12945.2.
(a) It shall be an unlawful employment practice for any employer of 50 or more employees to refuse to grant a request by any employee with more than one year of continuous service with the employer, who meets all requirements of this section, and who is eligible for other benefits to take up to a total of four months in a 24-month period for family care leave. Family care 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) 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 any person who directly employs 50 or more persons to perform services for a wage or salary.
(3) “Family care leave” means either 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 of the child by the employee, or the serious illness of a child of the employee .
(B) Leave to care for a parent or a spouse who has a serious health condition.
(4) “Employment in the same or a comparable position” means employment in a position that has the same or similar duties and pay which can be performed at the same or similar geographic location as the position held prior to the leave.
(5) “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 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.
(6) “Parent” means a biological, foster, or adoptive parent, a stepparent, or a legal guardian.
(7) “Serious health condition” means an illness, injury, impairment, or physical or mental condition which warrants the participation of a family member to provide care during a period of the treatment or supervision and 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.
(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. However, an employee shall not use sick leave during the period of the family care leave unless mutually agreed to by the employer and the employee.
(e) Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in health plans, 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 family care. 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 group medical, 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.
(f) During a family care 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, or a parent 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), the employer may require the employee to obtain recertification in accordance with the procedure provided in paragraph (1), if additional leave is required.
(j) 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 leave provided by subdivision (a).
(2) An individual’s giving information or testimony as to his or her own family care leave, or another person’s family care leave, in any inquiry or proceeding related to rights guaranteed under this section.
(k) 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.
( l) The provisions of this section shall be construed as separate and distinct from those of Section 12945. However, leave taken pursuant to this section shall be no more than one month when used in conjunction with the maximum leave under Section 12945, unless the employer and employee agree otherwise.
(m) This section shall not entitle the employee to receive disability benefits under Part 1 (commencing with Section 3200) of Division 4 of the Labor Code.
(n) Leave provided for pursuant to this section may be taken in one or more periods but shall not exceed a total of four months within a 24-month period from the date the leave commenced unless otherwise agreed to by the employee and the employer.
(o) An employer shall not be required to grant an employee family care leave which would allow the employee and the other parent of the child family care leave totaling more than the amount specified in subdivision (a), nor to grant an employee family care leave for any period of time in which the child’s other parent is also taking family care leave from employment or is unemployed.
(p) Notwithstanding subdivision (a), an employer may refuse to grant a request for family care leave made by an employee if this refusal is necessary to prevent undue hardship to the employer’s operations.
(q) Notwithstanding subdivision (a), an employer may refuse to grant a request for family care leave made by a salaried employee who, on the date the request for family care leave is made, is either one of the five highest paid employees, or is among the top 10 percent of the employees in terms of gross salary, whichever group encompasses the greater number of persons, employed by the employer at the same location.