ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Sandre Swanson, Chair AB 2039 (Swanson) As Introduced: February 23, 2012

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1 Page 1 Date of Hearing: March 28, 2012 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Sandre Swanson, Chair AB 2039 (Swanson) As Introduced: February 23, 2012 SUBJECT: Family and medical leave. SUMMARY: Amends the California Family Rights Act (CFRA) to expand the definition of family member. Specifically, this bill: 1) Amends the definition of "child" to eliminate reference to the age and dependent status of the child. 2) Expands the scope of permissible family and medical leave to include leave to care for a sibling, grandparent, grandchild, or parent-in-law with a serious health condition. 3) Specifies that permissible leave includes leave to care for a domestic partner with a serious health condition. EXISTING LAW: 1) Establishes the CFRA, also known as the Moore-Brown-Roberti Family Rights Act. 2) Requires employers with 50 or more employees to provide covered employees, upon request, with up to 12 weeks of protected unpaid leave during any 12 month period for the following reasons: a) For the birth of a child or the placement of a child in connection with the adoption or placement in foster care of the child with the employee. b) To care for a parent, spouse or child with a serious health condition. c) Because of the employee's own serious health condition. 3) Defines "child" as a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in local parentis, who is either under the age of 18 or is an adult independent child. 4) Defines an "employer" as either any person who directly employs 50 or more persons to perform services for a wage or a salary, or the state and any political or civil subdivision of the state and cities. 5) Defines a "parent" as 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.

2 Page 2 6) Defines a "serious" health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a health care provider. 7) Requires an employee to provide the employer with reasonable advance notice of the need for the leave, if foreseeable. 8) Authorizes an employer to require that an employee request for leave for a serious health condition be certified by a health care provider, as specified, and that it subsequently may be recertified if additional leave is requested. 9) Establishes a process by whereby an employer may contest the validity of the certification of a serious health condition and obtain an ultimate determination that is final and binding on the employer and the employee. FISCAL EFFECT: Unknown COMMENTS: According to the author, the need for job-protected family care and medical leave is critical to workers' physical and emotional well-being, as workers who do not have job protection are presented with the untenable choice of caring for their family members or losing their job. The author notes that one of the shortcomings of CFRA is that the current definition of "family member" does not adequately reflect the reality of California's families in which siblings care for one another, grandchildren care for grandparents and parent care for adult children. A report by Eileen Appelbaum and Ruth Milkman, titled "Leaves that Pay", (LTP Report), does not specifically study unpaid leave, but addresses the general importance of workers having jobprotected leave. According to the LTP Report, the demand for time off from work to address family needs has grown rapidly as family and work patterns have shifted over recent decades. The LTP Report notes that the only major U.S. legislation to address these issues is the 1993 Family and Medical Leave Act (FMLA), which guarantees up to 12 weeks of job protected leave. However, FMLA's coverage is limited to only about half of all workers. According to the National Center for Children in Poverty, the prospect of lost wages often discourages low-wage workers from taking time off to care for a sick family member. The FMLA covers all public-sector workers and private sector workers who work for employers with 50 or more employees on the payroll or within 75 miles of the worksite. In addition, employees must work for at least 12 months and worked 1,250 hours or more for the same employer in the year preceding the leave. In addition to unpaid leave, SB 1661 (Kuehl), Chapter 901, Statutes of 2002, established the Paid Family Leave Program, also known as the Family Temporary Disability Insurance Program. This law guarantees California workers up to six weeks of paid family leave at 55% of their base pay. Deductions from eligible employee wages began on January 1, 2004, and benefits were made payable beginning July 1, Expanding the Definition of Child Existing state law defines a "child" as a biological, adopted or foster child, as stepchild, a legal ward or a child of a person standing in loco parentis, who is either under the age of 18 or is an

