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AB-3216 Unemployment: rehiring and retention: state of emergency.(2019-2020)



Current Version: 09/04/20 - Enrolled         Compare Versions information image


SEC. 5. SECTION 1. 

 Section 2810.8 is added to the Labor Code, to read:

2810.8.
 (a) For purposes of this section:
(1) “Airport” means as any area of land or water used or intended for landing or takeoff of aircraft including appurtenant area used or intended for airport buildings, facilities, as well as rights of way together with the buildings and facilities within the State of California, excluding any military base or federally operated facility.
(2) “Airport hospitality operation” means a business that prepares, delivers, inspects, or provides any other service in connection with the preparation of, food or beverage for aircraft crew or passengers at an airport, or that provides food and beverage, retail, or other consumer goods or services to the public at an airport. The term airport hospitality operation does not include an air carrier certificated by the Federal Aviation Administration.
(3) “Airport service provider” means a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, assistance to passengers under Part 382 (commencing with Section 382.1) of Title 14 of the Code of Federal Regulations, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal. The term “airport service provider” does not include an air carrier certificated by the Federal Aviation Administration.
(3) (4)  “Building service” means janitorial, building maintenance, or security services.
(4) (5)  “Change in control” means any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets used in the operation of an enterprise or a discrete portion of the enterprise that continues in operation as an enterprise, or a controlling interest, including by consolidation, merger, or reorganization, of the incumbent employer or any person who controls the incumbent employer.
(5) (6)  “Eligible employee” means any individual (A) whose primary place of employment is at an enterprise subject to a change in control, (B) who is employed directly by the incumbent employer, or by an employer who has contracted with the incumbent employer to provide services at the enterprise subject to a change in control, and (C) who has worked for the incumbent employer for at least one month prior to the execution of the transfer document. “Eligible employee” does not include a managerial, supervisory, or confidential employee.
(6) (7)  “Employee” means any individual who in a particular week performs at least two hours of work for an employer.
(7) (8)  “Employer” means any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, owns or operates an enterprise and employs or exercises control over the wages, hours, or working conditions of any employee.
(8) (9)  “Employment commencement date” means the date on which an eligible employee retained by the successor employer pursuant to this section commences work for the successor employer in exchange for benefits and compensation under the terms and conditions established by the successor employer or as required by law.
(9) (10)  “Enterprise” means a hotel, private club,  event center, airport hospitality operation, airport service provider,  or the provision of building service to office, retail, or other commercial buildings.
(10) (11)  “Event center” means a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
(11) (12)  “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building. The number of guest rooms, or suites of rooms, shall be calculated based on the room count on the opening of the hotel or on December 31, 2019, whichever is greater.
(12) (13)  “Incumbent employer” means a person that owns, controls, or operates an enterprise subject to a change in control prior to the change in control.
(13) (14)  “Laid-off employee” means any employee who was employed by the employer for 6 months or more in the 12 months preceding the state of emergency giving rise to the application of this section, and whose most recent separation from active service was due to a public health directive, government shutdown order, lack of business, a reduction in force force,  or other, other  economic, nondisciplinary reason related to the state of emergency.
(14) (15)  “Length of service” means the total of all periods of time during which an employee has been in active service with the employer, including periods of time when the employee was on leave or on vacation.
(15) (16)  “Person” means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
(17) “Private club” means a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members. The number of guest rooms or suites of rooms shall be calculated based on the room count on the opening of the private club or on December 31, 2019, whichever is greater.
(16) (18)  “Public health emergency” means a health-related emergency declared by a local, state, or federal authority.
(17) (19)  “State of emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state or within the territorial limits of a county, city and county, or city that was declared by the Governor pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code). “State of emergency” includes a public health emergency as defined in paragraph (16).
(18) (20)  “Successor employer” means a person that owns, controls, or operates an enterprise subject to a change in control after the change in control.
(19) (21)  “Transfer document” means the purchase agreement or other documents creating a binding agreement to effect the change in control.
(b) (1) An employer shall offer its laid-off employees in writing, to their last known physical address, and by email and text message to the extent the employer possesses such information, all job positions that become available after the effective date of this section for which the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee either:
(A) Held the same or similar position at the enterprise at the time of the employee’s most recent separation from active service with the employer.
(B) Is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.
(2) The employer shall offer positions to laid-off employees in an order of preference corresponding to subparagraphs (A) and (B) of paragraph (1). If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service for the enterprise.
(3) A laid-off employee who is offered a position pursuant to this section shall be given at least 10 five  business days in which to accept or decline the offer. A “business day” is any day except Saturday, Sunday, or any official state holiday. An employer may make simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the priority system set forth in paragraph (2). 
(4) An employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee shall provide the laid-off employee a written notice within 30 days identifying those hired in lieu of that recall, along with all reasons for the decision.
(5) This section also applies in any of the following circumstances:
(A) The ownership of the employer changed after the separation from employment of a laid-off employee but the enterprise is conducting the same or similar operations as before the state of emergency.
