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AB-1001 Employment: familial status protection.(2009-2010)

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AB1001:v98#DOCUMENT

Amended  IN  Assembly  April 14, 2009

CALIFORNIA LEGISLATURE— 2009–2010 REGULAR SESSION

Assembly Bill
No. 1001

Introduced  by  Assembly Member Skinner, Ma

February 27, 2009

An act to amend Sections 12920, 12921, 12926, 12940, 12945.2, and 12955.2 of the Government Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1001, as amended, Skinner. Employment: familial status protection.
Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
This bill would include “familial status” as an additional basis upon which the right to seek, obtain, and hold employment cannot be denied. The bill would, for employment purposes, define “familial status” as having or providing care for a child, domestic partner, grandchild, grandparent, parent, parent-in-law, sibling, or spouse.

Existing law, the California Family Rights Act, permits employees of specified employers with more than 12 months of service with the employer and who have at least 1,250 hours of service with the employer during the previous 12-month period of employment to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Existing law defines “family care and medical leave” to mean leave for the birth or adoption of a child, the serious health condition of a child, parent, or spouse, or the serious health condition of the employee.

This bill would expand the definition of “family care and medical leave” to mean leave for the birth or adoption of a child, to care for the serious health condition of a parent, a grandparent, a parent-in-law, a spouse, a domestic partner, a sibling, or a child, or the serious health condition of the employee. The bill would also provide nonexclusive examples of activities that constitute care for the serious health condition of another.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 12920 of the Government Code is amended to read:

12920.
 It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation.
It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interest of employees, employers, and the public in general.
Further, the practice of discrimination because of race, color, religion, sex, marital status, national origin, ancestry, familial status, disability, or sexual orientation in housing accommodations is declared to be against public policy.
It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.

SEC. 2.

 Section 12921 of the Government Code is amended to read:

12921.
 (a) The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation is hereby recognized as and declared to be a civil right.
(b) The opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability, or any other basis prohibited by Section 51 of the Civil Code is hereby recognized as and declared to be a civil right.

SEC. 3.

 Section 12926 of the Government Code is amended to read:

