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AB-2992 Employment practices: leave time.(2019-2020)

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Date Published: 05/11/2020 09:00 PM
AB2992:v98#DOCUMENT

Amended  IN  Assembly  May 11, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2992


Introduced by Assembly Member Weber
(Principal coauthor: Senator Bradford)

February 21, 2020


An act to amend Section 12945.2 of the Government Code, to amend Sections 230 and 230.1 of the Labor Code, and to amend Section 1256 of the Unemployment Insurance Code, relating to employment, and making an appropriation therefor. employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 2992, as amended, Weber. Employment practices: leave time and unemployment benefits. time.

(1)Existing law, the Moore-Brown-Roberti Family Rights Act, or the California Family Rights Act (CFRA), 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 for family care and medical leave, as specified. Existing law makes this leave available to an employee with more than 12 months of service with the employer and at least 1,250 hours of service with the employer within the last 12 months. Existing law creates an exception to this provision, by prescribing that it is not 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.

This bill would delete that exception. The bill would require an employer to allow family and medical leave of up to 12 workweeks in any 12-month period, if the employer employs 50 or more employees within 75 miles of the worksite where the employee is employed, 6 workweeks in any 12-month period for family care or medical leave, if the employer employs at least 20 but not more than 49 employees within 75 miles of the worksite where the employee is employed, and 2 workweeks in any 12-month period for family care or medical leave, if the employer employs at least one but not more than 19 employees within 75 miles of the worksite where the employee is employed.

Existing law defines an “employer” for these purposes, to include a person who directly employs 50 or more persons to perform services for a wage or salary.

This bill would delete the above reference to 50, thereby expanding the definition to apply to any person who directly employs persons for a wage or salary.

Existing law also defines a “child” for these purposes, as specified, to include a child who is under 18 years of age.

This bill would revise that definition to apply to a person who is under 25 years of age.

Existing law defines “family and medical leave” to include, among other things, specified leave for the birth of a child, to care for a parent or spouse with a serious health condition, or leave because of the employee’s own serious health condition.

This bill would expand that definition to include leave to care for a child or a person living in the employee’s household with a relationship to the employee that is substantially similar to that of a spouse or child, who has a serious health condition. The bill would also include leave to grieve the death of the employee’s child, spouse, sibling, or person who was a member of the employee’s household with a relationship that was substantially similar to that of a child or spouse.

(2)

(1) Existing law prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off from work to obtain or attempt to obtain relief to help ensure the health, safety, or welfare of the victim or victim’s child. Existing law requires an employee, as a condition of taking time off for these purposes, to give the employer reasonable advance notice of the employee’s intention to take time off, unless doing so is not feasible. Existing law also requires an employer, upon request, to provide reasonable accommodation to an employee who is a victim of domestic violence, sexual assault, or stalking. Existing law prohibits an employer, when an unscheduled absence occurs, from taking any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer meeting certain criteria. criteria, including documentation from one of specified persons that the employee was undergoing treatment for specific injuries. Existing law authorizes an employee to file a complaint with the Division of Labor Standards Enforcement for a violation of that prohibition, and makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.
This bill would expand the above provision to prohibit an employer from discharging, or discriminating or retaliating against, an employee who is a victim, or the immediate family or household member of a victim, victim of crime or abuse for taking time off from work to obtain or attempt to obtain relief, or for taking time off from work to provide assistance to an immediate family or household member seeking relief, to ensure the health, safety, or welfare of the victim’s immediate family or household member. relief, as prescribed. The bill would also prohibit an employer from taking action against an employee, when an unscheduled absence occurs, if the employee victim of crime or abuse provides the employer with a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for an authorized purpose, as specified. The bill would authorize the employer, under these circumstances, to request additional certification from an employee following an absence, and would permit certification that they were receiving services for certain injuries, or if the documentation is from a victim advocate, as defined. The bill would additionally prohibit such action if the employee provides certification to be in any other form of documentation that reasonably verifies that the crime or abuse occurred. The bill would also define “victim” and “immediate family or household member” “crime for purposes of these provisions. By expanding the definition of a crime, the bill would impose a state-mandated local program.

(3)Existing law also permits an employee to use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, to serve on an inquest or trial jury, to appear in court to comply with a subpoena or other court order as a witness, or to obtain or attempt to obtain relief to help ensure the health, safety, or welfare of the victim or victim’s child.