(B) The form of organization of the employer changed after the state of emergency.
(C) Substantially all of the assets of the employer were acquired by another entity which conducts the same or similar operations using substantially the same assets.
(D) The employer relocates the operations at which a laid-off employee was employed before the state of emergency to a different location.
(c) (1) (A) The incumbent employer shall, within 15 days after the execution of a transfer document, provide to the successor employer the name, address, date of hire, and employment occupation classification of each eligible employee.
(B) The successor employer shall maintain a preferential hiring list of eligible employees identified by the incumbent employer as set forth in subparagraph (A), and shall be required to hire from that list for a period beginning upon the execution of the transfer document and continuing for six months after the enterprise is open to the public under the successor employer.
(C) If the successor employer extends an offer of employment to an eligible employee, the successor employer shall retain written verification of that offer for at least three years from the date the offer was made. The verification shall include the name, address, date of hire, and employment occupation classification of each eligible employee.
(2) (A) A successor employer shall retain each eligible employee hired pursuant to this subdivision for no fewer than 90 days following the eligible employee’s employment commencement date. During this 90-day transition employment period, eligible employees shall be employed under the terms and conditions established by the successor employer or as required by law. The successor employer shall provide eligible employees with a written offer of employment. This offer shall remain open for at least 10 five  business days from the date of the offer. A successor employer may make simultaneous, conditional offers of employment to eligible employees, with a final offer of employment conditioned on application of the priority system set forth in subparagraph (B). 
(B) If, within the period established in subparagraph (B) of paragraph (1) of subdivision (c), the successor employer determines that it requires fewer eligible employees than were required by the incumbent employer, the successor employer shall retain eligible employees by seniority within each job classification to the extent that comparable job classifications exist.
(C) During the 90-day transition employment period, the successor employer shall not discharge without cause an eligible employee retained pursuant to this subdivision.
(D) At the end of the 90-day transition employment period, the successor employer shall perform a written performance evaluation for each eligible employee retained pursuant to this section. If the eligible employee’s performance during the 90-day transition employment period is satisfactory, the successor employer shall consider offering the eligible employee continued employment under the terms and conditions established by the successor employer or as required by law. The successor employer shall retain a record of the written performance evaluation for a period of no fewer than three years.
(3) (A) The incumbent employer shall post written notice of the change in control at the location of the affected enterprise within five business days following the execution of the transfer document. Notice shall remain posted during any closure of the enterprise and for six months after the enterprise is open to the public under the successor employer.
(B) Notice shall include, but not be limited to, the name of the incumbent employer and its contact information, the name of the successor employer and its contact information, and the effective date of the change in control.
(C) Notice shall be posted in a conspicuous place at the enterprise so as to be readily viewed by eligible employees, other employees, and applicants for employment.
(d) No employer shall refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any person for seeking to enforce their rights under this section by any lawful means, for participating in proceedings related to this section, opposing any practice proscribed by this section, or otherwise asserting rights under this section. This subdivision shall also apply to any employee who mistakenly, but in good faith, alleges noncompliance with this section.
(e) This section may be enforced as follows:
(1) An employee, including any eligible employee, may file a complaint with the Division of Labor Standards Enforcement or bring an action in the Superior Court of the State of California  against the employer, or in the case of a violation of subdivision (c), incumbent employer or the successor employer, for violations of this section and may be awarded any or all of the following, as appropriate:
(A) Hiring and reinstatement rights pursuant to this section, with the 90-day transition employment period not commencing until the eligible employee’s employment commencement date with the successor employer.
(B) Front pay or back pay for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the highest of any of the following rates:
(i) The average regular rate of pay received by the employee or eligible employee during the last three years of that employee’s employment in the same occupation classification.
(ii) The most recent regular rate received by the employee or eligible employee while employed by the employer, incumbent employer, or the successor employer.
(iii) The regular rate received by the individual in the position during the time that the employee or eligible employee should have been employed.
(C) Value of the benefits the employee or eligible employee would have received under the employer or successor employer’s benefit plan.
(2) Any complaint filed with the division shall be investigated as provided in subdivision (b) of Section 98.7.
(3) If an employee or eligible employee is the prevailing party in any legal action taken pursuant to this section, the court shall award reasonable attorney’s fees and costs as part of the overall costs recoverable.
(4) (3)  No criminal penalties shall be imposed for violation of this section.
(f) The Division of Labor Standards Enforcement may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this article. Those rules and regulations, determinations and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this section.
(g) Nothing in this section shall prohibit a local government agency from enacting ordinances that impose greater standards than, or establish additional enforcement provisions to, those prescribed by this section. This section shall not be construed to limit a discharged employee or eligible employee’s right to bring a common law cause of action for wrongful termination.
(h) All of the provisions of this section, or any part of this section, may be waived in a valid collective bargaining agreement, but only if the waiver is explicitly set forth in that agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute or be permitted as a waiver of all or any part of the provisions of this section.
(i) The provisions of this section are severable. If any provision of this section 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.

