Text of CA SB 300 (2005)

skip to content home accessibility FAQ feedback sitemap login x Quick Search: Bill Number Bill Keyword Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites Bill Information >> Bill Search >> Text Bill Text PDF2 Add To My Favorites | Version: 07/07/05 - Amended Assembly 05/27/05 - Amended Senate 04/19/05 - Amended Senate 02/16/05 - Introduced SB-300 Family and medical leave.(2005-2006) Text >> Votes >> History >> Bill Analysis >> Today's Law As Amended >> Compare Versions >> Status >> Comments To Author >> Add To My Favorites >> SHARE THIS: Bill Start Amended IN Assembly July 07, 2005 Amended IN Senate May 27, 2005 Amended IN Senate April 19, 2005 CALIFORNIA LEGISLATURE— 2005–2006 REGULAR SESSION Senate Bill No. 300 Introduced by Senator Kuehl February 16, 2005 An act to amend Section 12945.2 of the Government Code, relating to family and medical leave. LEGISLATIVE COUNSEL'S DIGEST SB 300, as amended, Kuehl. Family and medical leave. Existing law, the Moore-Brown-Roberti Family Rights Act, makes it an unlawful employment practice for an employer, as defined, to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. Under the act, “child” means a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18 or an adult dependent child. The act defines “parent” to mean the employee’s biological, foster, adoptive, or stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. This bill would increase the circumstances under which an employee is entitled to protected leave pursuant to the Family Rights Act by (1) eliminating the age and dependency elements from the definition of “child,” thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition, and (2) permitting an employee to take leave to care for a seriously ill grandparent, sibling, or domestic partner, as defined. This bill would also provide that an employer violates the act if it fails to grant, or otherwise interferes with an employee’s right to take, family care and medical leave for an employee entitled to leave who properly requests the leave. The bill would substitute the term “family member” for parent, grandparent, sibling, child, domestic partner, or spouse, for purposes of authorizing an employee to take leave to care for a family member with a serious health condition. This bill would additionally provide that care for, as used in the act, includes both physical and psychological care, as specified, and that an employee may, but need not, be involved or participating in providing the direct medical care of the family member. The bill would require that an employer that knows or has reason to know that an employee may need family care and medical leave provide the employee with specified information regarding the right to family care and medical leave within 2 business days of the date the employer learns of the need for leave. The bill would authorize an employee who is deprived of his or her right to family care and medical leave as a result of the employer’s failure to provide the employee with that information to bring a claim for a violation of the act. The bill would also require the Fair Employment and Housing Commission to develop a form that includes the information that the employer must provide to employees, and require that the department make the form available to employers. Under existing law, the act authorizes an employer to require that an employee’s request for leave to care for a child, spouse, or parent with a serious health condition, or for the employee’s own serious health condition, be supported by a certification by a health care provider. This bill would prohibit the employer from, as a condition of granting leave, requiring the employee to disclose the underlying diagnosis or course of treatment of the employee or the employee’s family member. The bill would also provide that the employee need not disclose his or her diagnosis or course of treatment, or the diagnosis or course of treatment of a family member, as a condition for receiving leave. Existing law prohibits the act and any amendments to the act from being construed to require any changes in existing collective bargaining agreements during the life of the contract or until specified dates, whichever occurs first. This bill would delete those provisions. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO Bill Text The people of the State of California do enact as follows: SECTION 1. Section 12945.2 of the Government Code is amended to read: (a) (1) Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (5) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. 12945.2. (2) An employer shall be deemed to be in violation of this section if it fails to grant job-protected family care and medical leave to an employee who is entitled to leave under this section and who makes a request for time off as described in paragraph (3) of subdivision (j), or if it otherwise interferes with an employee’s right to leave under this section. (3) To comply with this section, the employer shall, upon granting the leave, provide to the employee a guarantee of employment in the same or a comparable position upon the termination of the leave. (b) Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed. (c) For purposes of this section: (1) “Care for” shall encompass both physical and psychological care, and an employee providing care may, but need not, be involved or participating in providing the direct medical care of a family member who has a serious health condition. “Care for” shall include the following: (A) Providing assistance with medication or other medical treatments. (B) Providing assistance with hygienic, nutritional, or safety needs. (C) Providing transportation to medical appointments. (D) Providing psychological comfort and reassurance. (E) Filling in for others who are caring for the family member or making arrangements for third-party care. (F) Assisting with transfers required by the serious medical condition, such as relocation to a care facility or a more accessible residence. (G) Spending time with a family member at the end of the family member’s life. (2) “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. (3) “Comparable position” means a position that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status. A comparable position must include duties and responsibilities that are the same or substantially similar to those of the employee’s former position, and that entail substantially equivalent skill, effort, responsibility, and authority. (4) “Domestic partner” has the same meaning set forth in Section 297 of the Family Code. (5) “Employer” means either of the following: (A) Any person who employs, supervises, or controls 50 or more persons who perform services for a wage or salary. (B) The state, and any political or civil subdivision of the state and cities. (6) “Family care and medical leave” means any of the following: (A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee. (B) Leave to care for a family member who has a serious health condition. The fact that an employee spends time with a family member with a serious health condition shall create a rebuttable presumption that the employee is caring for the family member. (C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken pursuant to subdivision (a) of Section 12945. (7) “Family member” means parent, grandparent, sibling, child, domestic partner, or spouse. (8) “FMLA” means the federal Family and Medical Leave Act of 1993 (P.L. 103-3). (9) “Health care provider” means any of the following: (A) An individual holding either a physician’s and surgeon’s certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physician’s and surgeon’s certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition. (B) Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA. (10) “Parent” means 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. (11) “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) Inpatient care in a hospital, hospice, or residential health care facility. (B) Continuing treatment or continuing supervision by a health care provider. (d) An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e). (e) An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employee’s own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a family member with a serious health condition, unless mutually agreed to by the employer and the employee. (f) (1) During any period that an eligible employee takes leave pursuant to subdivision (a) or takes leave that qualifies as leave taken under the FMLA, the employer shall maintain and pay for coverage under a “group health plan,” as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration of the leave, not to exceed 12 workweeks in a 12-month period, commencing on the date leave taken under the FMLA commences, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a “group health plan” beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur: (A) The employee fails to return from leave after the period of leave to which the employee is entitled has expired. (B) The employee’s failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee. (2) (A) Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life, short-term, or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described in subdivision (a). In the absence of these conditions an employee shall continue to be entitled to participate in these plans and, in the case of health and welfare employee benefit plans, including life, short-term, or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. (B) For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave. (g) During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation. (h) If the employee’s need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave. (i) If the employee’s need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision. (j) (1) An employer that knows or has reason to know that an employee may need leave pursuant to this section shall, within two business days of the date the employer learns of the need for leave, provide the employee with written information about the right to family care and medical leave, including the following: (A) The right to family care and medical leave of up to 12 workweeks where the conditions of subdivision (a) are met. (B) The right to be restored to the same or equivalent job a comparable position upon return from leave. (C) Notice that the leave will be counted against the employee’s annual leave entitlement. (D) The right to intermittent leave. (E) Any requirement the employer has regarding a medical certification, as described in subdivisions (k) and (l). (F) Any requirement the employer has, consistent with subdivision (e), that the employee use accrued vacation leave, accrued sick leave, or other accrued time off or any other paid or unpaid time off during the leave allowed under subdivision (a). (G) The employee’s right, consistent with subdivision (e), to elect to use accrued vacation leave, accrued sick leave, or other accrued time off or any other paid or unpaid time off during the leave allowed under subdivision (a). (H) The employee’s right to protection from retaliation and discrimination as described in subdivision (n). (I) Information regarding the procedures for filing complaints of violations of this section with the department. (J) Information regarding the employee’s potential eligibility for paid family leave benefits through the state disability insurance program (Chapter 7 (commencing with Section 3300) of Part 2 of Division 1 of the Unemployment Insurance Code). (2) The commission shall develop a form that includes the items specified in subparagraphs (A) to (J), inclusive, of paragraph (1) and shall make this form readily available to employers covered by this section. (3) An employer shall be deemed to know that an employee may need leave pursuant to this section whenever it receives from or on behalf of an employee a request for time off from work that makes reference to either of the following as a reason for the request: (A) The birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee. (B) The medical condition of the employee, a child of the employee, or a family member, where the condition could reasonably constitute a “serious health condition” as defined in paragraph (11) of subdivision (c). (4) An employee who, as a result of the employer’s failure to comply with paragraph (1), is deprived of his or her right to family care and medical leave, may bring a claim for violation of this section. (k) An employee need not disclose his or her diagnosis or course of treatment, or the diagnosis or course of treatment of a family member, as a condition for receiving leave. (l) (1) An employer may require that an employee’s request for leave to care for a family member who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following: (A) The date on which the serious health condition commenced. (B) The probable duration of the condition. (C) An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care. (D) A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care. (2) In accordance with the right to privacy protected by Section 1 of Article I of the California Constitution, the employer shall not, as a condition of granting leave, require the employee to disclose his or her underlying diagnosis or course of treatment or the diagnosis or course of treatment of a family member, either through the medical certification process or by any other means. (3) Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required. (m) (1) An employer may require that an employee’s request for leave because of the employee’s own serious health condition be supported by a certification issued by his or her health care provider. That certification shall be sufficient if it includes all of the following: (A) The date on which the serious health condition commenced. (B) The probable duration of the condition. (C) A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position. (2) In accordance with the right to privacy protected by Section 1 of Article I of the California Constitution, the employer shall not, as a condition of granting leave, require the employee to disclose his or her underlying diagnosis or course of treatment or the diagnosis or course of treatment of a family member, either through the medical certification process or by any other means. (3) The employer may require that the employee obtain subsequent recertification regarding the employee’s serious health condition on a reasonable basis, in accordance with the procedure provided in paragraph (1), if additional leave is required. (4) (A) In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employer’s expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information certified under paragraph (1). (B) The health care provider designated or approved under subparagraph (A) shall not be employed on a regular basis by the employer. (C) In any case in which the second opinion described in subparagraph (A) differs from the opinion in the original certification, the employer may require, at the employer’s expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified under paragraph (1). (D) The opinion of the third health care provider concerning the information certified under paragraph (1) shall be considered to be final and shall be binding on the employer and the employee. (E) Where an employer fails to contest the certification provided pursuant to this section, the certification provided shall be presumed final and binding on the employer. (5) As a condition of an employee’s return from leave taken because of the employee’s own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work. Nothing in this paragraph shall supersede a valid collective bargaining agreement that governs the return to work of that employee. (n) It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate or retaliate against, any individual because of any of the following: (1) An individual’s exercise of the right to family care and medical leave provided by subdivision (a). (2) An individual’s giving information or testimony as to his or her own family care and medical leave, or another person’s family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section. (o) The provisions of this section shall be construed as separate and distinct from those of Section 12945. (p) Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences, except as specified in subdivision (s). (q) In any case in which both parents entitled to leave under subdivision (a) are employed by the same employer, the employer shall not be required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in subdivision (a). (r) (1) Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply: (A) The employee is a salaried employee who is among the highest paid 10 percent of the employer’s employees who are employed within 75 miles of the worksite at which that employee is employed. (B) The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer. (C) The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B). (2) In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C). (s) Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions that also qualifies for leave pursuant to subdivision (a) of Section 12945. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.