the continuation of benefits during leave,
but the CFRA excludes leave for pregnancy-related conditions.
Due to these gaps in coverage, an estimated 50% of the
workforce is not afforded the continued health insurance
coverage guaranteed by the FMLA and CFRA. These gaps in
coverage leave a large segment of the state's workforce
vulnerable to the limited provisions under California's
Pregnancy Disability Leave law. . . .
SB 299 seeks to close the gap in health insurance for women on
maternity leave. This bill amends the Pregnancy Disability
Leave law to guarantee the continuation of employer-provided
health insurance coverage for women on pregnancy disability
leave. This amendment will bring �pregnancy disability leave]
in line with health coverage provisions of related state and
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federal family and medical leave laws.
Equal Rights Advocates, a sponsor of the bill, writes:
The �pregnancy disability leave] guarantees women the right to
job-protected leave before and/or after birth to recover from
pregnancy for up to a total of four months. Unfortunately,
the �pregnancy disability leave] does not require employers to
continue health insurance coverage for women while on
pregnancy leave. Other state and federal leave laws do
require health insurance coverage to be continued during
leave. However, these laws either do not apply to pregnancy
conditions or have strict eligibility rules that exclude over
half of the workforce from protection. This current gap in
the law puts the health and well-being of women and their
infants at risk. Women should not have to choose between
taking a medically necessary pregnancy leave and continuing
health care coverage for themselves and their families.
2. Extending employer-paid health insurance coverage prior to
childbirth
This bill would require employers to maintain group health
insurance for women on a leave of absence due to pregnancy,
child birth, or a related medical condition. Existing federal
and state law, the FMLA and CFRA, respectively, require group
health insurance to be maintained by an employer for an employee
on a leave of absence due to childbirth or a related medical
condition. The author contends that, although an employee can
take unpaid leave for a pregnancy-related condition, existing
law does not require employers to continue group health
insurance coverage during pregnancy disability leave. The
American Civil Liberties Union, a supporter of this bill, points
out that existing law fails to provide adequate insurance
coverage for pregnant employees; "�t]he practice of eliminating
health care insurance coverage for women on pregnancy disability
leave discriminates against women by leaving them without health
insurance under circumstances men do not face."
Further, the author asserts that "�t]his lack of coverage
assurance under pregnancy disability leave discourages and
prevents women from taking pregnancy leave despite their health
needs and the needs of their baby. Forced to pay out-of-pocket
costs for health coverage, many women will delay or cut short
their leave despite well-documented benefits to maternal and
child health. Almost four-fifths of workers report being unable
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to take leave because they could not afford it." The California
Commission on the Status of Women, a sponsor of this bill,
states that "�t]hree quarters of women entering today's
workforce will become pregnant at least once while employed.
Those who become pregnant while working usually return to the
workforce. Continuation of health insurance coverage during
pregnancy leave is essential to protecting the health and
economic security of women." This bill would provide the same
group health insurance coverage required under FMLA and CFRA,
but extend the required coverage to include leaves of absence
taken due to pregnancy-related conditions.
Although the FMLA and CFRA only apply to employers with 50 or
more employees, discrimination protections under pregnancy
disability leave apply to employers with at least five
employees. Consequently, this bill would require additional
employers to not only provide group health care insurance for
pregnancy-related conditions, but would expand existing coverage
for childbirth and other related conditions. Staff notes that
had the employee not been on childbirth disability leave, the
employer would have had to continue health care coverage for the
employee. Requiring continued maintenance of insurance coverage
while the employee is temporarily away from work on pregnancy
disability leave does not equal an increase in money spent on
the employee but rather a continuance of existing coverage.
Further, in the event the employee fails to return to work after
the expiration of the pregnancy disability leave, as specified,
the employer would be protected from a potential loss of income
spent maintaining the employee's insurance. This bill would
provide an employer the ability to recover insurance premiums
paid from the employee who fails to return to work after the
expiration of pregnancy disability leave, as specified. Staff
notes that this reimbursement provision is identical to the
reimbursement provisions under the FMLA and CFRA. (See 29
U.S.C. Sec. 2614(c) and Gov. Code Sec. 12945.2(f).)
Support : 9to5 California, National Association of Working
Women; American Civil Liberties Union; California Alliance for
Retired Americans; California Employment Lawyers Association;
California Family Health Council; California Labor Federation,
ALF-CIO; California Medical Association; California National
Organization for Women; California Nurse-Midwives Association;
California Nurses Association; California Partnership to End
Domestic Violence; California Primary Care Association;
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California State Employees Association; California Women's Law
Center; ILWU Warehouse, Processing & Distribution Workers'
Union, Local 26; Jericho: A Voice for Justice; Labor Project for
Working Families; Legal Aid Society - Employment Law Center; Los
Angeles Alliance for a New Economy; Service Employees
International Union Local 1000 Women's Committee; Restaurant
Opportunities Center of Los Angeles; St. John's Well Child &
Family Center; United Food & Commercial Workers Union, Local 5;
United Steelworkers, Local 675; Western Center on Law and
Poverty; Women's Employment Rights Clinic of Golden Gate
University; two individuals
Opposition : None Known
HISTORY
Source : California Commission on the Status of Women and Equal
Rights Advocates
Related Pending Legislation : AB 592 (Lara, 2011) would prohibit
employers from interfering with or restraining an employee's
exercise of pregnancy disability leave or rights under CFML.
Prior Legislation : See Background.
Prior Vote : Committee on Labor and Industrial Relations (Ayes
5, Noes 2)
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