This bill would permit an employee to take up to 6 workweeks’ leave during a 12-month period for time obtaining or attempting to obtain relief to ensure the health, safety, or welfare of the victim or victim’s immediate family or household member. The bill would permit this leave to be either paid or unpaid, at the employer’s discretion, and would require, where applicable, that this leave run concurrently to any additional leave allowable for the same purposes under the federal Family and Medical Leave Act of 1993, and other specified provisions of state law.

(4)

(2) Existing law also prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for any of specified purposes, including seeking medical attention for injuries. injuries caused by domestic violence, sexual assault, or stalking.
This bill would expand the above provision to apply to all employers and also to prohibit the discharge of, or discrimination or retaliation against, an employee who is a victim or immediate family or household member of a victim of stalking, domestic violence, sexual assault, and various other crimes, victim, as defined, for taking off work, as specified. The bill would expand revise the categories of time off work under these circumstances, to include, among other things, to grieve the death of, or attend the funeral of, an employee’s immediate family or household member who is deceased as a result of crime or abuse. taking time off work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of the crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crime or abuse. The bill would define terms for these purposes.

(5)Existing law, for purposes of unemployment insurance provisions, requires employers to make contributions with respect to unemployment insurance and disability insurance from the wages paid to their employees. Existing law establishes that an unemployed individual is eligible to receive unemployment benefits with respect to any week only if the Director of Employment Development makes certain findings regarding the individual’s claims. Existing law specifies that unemployment compensation benefits are payable to unemployed individuals from the Unemployment Insurance Fund, a continuously appropriated fund.

Existing law disqualifies an individual for unemployment compensation benefits if the Director of Employment Development finds that the individual left their most recent work voluntarily without good cause or was discharged for misconduct connected with their most recent work. Existing law creates a rebuttable presumption that a person was discharged for reasons other than misconduct in connection with their work and has not left work voluntarily without good cause unless their employer has given written notice to the contrary to the Employment Development Department setting forth facts sufficient to overcome the presumption. Existing law specifies that an individual may be deemed to have left their most recent work with good cause if they leave their employment to protect their family or self from domestic violence abuse.

This bill would expand this provision to both (A) specify that an individual may also be deemed to have left their most recent work with good cause if they leave employment to protect a household member from domestic violence abuse and (B) cover the crimes of stalking, sexual violence, or another crime that could reasonably cause physical injury, or emotional injury and the threat of physical injury. The bill would further expand this provision to specify that an individual may be deemed to have left their most recent work with good cause if they leave employment to recover from physical or emotional injuries to themselves, their family, or a household member following domestic violence abuse, stalking, sexual violence, or another crime that caused physical injury or emotional injury and the threat of physical injury.

Because this bill would increase the circumstances in which individuals are eligible to receive benefits from, thereby providing for increased amounts payable from the Unemployment Insurance Fund, a continuously appropriated fund, the bill would make an appropriation.

The

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: YESNO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.Section 12945.2 of the Government Code is amended to read:
12945.2.

(a)It shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (b), 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 or who meets the requirements of subdivision (t), to take family care and medical leave up to a total of the amount of time allowed pursuant to this subdivision. 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. An employer shall allow family care and medical leave up to the following:

(1)Twelve workweeks in any 12-month period, if the employer employs 50 or more employees within 75 miles of the worksite where the employee is employed.

(2)Six workweeks in any 12-month period for family care or medical leave, if the employer employs at least 20 but not more than 49 employees within 75 miles of the worksite where the employee is employed.

(3)Two workweeks in any 12-month period for family care or medical leave, if the employer employs at least one but not more than 19 employees within 75 miles of the worksite where the employee is employed.

(b)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 who is standing or has stood in loco parentis who is any of the following:

(A)Under 25 years of age.

(B)An adult dependent child.

(C)For the purpose of leave pursuant to subparagraph (D) of paragraph (3) only, any person regardless of age or dependency status.

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

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

(B)The state, and any 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, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of a child of the employee.

(B)Leave to care for a parent, spouse, or child of the employee, or to care for a person living in the employee’s household with a relationship to the employee that is substantially similar to that of a spouse or child 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.

(D)Leave to grieve the death of a child of the employee, death of the spouse of the employee, death of the sibling of the employee, or death of a person who, at the time of their death, was a member of the employee’s household with a relationship to the employee that was substantially similar to that of a child or spouse.

