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AB-77 Fair employment and housing: family care leave and discrimination.(1991-1992)



Current Version: 10/01/91 - Chaptered

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AB77:v94#DOCUMENT

Assembly Bill No. 77
CHAPTER 462

An act to add Sections 12945.2 and 19702.3 to the Government Code, relating to employment.

[ Filed with Secretary of State  October 01, 1991. Approved by Governor  September 30, 1991. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 77, Moore. Fair employment and housing: family care leave and discrimination.
Existing law prohibits discrimination in employment on the basis of several enumerated factors.
This bill would make certain legislative findings and declarations regarding the need for leave from employment for care of children and elders.
This bill would make it an unlawful employment practice for any employer, as defined, who employs 50 or more employees to refuse to grant a request by any employee with more than one year of continuous service with the employer and who is eligible for other benefits to take up to a total of 4 months in a 24-month period for an unpaid family care leave, as defined, except that the employee may elect, or the employer may require the employee to substitute, accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. It would, however, prohibit an employee from using sick leave during the period of the family care leave unless mutually agreed to by the employer and the employee.
This bill would provide that an employee would continue to be eligible for health plans, retirement and pension plans, and supplemental unemployment benefit plans during the period of the leave to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than family care, except that an employer may require the employee to pay employee health and welfare benefit plan premiums during the period of leave.
This bill would allow an employee taking a family care leave to have the period of the leave treated as time served with the employer for specified purposes.
This bill would require that if the employee’s need for a leave is foreseeable, as specified, the employee provide reasonable notice to the employer, and if the leave is foreseeable due to a planned medical treatment or supervision, the employee make reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, as specified.
This bill would provide that an employer may require that a request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification, as specified, issued by a health care provider, as defined.
This bill would also make it an unlawful employment practice 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.
(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 the bill.
This bill would provide that the above provisions 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.
This bill would provide that 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 a specified amount, 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.
This bill would permit an employer to 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, or the request is made by a salaried employee who, on the date the request for family care leave is made, is either one of the 5 highest paid employees, or is among the top 10% of the employees in terms of gross salary, whichever group encompasses the greater number of persons, employed by the employer at the same location.
This bill would also require the Fair Employment and Housing Commission to consider specified factors in adopting regulations concerning family care leaves.
Existing law prohibits discrimination against state civil service employees or employee applicants, on the basis of sex, race, religion, creed, color, national origin, ancestry, marital status, or physical handicap.
This bill would additionally prohibit an appointing power from refusing to hire, or from discharging, suspending, expelling, or discriminating against, any individual because of, among other things, an individual’s right to family care leave.
This bill would require the Legislative Analyst, in consultation with the Secretary of Business, Transportation and Housing, to report to the Governor and the Legislature on the impact of this bill upon employers, as specified.

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


SECTION 1.

 This act shall be known, and may be cited as, the Family Rights Act of 1991.

SEC. 2.

 The Legislature finds and declares all of the following:
(a)  The United States is the only industrialized country that does not have a mandated policy on child care leave.
(b)  There is a shortage of out-of-home child care, particularly for infants.
(c)  More than 60 percent of the women of childbearing age in the United States are in the work force and 40 percent of these women have children under three years of age.
(d)  Because of the changing roles of men and women in the work force and the family, and the need to promote stability and economic security in families, both men and women should have the option of taking leave for child-rearing purposes.
(e)  Close contact between parent and child is in the best interest of the child, particularly during the child’s infancy and early years, and this contact promotes family stability.

SEC. 3.

 The Legislature further finds and declares all of the following:
(a)  The percentage of adults who care for their parents due to physical and mental disabilities is growing. Surveys indicate that about one-quarter of all workers must provide elder care support, and that 64 percent of senior Californians live with relatives.
(b)  Independent living situations are generally preferable to institutionalization as physical caretaking and emotional support are best performed by families.
(c)  The current trends towards home care, while providing for the health and well-being of families, adds to the tension between work demands and family needs.
(d)  Due to a lack of available and affordable care for elder persons, particularly in rural areas, and limited alternative housing arrangements, there is a need for care to be provided for elder persons by family members.
(e)  In the past, care for aged parents was provided principally by daughters. Today, a majority of women are in the work force and jeopardize their employment and career opportunities to provide this care.
(f)  The state, like the rest of the country, is experiencing dramatic demographic changes. Among the most significant of these changes is the growing number of elderly in our society. On the national level, more than 2.2 million family members provide unpaid help to ailing relatives, the most common caregivers being a child or spouse. About 38 percent of those caring for elderly relatives are children, and 35 percent are spouses.
(g)  One-fifth of Americans 65 years of age and older must receive home care or be confined to hospitals or nursing homes. Facilitating care for them at home can present economic savings to the health system, seniors, care givers, and employers.
(h)  The need for elder care is expected to increase as the demographic trends indicate an increasingly aging society.

SEC. 4.

 Section 12945.2 is added to the Government Code, to read:

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.

SEC. 5.

 Section 19702.3 is added to the Government Code, to read:

19702.3.
 (a)  An appointing authority shall not refuse to hire, and shall not discharge, 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) of Section 12945.2.
(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 Section 12945.2.
(b)  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.
(c)  An appointing authority’s obligation to provide family care leave, other than for birth or adoption of a child, resulting in costs incurred by the state shall be contingent upon provision in the annual Budget Act.

SEC. 6.

 In adopting the regulations required by Section 12945.2 of the Government Code, as contained in Section 4 of this act, the Fair Employment and Housing Commission shall consider and specify all of the following:
(a)  The length of time necessary for appropriate advance notice for a leave request submitted pursuant to subdivision (a) of Section 12945.2 of the Government Code.
(b)  The appropriate minimum duration of family care leave. This paragraph shall not be construed as permitting an employer to deny a reasonable family care leave request for a period in excess of the appropriate minimum duration for family care leaves.
(c)  What would constitute undue hardship for denial or deferral of family care leave.
(d)  What accommodation of the employee’s family care rights short of granting a leave would be reasonable.

SEC. 7.

 Within two years of the effective date of this act, the Legislative Analyst, in consultation with the Secretary of the Business, Transportation and Housing Agency, shall report to the Governor and the Legislature on the impact, if any, of the requirements of this act, including the costs, benefits, and impact on productivity, of family care leave on employers.

SEC. 8.

 It is the intent of the Legislature that this act shall not affect any rights of state employees under Section 19991.6 of the Government Code or Section 89519 of the Education Code.