HomeMy WebLinkAboutAB 2039 - Swanson - Employee LeaveCITY OF PALM DESERT
OFFICE OF THE CITY MANAGER
STAFF REPORT
REQUEST: APPROVE THE PALM DESERT LEGISLATIVE REVIEW
COMMITTEE'S RECOMMENDATION TO PROVIDE A LETTER
OF OPPOSITION FOR AB 2039 (SWANSON).
SUBMITTED BY: Stephen Y. Aryan, Risk Manager
DATE: May 10, 2012
CONTENTS: AB 2039 Bill Text
Recommendation
By Minute Motion, approve the recommended letter of Opposition for AB 2039
(Swanson)
Committee Recommendation
On April 27, 2012, the Palm Desert Legislative Review Committee recommended that the City
Council approve a letter of opposition for AB 2039 (Swanson).
Background
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 18 years of age or an adult dependent
child. The act defines "parent" to mean 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.
This bill would increase the circumstances under which an employee is entitled to protected
leave pursuant to the Family Rights Act by
AB 2039: Opposition Letter
May 10, 2012
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(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,
(2) Expanding the definition of "parent" to include an employee's parent -in-law, and
(3) Permitting an employee to also take leave to care for a seriously ill grandparent, sibling,
grandchild, or domestic partner, as defined.
AB 2039 (Swanson) expands the types of individuals or circumstances under which an
employee can take a leave of absence under CFRA, through AB 2039, would only further
increase the cost of doing business for employers in California.
Given that the individuals proposed by AB 2039 are not covered by the FMLA, an employee
could use 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.
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. This bill may impede growth and
overburden statewide and local employers with such a requirement; therefore, staff supports a
letter of opposition for this bill.
Fiscal Analysis
There is no direct fiscal impact to this bill; however, it could lead to increased staffing costs to
temporary fill positions due to extended leaves of absence.
Submitted By:
Stephen �. AfyAn, Risk Ma
Approval �
er CITY COUNCILACTION
APPROVED �� DENIED
RECEIVED OTHER
Paul S. Gibson, Director of Finance
M. Wohlmuth, City Manager
i�IEETING DATE
i \J
NOES: C'IE-
ABSENT: '1�VIC
ABSTAIN: _k cll�—
, EDBY: kl)K11-4
Original on File with City Clerk's'Office
Bill Text - AB-2039 Family and medical leave.
Page 1 of 5
al LEGISLATIVE INFORMATION
ASSEMBLY BILL
AS-2039 Family and medical leave. (2011-2012)
CALIFORNIA LEGISLATURE— 2011-2012 REGULAR SESSION
Introduced by Assembly Member Swanson
February 23, 2012
No. 2039
An act to amend Section 12945.2 of the Government Code, relating to family and
medical leave.
LEGISLATIVE COUNSEL'S DIGEST
AB 2039, as introduced, Swanson. 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
18 years of age or an adult dependent child. The act defines "parent" to mean 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.
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, (2) expanding the definition of "parent" to include an employee's parent -in-law,
and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or
domestic partner, as defined.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12945.2 of the Government Code is amended to read:
12946.2. (a) Except as provided in subdivision (b), it-s4al+-be is an unlawful employment practice for any
employer, as defined in paragrapher (3) 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
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Bill Text - AB-2039 Family and medical leave.
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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. Family care and medical leave requested pursuant to this subdivision shall
not be deemed to have been granted unless the employer provides the employee, upon granting the leave
request, a guarantee of employment in the same or a comparable position upon the termination of the leave.
The commission shall adopt a regulation specifying the elements of a reasonable request.
(b) Notwithstanding subdivision (a), it trH 1+ is not t, 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 employs4ess fewer
than 50 employees within 75 miles of the worksite where that employee is employed.
(c) For purposes of this section:
(1) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing
in loco parentis .
(2) "Domestic partner" has the same meaning as set forth in Section 297 of the Family Code.
(3) "Employer" means either of the following:
(A) A+,�--A person who directly employs 50 or more persons to perform services for a wage or salary.
(B) The state, and any political or civil subdivision of the state and cities.
(41,
(4) "Employment in the same or a comparable position" means employment in a position that has the same or
similar duties and pay that can be performed at the same or similar geographic location as the position held
prior to the leave.
(5) "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 empleree, OF the seFieus health ....ndition of
ehi+d e€the employee.
(B) Leave to care for a parent, grandparent, sibling, child, grandchild, domestic partner, ors spouse who has a
serious health condition.
(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 for disability on account of pregnancy,
childbirth, or related medical conditions.
fs)
(6) "FMLA" means the federal Family and Medical Leave Act of 1993 (P.L. 103-3).
(7) "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.
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Bill Text - AB-2039 Family and medical leave.
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(8) "Parent" means a biological, foster, or adoptive parent, a stepparent, a parent -in-law, a legal guardian, or
other person who stood in loco parentis to the employee when the employee was a child.
(9) "Parent -in-law" means the parent of a spouse or a domestic partner.
(10) "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.
(11) "Sibling" means a person related to another person by blood, adoption, or affinity through a common legal
or biological parent.
(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 parent, grandparent, sibling, child, -mot grandchild,
domestic partner, or spouse 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 paragraph (I) of subsection (b) of Section 5999(b)(1) 5000 of Title 26 of the Internal
Revenue Code, 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 insurance or 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 insurance or 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.
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Bill Text - AB-2039 Family and medical leave.
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(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 may require that an employee's request for leave to care for a parent, grandparent, sibling,
child,se grandchild, domestic partner, or a parent spouse 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) 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.
(k) (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) 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.
(3) (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).
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Bill Text - AB-2039 Family and medical leave.
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(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.
(4) 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.
(1) Igoe is an unlawful employment practice for an employer to refuse to hire, or to discharge, fine,
suspend, expel, or discriminate 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.
(m) This section shall does not be eeAStFued -te require any changes in existing collective bargaining
agreements during the life of the contract, or until January 1, 1993, whichever occurs first.
(n) The amendments made to this section by Chapter 827 of the Statutes of 1993 shall not be construed to
require any changes in existing collective bargaining agreements during the life of the contract, or until
February 5, 1994, whichever occurs first.
(o) This section shall be construed as separate and distinct from 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.
(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. 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.
(t) It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise
of, or the attempt to exercise, any right provided under this section.
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