(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.

(9)“Sibling” means a biological, foster, or adoptive sibling, a stepsibling, or a half-sibling.

(c)An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (d).

(d)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 child, parent, spouse, or person living in the employee’s household with a relationship substantially similar to that of a child or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.

(e)(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, for the duration of the leave, not to exceed the amount of leave time the employer is required to allow under the FMLA or under subdivision (a) commencing on the date leave taken under the FMLA or under subdivision (a) 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 or beyond the amount of family and medical leave time that the employer is required to allow under subdivision (a). 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)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 the employer’s 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.

(f)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.

(g)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.

(h)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.

(i)(1)An employer may require that an employee’s request for leave to care for a child, a spouse, a parent, or a person living in the employee’s household with a relationship substantially similar to that of a child or 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.

(j)(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 the employee’s 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 the employee’s 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).

(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 the employee’s 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.

(k)It shall be 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 the individual’s 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.

(l)This section shall not be construed to require any changes in existing collective bargaining agreements during the life of the contract, or until January 1, 1993, whichever occurs first.

(m)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.

(n)This section shall be construed as separate and distinct from Section 12945.

(o)Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 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.

(p)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).

(q)(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).

(r)Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, where both are applicable, 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.

(s)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.

(t)(1)An employee employed by an air carrier as a flight deck or cabin crew member meets the eligibility requirements specified in subdivision (a) if all of the following requirements are met:

(A)The employee has 12 months or more of service with the employer.

(B)The employee has worked or been paid for 60 percent of the applicable monthly guarantee, or the equivalent annualized over the preceding 12-month period.

(C)The employee has worked or been paid for a minimum of 504 hours during the preceding 12-month period.

(2)As used in this subdivision, the term “applicable monthly guarantee” means both of the following:

(A)For employees described in this subdivision other than employees on reserve status, the minimum number of hours for which an employer has agreed to schedule such employees for any given month.

(B)For employees described in this subdivision who are on reserve status, the number of hours for which an employer has agreed to pay such employees on reserve status for any given month, as established in the collective bargaining agreement or, if none exists, in the employer’s policies.

(3)The department may provide, by regulation, a method for calculating the leave described in subdivision (a) with respect to employees described in this subdivision.

(u)An employer may require that an employee’s request for leave to grieve the death of a child of the employee, the death of a spouse of the employee, the death of a sibling of the employee, or the death of a person who at the time of death was a member of the employee’s household with a relationship to the employee that was substantially similar to that of a child or spouse be supported by a certification. That certification shall be sufficient if it includes any of the following:

(1)A death certificate.

(2)A published obituary.

(3)A written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

SEC. 2.SECTION 1.

 Section 230 of the Labor Code is amended to read:

230.
 (a) An employer shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.
(b) An employer shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.
(c) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim, or the immediate family or household member of a victim, victim for taking time off from work to obtain or attempt to obtain any relief, or for taking time off from work to provide assistance to an immediate family or household member seeking relief. Relief includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or the victim’s immediate family or household member. their child.
(d) (1) As a condition of taking time off for a purpose set forth in subdivision (c), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides the employer a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section. a certification to the employer. Certification shall be sufficient in the form of any of the following:

(3)The employer may request additional certification from an employee following an absence pursuant to this section. Certification shall be sufficient in the form of any of the following:

(A) A police report indicating that the employee, or an immediate family or household member of the employee, employee was a victim.
(B) A court order protecting or separating the employee, or an immediate family or household member of the employee, employee from the perpetrator of the crime or abuse, or other evidence from the court or prosecuting attorney that the employee, or an immediate family or household member of the employee, employee has appeared in court.
(C) Documentation from a licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, victim advocate responding to the victimization, advocate, licensed health care provider, or counselor that the employee, or an immediate family or household member of the employee, employee was undergoing treatment or receiving services for physical or mental injuries or abuse resulting in victimization from the crime or abuse.
(D) Any other form of documentation that reasonably verifies that the crime or abuse occurred. occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section or under Section 230.1.

