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AB-3216 Employee leave: authorization: coronavirus (COVID-19).(2019-2020)

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Date Published: 03/12/2020 09:00 PM
AB3216:v98#DOCUMENT

Amended  IN  Assembly  March 12, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3216


Introduced by Assembly Member Kalra

February 21, 2020


An act to amend Section 301 of the Business and Professions Code, relating to consumers. add and repeal Section 12945.7 of the Government Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 3216, as amended, Kalra. Consumers. Employee leave: authorization: coronavirus (COVID-19).
Existing law, the Moore-Brown-Roberti Family Rights Act, or 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.
This bill would also make it an unlawful employment practice for an employer, as defined, to refuse to grant a request by an eligible employee to take family and medical leave due to the coronavirus (COVID-19), as specified. The bill would require a request under this provision to be made and granted in a similar manner to that provided under the CFRA. The bill would specify that an employer is not required to pay an employee for the leave taken, but would authorize an employee taking a leave to elect, or an employer to require, a substitution of the employee’s accrued vacation or other time off during this period and any other paid or unpaid time off negotiated with the employer. The bill would authorize an employee, if the employee takes leave because of the employee’s own diagnosis with or quarantine because of COVID-19, to elect, or the employer to require, that the employee substitute their accrued sick leave. The bill would prohibit an employee from using sick leave during a period of leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner diagnosed with or quarantined because of COVID-19. The bill would require an employer, during any period in which an eligible employee takes leave, to maintain and pay for coverage under a group health plan, as defined, and would authorize the employer to recover the premium that the employee paid under certain circumstances.
The bill would permit employees taking leave due to COVID-19 to continue participation in employee health plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans, as prescribed. The bill would provide that during a medical leave period taken due to COVID-19 an employee would retain employee status with the employer and that this leave does not constitute a break in service.
The bill would authorize an employer to require that an employee’s request for leave under these provisions to care for an employee’s relative or for the employee’s own care be supported by a certification issued by a health care provider, and would specify that certification is sufficient if it includes, among other required information, the date on which the diagnosis or quarantine was given, the probable duration thereof, and an estimate of the time needed.
The bill would make it an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, an individual because of the individual’s exercise of leave right under these provisions or the individual’s giving information or testimony as to family care and medical leave due to COVID-19. The bill would specify that leave granted under these provisions is separate and distinct from any leave granted under the CFRA or the federal Family and Medical Leave Act of 1993.
The bill would remain in effect until January 1, 2022.

Existing law, the Consumer Affairs Act, states that it is the intent of the Legislature to promote and protect the interests of the people as consumers, and that the government advances the interests of consumers by, among other things, protecting consumers from the sale of goods and services through the use of deceptive methods, acts, or practices that are inimical to the general welfare of consumers.

This bill would make a nonsubstantive change to this provision.

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

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


SECTION 1.

 Section 12945.7 is added to the Government Code, to read:

12945.7.
 (a) It shall be an unlawful employment practice for any employer to refuse to grant a request by any employee to take family care and medical leave due to the coronavirus (COVID-19). Family care and medical leave due to the coronavirus (COVID-19) 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 comparable position upon the termination of the leave.
(b) A request made pursuant to subdivision (a) may be made and granted in a manner similar to a request made pursuant to Section 12945.2.
(c) For purposes of this section:
(1) “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or a person to whom the employee stands in loco parentis.
(2) “Domestic partner” has the same meaning as defined in Section 297 of the Family Code.
(3) “Employer” means either of the following:
(A) Any person who directly employs one or more persons to perform services for a wage or salary.
(B) The state, or any political or civil subdivision of the state, and cities.
(4) “Employment in the same or a comparable position” means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.
(5) “Family care and medical leave due to the coronavirus (COVID-19)” means any of the following:
(A) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has been diagnosed with or quarantined because of the coronavirus (COVID-19).
(B) Leave for an employee’s own diagnosis with or quarantine because of the coronavirus (COVID-19) that makes the employee unable to perform the functions of the position of that employee.
(6) “Grandchild” means a child of the employee’s child.
(7) “Grandparent” means a parent of the employee’s parent.
(8) “Health care provider” means 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 or an individual duly licensed as a physician or surgeon in another state or jurisdiction who directly treats or supervises the treatment of the employee’s condition.
(9) “Parent” means a biological, foster, or adoptive parent, a stepparent, a parent-in-law, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
(10) “Parent-in-law” means the parent of a spouse or domestic partner.
(11) “Sibling” means a person related to another person by blood, adoption, or affinity through a common legal or biological parent.
(d) An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e) An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes leave because of the employee’s own diagnosis with or quarantine because of the coronavirus (COVID-19), the employee may also elect, or the employer may 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 to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner diagnosed with or quarantined because of the coronavirus (COVID-19).
(f) During any period that an eligible employee takes leave pursuant to subdivision (a), 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, commencing on the date leave was taken, 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. 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:
(1) The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(2) 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 Section 12945.2, or circumstances beyond the control of the employee.
(g) (1) 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 subdivision (f), 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 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, accrued sick 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.
(2) 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.
(h) During a medical leave period taken pursuant to subdivision (a), 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.
(i) (1) An employer may require that an employee’s request for leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner diagnosed with or quarantined because of the coronavirus (COVID-19) 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 coronavirus (COVID-19) diagnosis or quarantine was given.
(B) The probable duration of the condition or quarantine.
(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 condition warrants the participation of a family member to provide care during a period of treatment or supervision of the individual requiring care.
(2) The employer may require that the employee obtain subsequent recertification regarding the employee’s condition on a reasonable basis, in accordance with the procedure provided in paragraph (1).
(j) (1) An employer may require that an employee’s request for leave due to the employee’s own diagnosis with or quarantine because of the coronavirus (COVID-19) 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 coronavirus (COVID-19) diagnosis or quarantine was given.
(B) The probable duration of the condition or quarantine.
(C) A statement that, due to the employee’s condition or quarantine, 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 condition on a reasonable basis, in accordance with the procedure provided in paragraph (1).
(3) (A) In any case in which the employer has reason to doubt the validity of the certification provided by 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 neither be employed by nor contract with the employer on a regular basis.
(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 employee to 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 either of the following:
(1) An individual’s exercise of the right to leave provided by subdivision (a).
(2) An individual’s giving information or testimony as to the individual’s own family care and medical leave due to the coronavirus (COVID-19), or another person’s family care and medical leave due to the coronavirus (COVID-19), in any inquiry or proceeding related to rights guaranteed under this section.
(l) Leave granted pursuant to this section shall be separate and distinct from any leave that may be requested pursuant to the federal Family and Medical Leave Act of 1993 or Section 12945.2.
(m) 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.
(n) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

SECTION 1.Section 301 of the Business and Professions Code is amended to read:
301.

It is the intent of the Legislature and the purpose of this chapter to promote and protect the interests of the people as consumers. The Legislature finds that vigorous representation and protection of consumer interests are essential to the fair and efficient functioning of a free enterprise market economy. The Legislature declares that government advances the interests of consumers by facilitating the proper functioning of the free enterprise market economy through (a)educating and informing the consumer to insure rational consumer choice in the marketplace; (b)protecting the consumer from the sale of goods and services through the use of deceptive methods, acts, or practices that are inimical to the general welfare of consumers; (c)fostering competition; and (d)promoting effective representation of consumers’ interests in all branches and levels of government.