SECTION 1.

 Section 12945.2 of the Government Code is amended to read:

12945.2.
 (a)  Except as provided in subdivision (b), itshall be an unlawful employment practice for any an employer, as defined in paragraph (2) of subdivision (c), 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 (v), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.
(b) Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed.
(c) For purposes of this section:
(1) “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or the child of a person standing in loco parentis who is either of the following:
(A) Under 18 years of age.
(B) An adult dependent child.
(2) “Employer” means either of the following:
(A) Any person who directly employs 50 or more 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 or a spouse 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 care for a child, a parent, or a spouse for whom the employee is responsible for providing care if such family member’s school or place of care has been closed, or the care provider of such family member is unavailable, due to a state of emergency.
(E) Leave because of an employee’s inability to work or telework due to a state of emergency involving any of the following circumstances:
(i) Being subject to a federal, state, or local quarantine or isolation order, including a shelter-in-place or stay-at-home order.
(ii) Being advised to self-quarantine by a health care provider due to exposure to the disease that is the subject of the state of emergency.
(iii) Experiencing symptoms of the disease that is the subject of the state of emergency and seeking a diagnosis.
(iv) Being a member of a vulnerable population at high risk of severe illness from the disease that is the subject of the state of emergency according to the Centers for Disease Control and Prevention.
(v) Living with or being responsible for providing care for a family member who is a member of a vulnerable population and is at high risk of severe illness from the disease that is the subject of the state of emergency according to the Centers for Disease Control and Prevention.
(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) “Public health emergency” means a health-related emergency declared by a local, state, or federal authority.
(9) “State of emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state or within the territorial limits of a county, city and county, or city that was declared by the Governor pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1). State of emergency includes a public health emergency as defined in subparagraph (8).
(10) “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A) Inpatient care in a hospital, hospice, or residential health care facility.
(B) Continuing treatment or continuing supervision by a health care provider.
(d) An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e) or by any other provision of state or federal law.
(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 a leave because of the employee’s own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.
(f) (1) During 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 12 workweeks in a 12-month period, commencing on the date leave taken under the FMLA commences, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in the preceding sentence shall preclude an employer from maintaining and paying for coverage under a “group health plan” beyond 12 workweeks. An employer may recover the premium that the employer paid as required by this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(A) The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(B) The employee’s failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subdivision (a) or other circumstances beyond the control of the employee.
(2) 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.
(g) During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under 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.
(h) If the employee’s need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
(i) If the employee’s need for leave pursuant to this section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.
(j) (1) An employer may require that an employee’s request for leave to care for a child, 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) of paragraph (1), the employer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
(k) (1) An employer may require that an employee’s request for leave because of the employee’s own serious health condition be supported by a certification issued by 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.
(l) Notwithstanding subdivision (j) or (k), an employer shall not require a certification from a health care provider if the employee takes emergency leave due to a state of emergency and obtaining medical certification is not feasible. An employer may require a self-certification or attestation by the employee that the leave taken is due to the state of emergency and that obtaining medical certification is not feasible.
(m) 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.
(n) 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.
(o) 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.
(p) This section shall be construed as separate and distinct from Section 12945.
(q) Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.
(r) 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).
(s) (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).
(t) Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, 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.
(u) 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.
(v) (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.