(4)

(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f), the employer shall maintain the confidentiality of any employee requesting leave under subdivision (c).
(e) An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a victim, or an immediate family or household member of a victim, victim of crime or abuse, if the employee provides notice to the employer of the status or the employer has actual knowledge of the status.
(f) (1) An employer shall provide reasonable accommodations for a victim, or immediate family or household member of a victim of crime or abuse, domestic violence, sexual assault, or stalking, who requests an accommodation for the safety of the victim, or immediate family or household member of a victim, victim while at work.
(2) For purposes of this subdivision, reasonable accommodations may include the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, stalking, or other crime that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, stalking, or other crime, or referral to a victim assistance organization.
(3) An employer is not required to provide a reasonable accommodation to an employee who has not disclosed the employee’s status as a victim or immediate family or household member of a victim. of domestic violence, sexual assault, or stalking.
(4) The employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(5) In determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.
(6) This subdivision does not require the employer to undertake an action that constitutes an undue hardship on the employer’s business operations, as defined by Section 12926 of the Government Code. For the purposes of this subdivision, an undue hardship also includes an action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required by Section 6400 of the Labor Code.
(7) (A) Upon the request of an employer, an employee requesting a reasonable accommodation pursuant to this subdivision shall provide the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the accommodation is for a purpose authorized under this subdivision.
(B) The employer may also request certification from an employee requesting an accommodation pursuant to this subdivision demonstrating the employee’s status as a victim or immediate family or household member of a victim. of domestic violence, sexual assault, or stalking. Certification shall be sufficient in the form of any of the categories described in paragraph (3) of subdivision (d).
(C) An employer who requests certification pursuant to subparagraph (B) may request recertification of an employee’s status as a victim, or immediate family or household member of a victim, victim of domestic violence, sexual assault, or stalking, or ongoing circumstances related to the crime or abuse, every six months after the date of the previous certification.
(D) Any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee as a victim, or immediate family or household member of a victim, victim shall be maintained as confidential by the employer and shall not be disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee shall be given notice before any authorized disclosure.
(E) (i) If circumstances change and an employee needs a new accommodation, the employee shall request a new accommodation from the employer.
(ii) Upon receiving the request, the employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(F) If an employee no longer needs an accommodation, the employee shall notify the employer that the accommodation is no longer needed.
(8) An employer shall not retaliate against a victim, or immediate family or household member of a victim, victim for requesting a reasonable accommodation, regardless of whether the request was granted.
(g) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by their employer because the employee has taken time off for a purpose set forth in subdivision (a) or (b) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
(2) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by their employer for reasons prohibited in subdivision (c) or (e), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (f), shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief.
(3) An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.
(h) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by their employer because the employee has exercised their rights as set forth in subdivision (a), (b), (c), (e), or (f) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division based upon a violation of subdivision (c), (e), or (f) within one year from the date of occurrence of the violation.
(i) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a), (b), or (c). In addition to any vacation, personal leave, or other compensatory time off that is already available to the employee, an employee shall be entitled to up to six workweeks’ leave during any 12-month period for time taken off for a purpose specified in subdivision (c). This leave may be with or without pay, at the discretion of the employer. Where applicable, this additional leave shall run concurrently to any additional leave allowable for the same purposes under the federal Family and Medical Leave Act of 1993 (P.L. 103-3), under Section 12945.2 of the Government Code, or under Section 230.1 of this code. The entitlement of any employee under this section shall not be diminished by any collective bargaining agreement term or condition.
(j) For purposes of this section:
(1) “Crime” means a crime or public offense as set forth in Section 13951 of the Government Code, and regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

(1)

(2) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(3) “Immediate family member” means a person who is any of the following:
(A) Regardless of age, a biological, adopted, or foster child, stepchild, or legal ward, a child of a domestic partner, a child to whom the employee stands in loco parentis, or a person to whom the employee stood in loco parentis when the person was a minor.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or an employee’s spouse or domestic partner, or a person who stood in loco parentis when the employee or the employee’s spouse or domestic partner was a minor child.
(C) A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision.
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling.
(E) Any other individual whose close association with the employee is the equivalent of a family relationship described in subparagraph (A), (B), (C), or (D).

(2)

(4) “Sexual assault” means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a of, the Penal Code, as amended.

(3)

(5) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.

(4)“Victim” means a victim of stalking, domestic violence, sexual assault, a victim of a crime that caused physical injury, a victim of a crime that caused emotional injury and the threat of physical injury, a victim of a crime that caused death, or any other person who meets the definition of a victim pursuant to Section 13951 of the Government Code, except that when used in subdivision (b), “victim” means any person against whom any crime has been committed.