12926.
 As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a) “Affirmative relief” or “prospective relief” includes the authority to order reinstatement of an employee, an award of backpay, reimbursement of out-of-pocket expenses, hiring, transfer, reassignment, a grant of tenure, promotion, a cease and desist order, posting of a notice, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct an unlawful practice under this part.
(b) “Age” refers to the chronological age of an individual who has reached his or her 40th birthday.
(c) “Employee” does not include an individual employed by his or her parents, spouse, or child, or an individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d) “Employer” includes a person regularly employing five or more persons, or a person acting as an agent of an employer, directly or indirectly, the state or a political or civil subdivision of the state, and cities, except as follows:
“Employer” does not include a religious association or corporation not organized for private profit.
(e) “Employment agency” includes a person undertaking for compensation to procure employees or opportunities to work.
(f) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including, but not limited to, one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer’s judgment as to which functions are essential.
(B) A Written job description prepared before advertising or interviewing an applicant for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experience of a past incumbent in the job.
(G) The current work experience of an incumbent in a similar job.
(g) “Labor organization” includes an organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with an employer concerning a grievance, the terms or conditions of employment, or of other mutual aid or protection.
(h) “Medical condition” means either of the following:
(1) A health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2) Genetic characteristics. For purposes of this section, “genetic characteristics” means either of the following:
(A) A scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with the symptoms of a disease or disorder.
(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with the symptoms of a disease or disorder.
(i) “Mental disability” includes, but is not limited to, all of the following:
(1) Having a mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A) “Limits” shall be determined without regard to mitigating measures, such as medication, an assistive device, or reasonable accommodation, unless the mitigating measure itself limits a major life activity.
(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C) “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.
(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or a related service.
(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
“Mental disability” does not include a sexual behavior disorder, compulsive gambling, kleptomania, pyromania, or a psychoactive substance use disorder resulting from the current unlawful use of a controlled substance or another drug.
(j) “On the bases enumerated in this part” means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation.
(k) “Physical disability” includes, but is not limited to, all of the following:
(1) Having a physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For purposes of this section:
(i) “Limits” shall be determined without regard to mitigating measures such as medication, an assistive device, a prosthetic, or reasonable accommodation, unless the mitigating measure itself limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.
(2) Any other health impairment not described in paragraph (1) that requires special education or related services.
(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a physical condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6) “Physical disability” does not include a sexual behavior disorder, compulsive gambling, kleptomania, pyromania, or a psychoactive substance use disorder resulting from the current unlawful use of a controlled substance or another drug.
(l) Notwithstanding subdivisions (i) and (k), if the definition of “disability” used in the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) would result in broader protection of the civil rights of an individual with a mental disability or physical disability, as defined in subdivision (i) or (k), or would include a medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (i) and (k).
(m) “Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(n) “Reasonable accommodation” may include either of the following:
(1) Making existing facilities used by an employee readily accessible to, and usable by, an individual with a disability.
(2) Job restructuring, a part-time or modified work schedule, reassignment to a vacant position, acquisition or modification of equipment or a device, adjustment or modification of an examination, training material or policy, the provision of a qualified reader or interpreter, and other similar accommodation for an individual with a disability.
(o) “Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice.
(p) “Sex” includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person’s gender, as defined in Section 422.56 of the Penal Code.
(q) “Sexual orientation” means heterosexuality, homosexuality, and bisexuality.
(r) “Supervisor” means an individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(s) “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facility involved in the provision of the reasonable accommodation, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of this accommodation upon the operation of the facility.
(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5) The geographic separateness, administrative, or fiscal relationship of the facility.
(t) In connection with unlawful employment practices, “familial status” means an individual under 18 years of age who resides with a parent, a parent or person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of a parent or other person with legal custody of an individual under 18 years of age by written consent of the parent or designated custodian. The protections against unlawful employment practices on the basis of familial status also apply to an individual who is in the process of securing legal custody of an individual under 18 years of age or who is in the process of being given care and custody of an individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. having or providing care for any of the following:
(1) A child as defined in Section 3302 of the Unemployment Insurance Code.
(2) A domestic partner as defined in Section 297 of the Family Code.
(3) A grandchild.
(4) A grandparent.
(5) A parent as defined in Section 3302 of the Unemployment Insurance Code.
(6) A parent-in-law, which means the parent of a spouse or domestic partner.
(7) A sibling as defined in subdivision (c) of Section 362.1 of the Welfare and Institutions Code.
(8) A spouse, which means the partner to a lawful marriage.

SEC. 4.

 Section 12940 of the Government Code is amended to read:

12940.
 It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation of a person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodation, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of another even with reasonable accommodation.
(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employee’s medical condition, is unable to perform his or her essential duties even with reasonable accommodation, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of another even with reasonable accommodation. Nothing in this part shall subject an employer to legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee’s medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of another even with reasonable accommodation.
(3) Nothing in this part relating to discrimination on account of marital status or familial status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B) Prohibit a bona fide health plan from providing additional or greater benefits to an employee with dependents than to an employee without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to a Vietnam-era veteran.
(5) Nothing in this part prohibits an employer from refusing to employ an individual because of his or her age if the law compels or provides for that refusal. A promotion within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from a high school, college, university, or trade school do not, in and of themselves, constitute unlawful employment practices.
(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation of a person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against a person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation of the person in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against its members or against an employer or against a person employed by an employer.
(c) For a person to discriminate against a person in the selection or training of that person in an apprenticeship training program or any other training program leading to employment because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation of the person discriminated against.
(d) For an employer or employment agency to print or circulate or cause to be printed or circulated a publication, or to make a non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, a limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation, or an intent to make such a limitation, specification, or discrimination. Nothing in this part prohibits an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.
(e) (1) Except as provided in paragraph (2) or (3), for an employer or employment agency to require the medical or psychological examination of an applicant, to make a medical or psychological inquiry of an applicant, to make an inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make an inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request for reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job-related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f) (1) Except as provided in paragraph (2), for an employer or employment agency to require the medical or psychological examination of an employee, to make a medical or psychological inquiry of an employee, to make an inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make an inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job-related and consistent with business necessity. An employer or employment agency may conduct a voluntary medical examination, including a voluntary medical history, that are part of an employee health program available to an employee at that worksite.
(g) For an employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against a person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against a hospital employee who reports suspected patient abuse by a health facility or a community care facility.
(h) For an employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against a person because the person has opposed a practice forbidden under this part or because the person has filed a complaint, testified, or assisted in a proceeding under this part.
(i) For a person to aid, abet, incite, compel, or coerce the doing of an act forbidden under this part, or to attempt to do so.
(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or a training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, familial status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or an agent or supervisor of the entity, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of a nonemployee, with respect to sexual harassment of an employee, applicant, or person providing services pursuant to a contract in the workplace, where the employer, or an agent or supervisor of the employer, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing a case involving the acts of a nonemployee, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the nonemployee shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of a tangible job benefit shall not be necessary in order to establish harassment.
(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3) An employee of an entity subject to this subdivision is personally liable for harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4) (A) For purposes of this subdivision only, “employer” means a person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or a person acting as an agent of an employer, directly or indirectly, the state, or a political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or a related medical condition.
(5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.
(k) For an employer, labor organization, employment agency, apprenticeship training program, or a training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and an employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.
(m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.
(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodation, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o) For an employer or other entity covered by this part, to subject, directly or indirectly, an employee, applicant, or other person to a test for the presence of a genetic characteristic.