SEC. 2.

 Section 245.5 of the Labor Code is amended to read:

245.5.
 As used in this article:
(a) Except for paid sick leave provided pursuant to subdivision (r) of Section 246, “employee” does not include the following:
(1) An employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.
(2) An employee in the construction industry covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms. For purposes of this subparagraph, “employee in the construction industry” means an employee performing work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work, and any other work as described by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and other similar or related occupations or trades.
(3) An individual employed by an air carrier as a flight deck or cabin crew member that is subject to the provisions of Title II of the federal Railway Labor Act (45 U.S.C. Sec. 151 et seq.), provided that the individual is provided with compensated time off equal to or exceeding the amount established in paragraph (1) of subdivision (b) of Section 246.
(4) An employee of the state, city, county, city and county, district, or any other public entity who is a recipient of a retirement allowance and employed without reinstatement into the employee’s respective retirement system pursuant to either Article 8 (commencing with Section 21220) of Chapter 12 of Part 3 of Division 5 of Title 2 of the Government Code, or Article 8 (commencing with Section 31680) of Chapter 3 of Part 3 of Division 4 of Title 3 of the Government Code.
(b) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.
(c) “Family member” means any of the following:
(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
(3) A spouse.
(4) A registered domestic partner.
(5) A grandparent.
(6) A grandchild.
(7) A sibling.
(d) “Health care provider” has the same meaning as defined in paragraph (6) of subdivision (c) of Section 12945.2 of the Government Code.
(e) “Paid sick days” means time that is compensated at the same wage as the employee normally earns during regular work hours and is provided by an employer to an employee for the purposes described in Section 246.5.
(f) “Public health emergency” means a health-related emergency declared by a local, state, or federal authority.
(g) “State of emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state or within the territorial limits of a county, city and county, or city that was declared by the Governor pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1). State of emergency includes a public health emergency as defined in subdivision (f).

SEC. 3.

 Section 246 of the Labor Code is amended to read:

246.
 (a) (1) An employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days as specified in this section.
(2) On and after July 1, 2018, a provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare and Institutions Code, who works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days as specified in subdivision (e) and subject to the rate of accrual in paragraph (1) of subdivision (b).
(b) (1) An employee shall accrue paid sick days at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this article, whichever is later, subject to the use and accrual limitations set forth in this section.
(2) An employee who is exempt from overtime requirements as an administrative, executive, or professional employee under a wage order of the Industrial Welfare Commission is deemed to work 40 hours per workweek for the purposes of this section, unless the employee’s normal workweek is less than 40 hours, in which case the employee shall accrue paid sick days based upon that normal workweek.
(3) An employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.
(4) An employer may satisfy the accrual requirements of this section by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of the employee’s 120th calendar day of employment.
(c) An employee shall be entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.
(d) Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of accrued paid sick days to 24 hours or three days in each year of employment, calendar year, or 12-month period. This section shall be satisfied and no accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. The term “full amount of leave” means three days or 24 hours.
(e) For a provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare and Institutions Code, the term “full amount of leave” is defined as follows:
(1) Eight hours or one day in each year of employment, calendar year, or 12-month period beginning July 1, 2018.
(2) Sixteen hours or two days in each year of employment, calendar year, or 12-month period beginning when the minimum wage, as set forth in paragraph (1) of subdivision (b) of Section 1182.12 and accounting for any years postponed under subparagraph (D) of paragraph (3) of subdivision (d) of Section 1182.12, has reached thirteen dollars ($13) per hour.
(3) Twenty-four hours or three days in each year of employment, calendar year, or 12-month period beginning when the minimum wage, as set forth in paragraph (1) of subdivision (b) of Section 1182.12 and accounting for any years postponed under subparagraph (D) of paragraph (3) of subdivision (d) of Section 1182.12, has reached fifteen dollars ($15) per hour.
(f) An employer is not required to provide additional paid sick days pursuant to this section if the employer has a paid leave policy or paid time off policy, the employer makes available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified in this section, and the policy satisfies one of the following:
(1) Satisfies the accrual, carryover, and use requirements of this section.
(2) Provided paid sick leave or paid time off to a class of employees before January 1, 2015, pursuant to a sick leave policy or paid time off policy that used an accrual method different than providing one hour per 30 hours worked, provided that the accrual is on a regular basis so that an employee, including an employee hired into that class after January 1, 2015, has no less than one day or eight hours of accrued sick leave or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment. If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer shall comply with any accrual method set forth in subdivision (b) or provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period. This section does not prohibit the employer from increasing the accrual amount or rate for a class of employees covered by this subdivision.
(3) Notwithstanding any other law, sick leave benefits provided pursuant to the provisions of Sections 19859 to 19868.3, inclusive, of the Government Code, or annual leave benefits provided pursuant to the provisions of Sections 19858.3 to 19858.7, inclusive, of the Government Code, or by provisions of a memorandum of understanding reached pursuant to Section 3517.5 that incorporate or supersede provisions of Section 19859 to 19868.3, inclusive, or Sections 19858.3 to 19858.7, inclusive of the Government Code, meet the requirements of this section.
(g) (1) Except as specified in paragraph (2), an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
(2) If an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days shall be reinstated. The employee shall be entitled to use those previously accrued and unused paid sick days and to accrue additional paid sick days upon rehiring, subject to the use and accrual limitations set forth in this section. An employer is not required to reinstate accrued paid time off to an employee that was paid out at the time of termination, resignation, or separation of employment.
(h) An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.
(i) An employer shall provide an employee with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement described in Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages. If an employer provides unlimited paid sick leave or unlimited paid time off to an employee, the employer may satisfy this section by indicating on the notice or the employee’s itemized wage statement “unlimited.” The penalties described in this article for a violation of this subdivision shall be in lieu of the penalties for a violation of Section 226. This subdivision shall apply to employers covered by Wage Order 11 or 12 of the Industrial Welfare Commission only on and after January 21, 2016.
(j) An employer has no obligation under this section to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave are not limited other than as allowed under this section.
(k) An employee may determine how much paid sick leave they need to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
(l) For the purposes of this section, an employer shall calculate paid sick leave using any of the following calculations:
(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.
(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
(m) If the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.
(n) An employer shall provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken.
(o) The State Department of Social Services, in consultation with stakeholders, shall convene a workgroup to implement paid sick leave for in-home supportive services providers as specified in this section. This workgroup shall finish its implementation work by November 1, 2017, and the State Department of Social Services shall issue guidance such as an all-county letter or similar instructions by December 1, 2017.
(p) No later than February 1, 2019, the State Department of Social Services, in consultation with the Department of Finance and stakeholders, shall reconvene the paid sick leave workgroup for in-home supportive services providers. The workgroup shall discuss how paid sick leave affects the provision of in-home supportive services. The workgroup shall consider the potential need for a process to cover an in-home supportive services recipient’s authorized hours when a provider needs to utilize their sick time. This workgroup shall finish its work by November 1, 2019.
(q) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Social Services may implement, interpret, or make specific this section by means of an all-county letter, or similar instructions, without taking any regulatory action.
(r) (1) Notwithstanding any other law, including, but not limited to, any other subdivision in this section, in the case of a public health emergency, an employer shall provide each employee with at least 56 hours or seven days of paid sick leave, or for part-time workers an amount that is equivalent to the amount of time they regularly work or are scheduled to work for seven work days regardless of hours worked or tenure with the employer, to use for any purpose pursuant to Section 246.5 relating to a state of emergency. This paid sick leave shall be available immediately. A provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare and Institutions Code is entitled to paid sick days pursuant to this subdivision.
(2) Nothing in this section shall prohibit a local government agency from enacting ordinances that impose greater standards than those prescribed by this subdivision.
(3) Paid sick days under this subdivision shall run concurrently with any paid sick leave available under local or federal law.
(s) An employer shall not require a certification from the employee’s health care provider if the paid sick leave is taken due to a state of emergency. An employer may require that within a reasonable time an employee shall provide a self-certification that the request for leave is related to a state of emergency.