(5)“Immediate family or household member” means a person who is any of the following in relation to the victim or the employee as specified, and who is not alleged to have committed the crime or abuse against the victim:

(A)Spouse or parent, as defined by Section 12945.2 of the Government Code.

(B)An adult or minor biological, adopted, or foster child, a stepchild, a legal ward, or an adult or minor child of someone who is standing or has stood in loco parentis.

(C)A person living in the same household at the time of the crime or abuse.

(D)A person who had previously lived in the same household for a period of not less than two years in a relationship substantially similar to a relationship of a parent, sibling, child, or spouse.

(E)Another family member, including, but not limited to, a fiance and who witnessed the crime or abuse.

(F)The primary caretaker of a minor victim.

(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault.
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury.
(C) The immediate family member of a person who is deceased as the direct result of a crime.
(D) For the purposes of subdivision (b) only, any person against whom any crime has been committed.
(7) “Victim advocate” means an individual, whether paid or serving as a volunteer, who provides services to victims under the auspices or supervision of an agency or organization that has a documented record of providing services to victims, or under the auspices or supervision of a court or a law enforcement or prosecution agency.

SEC. 3.SEC. 2.

 Section 230.1 of the Labor Code is amended to read:

230.1.
 (a) In addition to the requirements and prohibitions imposed on employees pursuant to Section 230, an employer with 25 or more employees shall not discharge, or in any manner discriminate or retaliate against, an employee who is a victim, or immediate family or household member of a victim, for taking time off from work for any of the following purposes:
(1) To seek medical attention for or recover from physical or emotional injuries caused to the employee or the employee’s immediate family or household member by crime or abuse.
(2) To obtain services for the employee or the employee’s immediate family or household member from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of the crime or abuse.
(3) To obtain psychological counseling or mental health services for the employee or the employees’ immediate family or household member related to an experience of crime or abuse.
(4) To participate in safety planning and take other actions to increase safety from future crime or abuse, including temporary or permanent relocation.

(5)To attend the funeral or alternative to a funeral of an immediate family or household member who is deceased as a result of crime or abuse.

(6)To make arrangements necessitated by the death of an employee’s immediate family or household member who is deceased as a result of crime or abuse.

(7)To grieve the death of an employee’s immediate family or household member who is deceased as a result of crime or abuse.

(b) (1) As a condition of taking time off for a purpose set forth in subdivision (a), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section. The employer may also require additional certification from the employee. a certification to the employer. Certification shall be sufficient in the form of any of the categories described in paragraph (3) (2) of subdivision (d) of Section 230.
(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f) of Section 230, employers shall maintain the confidentiality of any employee requesting leave under subdivision (a).
(c) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by their employer because the employee has taken time off for a purpose set forth in subdivision (a) is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief. An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.
(d) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by their employer because the employee has exercised their rights as set forth in subdivision (a) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division based upon a violation of subdivision (a) within one year from the date of occurrence of the violation.
(e) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a). In addition to any vacation, personal leave, or other compensatory time off that is already available to the employee, an employee shall be entitled to up to six workweeks of leave during any 12-month period for time taken off for a purpose specified in subdivision (a). This leave may be with or without pay, at the discretion of the employer. Where applicable, additional leave shall run concurrently to any leave allowable for the same purposes under the federal Family and Medical Leave Act of 1993 (Public Law 103-3), under Section 12945.2 of the Government Code, or under Section 230. Leave under paragraphs (5), (6), or (7) of subdivision (a) shall be taken concurrently to any bereavement leave to which the employee is entitled. The entitlement of any employee under this section shall not be diminished by any term or condition of a collective bargaining agreement.
(f) This section does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition to the unpaid leave time permitted by, the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.).
(g) For purposes of this section:
(1) “Crime” means a crime or public offense as set forth in Section 13951 of the Government Code, and regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

(1)

(2) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(3) “Immediate family member” means a person who is any of the following:
(A) Regardless of age, a biological, adopted, or foster child, stepchild, or legal ward, a child of a domestic partner, a child to whom the employee stands in loco parentis, or a person to whom the employee stood in loco parentis when the person was a minor.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or an employee’s spouse or domestic partner, or a person who stood in loco parentis when the employee or the employee’s spouse or domestic partner was a minor child.
(C) A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision.
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling.
(E) Any other individual whose close association with the employee is the equivalent of a family relationship described in subparagraph (A), (B), (C), or (D).