SEC. 5.Section 12945.2 of the Government Code is amended to read:
12945.2.

(a)Except as provided in subdivision (b), it shall be an unlawful employment practice for an employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by an 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. 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 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)“Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either of the following:

(A)Under 18 years of age.

(B)An adult dependent child.

(2)“Employer” means either of the following:

(A)A person who directly employs 50 or more persons to perform services for a wage or salary.

(B)The state, and a political or civil subdivision of the state and cities.

(3)“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 parent, a grandparent, a parent-in-law, a spouse, a domestic partner, a sibling, or a child who has a serious health condition. Such care includes:

(i)Providing supervision, transportation, psychological comfort, or emotional comfort.

(ii)Addressing medical, educational, nutritional, hygienic, or safety needs.

(iii)Attending to an illness, injury, mental disability, or physical disability.

(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.

(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)“FMLA” means the federal Family and Medical Leave Act of 1993 (P.L. 103-3).

(6)“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.

(7)“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.

(8)“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 leave taken pursuant to subdivision (a), except as required by subdivision (e).

(e)An employee taking 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 child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.

(f)(1)During a 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 (1) of subdivision (b) of Section 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)An employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for a 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.

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 a collective bargaining agreement, or an 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 child, grandchild, a spouse, a domestic partner, a sibling, a parent, a grandparent, or a parent-in-law 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 a 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 a 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.

(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.

(l)It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, an 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 an inquiry or proceeding related to rights guaranteed under this section.

(m)This section shall not be construed to require a change in an existing collective bargaining agreement during the life of the contract, or until January 1, 1993, whichever occurs first.

(n)The amendments made to this section by the act adding this subdivision shall not be construed to require a change in an existing collective bargaining agreement during the life of the contract, or until February 5, 1994, whichever occurs first.

(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.

(q)In a 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 a 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 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.

SEC. 6. SEC. 5.

 Section 12955.2 of the Government Code is amended to read:

12955.2.
 For purposes of this part in connection with unlawful housing practices, “familial status” means an individual under 18 years of age who resides with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to an individual who is pregnant , who is in the process of securing legal custody of an individual under 18 years of age, or who is in the process of being given care and custody of an individual under 18 years of age by a state or local governmental agency responsible for the welfare of children.

SEC. 7.SEC. 6.

 The Legislature intends that nothing in these amendments of Sections 12920, 12921, 12940, 12945.2, and 12955.2 of the Government Code supersedes, limits, or preempts any provision of federal, state, or local law that provides greater protections from employment discrimination than those provided in these sections. The Legislature further intends that these amendments not limit or preclude any claim or cause of action on the basis of familial status or family responsibilities under federal, state, or local law.