SEC. 4.

 Section 246.5 of the Labor Code is amended to read:

246.5.
 (a) Upon the oral or written request of an employee, an employer shall provide paid sick days for the following purposes:
(1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
(2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.
(3) For an employee who is subject to a federal, state, or local public health order related to a public health emergency, including an employee who has been told to remain at home because they are in a high-risk population.
(4) For an employee to care for a family member subject to an order described in paragraph (3).
(5) For an employee to care for a child or family member for whom the employee is responsible for providing care if the child or family member’s school or place of care has been closed, or the child or family member’s care provider is unavailable, due to a state of emergency.
(6) For an employee whose place of employment is closed by the employer or by a public health official due to a state of emergency.
(7) For an employee who is subject to a federal, state, or local evacuation order related to a state of emergency.
(b) An employer shall not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.
(c) (1) An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.
(2) There shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of any of the following:
(A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this article.
(B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this article.
(C) Opposition by the employee to a policy, practice, or act that is prohibited by this article.

SEC. 6.

 Section 2708 of the Unemployment Insurance Code is amended to read:

2708.
 (a) (1) In accordance with the director’s authorized regulations, and except as provided in subdivision (c) and Sections 2708.1 and 2709, a claimant shall establish medical eligibility for each uninterrupted period of disability by filing a first claim for disability benefits supported by the certificate of a treating physician or practitioner that establishes the sickness, injury, or pregnancy of the employee, or the condition of the family member that warrants the care of the employee. For subsequent periods of uninterrupted disability after the period covered by the initial certificate or any preceding continued claim, a claimant shall file a continued claim for those benefits supported by the certificate of a treating physician or practitioner. A certificate filed to establish medical eligibility for the employee’s own sickness, injury, or pregnancy shall contain a diagnosis and diagnostic code prescribed in the International Classification of Diseases, or, if no diagnosis has yet been obtained, a detailed statement of symptoms.
(2) A certificate filed to establish medical eligibility of the employee’s own sickness, injury, or pregnancy shall also contain a statement of medical facts, including secondary diagnoses when applicable, within the physician’s or practitioner’s knowledge, based on a physical examination and a documented medical history of the claimant by the physician or practitioner, indicating the physician’s or practitioner’s conclusion as to the claimant’s disability, and a statement of the physician’s or practitioner’s opinion as to the expected duration of the disability.
(b) An employee shall be required to file a certificate to establish eligibility when taking leave to care for a family member with a serious health condition. The certificate shall be developed by the department. In order to establish medical eligibility of the serious health condition of the family member that warrants the care of the employee, the information shall be within the physician’s or practitioner’s knowledge and shall be based on a physical examination and documented medical history of the family member and shall contain all of the following:
(1) A diagnosis and diagnostic code prescribed in the International Classification of Diseases, or, if no diagnosis has yet been obtained, a detailed statement of symptoms.
(2) The date, if known, on which the condition commenced.
(3) The probable duration of the condition.
(4) An estimate of the amount of time that the physician or practitioner believes the employee needs to care for the child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.
(5) (A) A statement that the serious health condition warrants the participation of the employee to provide care for the employee’s child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.
(B) “Warrants the participation of the employee” includes, but is not limited to, providing psychological comfort, and arranging “third party” care for the child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, as well as directly providing, or participating in, the medical care.