(2)

(4) “Sexual assault” means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a of, the Penal Code, as amended.

(3)

(5) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.

(4)“Victim” means a victim of stalking, domestic violence, sexual assault, a victim of a crime that caused physical injury, a victim of a crime that caused emotional injury and included the threat of physical injury, a victim of a crime that caused death, or any other person who meets the definition of a victim pursuant to Section 13951 of the Government Code.

(5)“Immediate family or household member” means a person who is any of the following in relation to the victim or the employee as specified, and who is not alleged to have committed the crime or abuse against the victim:

(A)A spouse or parent, as defined in Section 12945.2 of the Government Code.

(B)An adult or minor biological, adopted, or foster child, a stepchild, a legal ward, or an adult or minor child of someone who is standing or has stood in loco parentis.

(C)A person living in the same household at the time of the crime or abuse.

(D)A person who had previously lived in the same household for a period of not less than two years in a relationship substantially similar to a relationship of a parent, sibling, child, or spouse.

(E)Another family member, including, but not limited to, a fiance and who witnessed the crime or abuse.

(F)The primary caretaker of a minor victim.

(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault.
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury.
(C) The immediate family member of a person who is deceased as the direct result of a crime.
(7) “Victim services organization or agency” means an agency or organization that has a documented record of providing services to victims.
(h) (1) Employers shall inform each employee of their rights established under this section and subdivisions (c), (e), and (f) of Section 230 in writing. The information shall be provided to new employees upon hire and to other employees upon request.
(2) The Labor Commissioner shall develop a form that an employer may use to comply with the notice requirements in paragraph (1). The form shall set forth the rights and duties of employers and employees under this section in clear and concise language. The Labor Commissioner shall post the form on the commissioner’s internet website to make it available to employers who are required to comply with this section. If an employer elects not to use the form developed by the Labor Commissioner, the notice provided by the employer to the employees shall be substantially similar in content and clarity to the form developed by the Labor Commissioner. The Labor Commissioner shall revise the form and post it in accordance with this paragraph on or before January 1, 2022.
(3) Employers shall not be required to comply with paragraph (1) until the Labor Commissioner posts the form on the commissioner’s internet website in accordance with paragraph (2).

SEC. 4.Section 1256 of the Unemployment Insurance Code is amended to read:
1256.

(a)An individual is disqualified for unemployment compensation benefits if the director finds that they left their most recent work voluntarily without good cause or that they have been discharged for misconduct connected with their most recent work.

(b)An individual is presumed to have been discharged for reasons other than misconduct in connection with their work and not to have voluntarily left their work without good cause unless their employer has given written notice to the contrary to the department as provided in Section 1327, setting forth facts sufficient to overcome the presumption. The presumption provided by this section is rebuttable.

(c)An individual whose employment is terminated under the compulsory retirement provisions of a collective bargaining agreement to which the employer is a party, shall not be deemed to have left their work without good cause.

(d)An individual may be deemed to have left their most recent work with good cause if that individual leaves employment to accompany their spouse or domestic partner to a place or to join that person at a place from which it is impractical to commute to the employment. For purposes of this section “spouse” includes a person to whom marriage is imminent, and “domestic partner” includes a person to whom a domestic partnership, as described in Section 297 of the Family Code, is imminent.

(e)An individual may be deemed to have left their most recent work with good cause if the individual leaves employment to protect themselves, their family, or their household member from domestic violence abuse, stalking, sexual violence, or another crime that could reasonably cause physical injury, or emotional injury and the threat of physical injury.

(f)An individual may be deemed to have left their most recent work with good cause if the individual leaves employment to recover from physical or emotional injuries to themselves, their family, or their household member following domestic violence abuse, stalking, sexual violence, or another crime that caused physical injury or caused emotional injury and the threat of physical injury.

(g)An individual shall be deemed to have left their most recent work with good cause if the individual elects to be laid off in place of an employee with less seniority pursuant to a provision in a collective bargaining agreement that provides that an employee with more seniority may elect to be laid off in place of an employee with less seniority when the employer has decided to lay off employees.

SEC. 5.SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 6.SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.