(c) The department shall develop a certification form for bonding that is separate and distinct from the certificate required in subdivision (a) for an employee taking leave to bond with a minor child within the first year of the child’s birth or placement in connection with foster care or adoption.
(d) The first and any continuing claim of an individual who obtains care and treatment outside this state shall be supported by a certificate of a treating physician or practitioner duly licensed or certified by the state or foreign country in which the claimant is receiving the care and treatment. If a physician or practitioner licensed by and practicing in a foreign country is under investigation by the department for filing false claims and the department does not have legal remedies to conduct a criminal investigation or prosecution in that country, the department may suspend the processing of all further certifications until the physician or practitioner fully cooperates, and continues to cooperate, with the investigation. A physician or practitioner licensed by, and practicing in, a foreign country who has been convicted of filing false claims with the department may not file a certificate in support of a claim for disability benefits for a period of five years.
(e) Notwithstanding subdivisions (a) and (b), in the case of a state of emergency, no certificate shall be required, but in lieu thereof the director may accept the self-certification of the claimant certifying all of the following:
(1) The disability of the claimant or the serious health condition of the family member that warrants the care of the claimant, for purposes of Chapter 7 (commencing with Section 3300) of Part 2, is related to the state of emergency.
(2) Obtaining a certificate is not feasible due to the state of emergency.
(3) The estimated duration of that disability or serious health condition.
(f) For purposes of this part:
(1) “Physician” has the same meaning as defined in Section 3209.3 of the Labor Code.
(2) (A) “Practitioner” means a person duly licensed or certified in California acting within the scope of their license or certification who is a dentist, podiatrist, or a nurse practitioner, and in the case of a nurse practitioner, after performance of a physical examination by a nurse practitioner and collaboration with a physician and surgeon, or as to normal pregnancy or childbirth, a midwife or nurse midwife, or nurse practitioner.
(B) “Practitioner” also means a physician assistant who has performed a physical examination under the supervision of a physician and surgeon. Funds appropriated to cover the costs required to implement this subparagraph shall come from the Unemployment Compensation Disability Fund. This subparagraph shall be implemented on or before January 1, 2017.
(3) “State of emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state or within the territorial limits of a county, city and county, or city that was declared by the Governor pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code). State of emergency includes a public health emergency.
(g) For a claimant who is hospitalized in or under the authority of a county hospital in this state, a certificate of initial and continuing medical disability, if any, shall satisfy the requirements of this section if the disability is shown by the claimant’s hospital chart, and the certificate is signed by the hospital’s registrar. For a claimant hospitalized in or under the care of a medical facility of the United States government, a certificate of initial and continuing medical disability, if any, shall satisfy the requirements of this section if the disability is shown by the claimant’s hospital chart, and the certificate is signed by a medical officer of the facility duly authorized to do so.
(h) Nothing in this section shall be construed to preclude the department from requesting additional medical evidence to supplement the first or any continued claim if the additional evidence can be procured without additional cost to the claimant. The department may require that the additional evidence include any or all of the following:
(1) Identification of diagnoses.
(2) Identification of symptoms.
(3) A statement setting forth the facts of the claimant’s disability. The statement shall be completed by any of the following individuals:
(A) The physician or practitioner treating the claimant.
(B) The registrar, authorized medical officer, or other duly authorized official of the hospital or health facility treating the claimant.
(C) An examining physician or other representative of the department.
(i) This section shall become operative on July 1, 2014.
SEC. 7.
 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.