3 Page 3 adult dependent child. The regulations implementing the CFRA specify that an adult dependent child is "an individual who is 18 years of age or older and who is incapable of self-care because of a mental or physical disability (2 C.C. R (c)). This bill eliminates the reference to age and dependency status of a child. FMLA COMPARISON: The FMLA uses a definition of "son or daughter" that specifies that the individual must be either under the age of 18 or age 18 or older and "incapable of self-care because of a mental or physical disability" (29 C.F.R (c)), identical to the definition under the existing CFRA regulations. Expanding Coverage for Siblings, Grandparents, Grandchildren, and Parents-in-Law Existing state law defines "family and medical leave" to include leave to care for a parent, spouse or child with a serious health condition. The CFRA regulations specify that the term "spouse" means a partner in marriage as defined in the Family Code, Section 300 (2 C.C. R (p) ). Family Code Section 300 states that "[m]arriage is a personal relation arising out of a civil contract between a man and a woman". However, AB 205 (Goldberg), Chapter 421, Statues of 2003, added Section (a) to the Family Code as follows: "Registered domestic partners shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law are granted and imposed on spouses." On June 29, 2005, the California Supreme Court, without comment, let stand an earlier Court of Appeal decision upholding the validity of AB 205. That decision held that domestic partnership is not marriage, and that the voters did not intend to prohibit the Legislature from extending legal protections to domestic partners when they enacted Proposition 22 in Knight v. Superior Court, S This bill expands the coverage of existing law to include leave to care for a sibling, grandparent, grandchild or parent-in-law with a serious health condition, and specifies that the permissible leave includes domestic partners with a serious health condition. The bill provides that the term domestic partner has the same meaning as set forth in Section 297 of the Family Code, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." FMLA COMPARISON: The FMLA authorizes an employee to take leave to care for a spouse, son or daughter, or parent with a serious health condition. The federal regulation specifies that the term spouse means "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized" (29 C.F.R (a) ).

4 Page 4 Other State Family Leave Laws Several states and the District of Colombia have more expansive definitions of family in their family medical leave laws than California's current definition. Connecticut, Alaska, Oregon, Rhode Island, and Wisconsin all have family leave laws that include a spouse's parent (CT Gen. Stat. 31-5lkk (7); AL (f); OR Rev. State. 659.A.150; RI Gen. Laws ; Wis. Stat. Ann (1) (f). New Jersey's family leave law includes a spouse's parent and step-parent. The District of Columbia allows a leave to care for any person whom the employee is related by blood, legal custody or marriage (DC Code Ann ) while Hawaii allows leave to care for a child, parent, parent-in-law, spouse, reciprocal beneficiary, legal guardian, grandparent or grandparent-in-law (Haw. Rev. Stat ). Washington allows workers who have a sick leave to use it to care for a child, spouse, parent, parent in-law, or a grandparent with a serious health condition or emergency condition (WA Rev. Code ). Mississippi grants state employees the right to take leave to care for immediate family, including siblings, grandchildren, grandparents and in-laws (Miss. Code Ann (2)-(3)). ARGUMENTS IN SUPPORT: In support of this bill, the Legal Aid Society Employment Law Center (LAS-ELC) writes that the current CFRA has an overly narrow definition of family and therefore excludes many family members from the ability to provide care for their loved ones. LAS-ELC states that the restrictions on family caregiving in CFRA fail to account for the diversity of California households and the importance of caregiving by extended family members. In a letter of support, Health Access of California (HAC) writes that the California Work and Family Coalition estimates that over 40% of all workers in California cannot take time off when they or someone in their family is ill, negatively impacting family and community health. HAC writes that it is important to protect workers' ability to maintain family stability in times of economic instability, in whatever iteration of family is most appropriate. They state that this bill would make it possible for all California families to be protected with family and medical leave so that illness does not necessitate unemployment and financial insecurity. ARGUMENTS IN OPPOSITION: In a letter of opposition, the California Chamber of Commerce and a coalition of California business groups, including the California Retailers Association and the California Farm Bureau Federation, write that CFRA is already costly to employers. They state that expanding the types of individuals or circumstances under which an employee can take a leave of absence under CFRA would only further increase the cost of doing business for employers in California. Opponents write that the significant expansion proposed by this bill would create such a substantial burden on employers that it would discourage employers from growing to more than 50 employees in order to avoid triggering CFRA/FMLA or from locating to this state. Writing in opposition, the Southwest California Legislative Council (SWCLC) states that this bill would overburden California employers and create further disconnect with the federal Family and Medical Leave Act. SWCLC writes CFRA is already costly to employers and expanding the law would only further increase the cost of doing business in California.

5 Page 5 REGISTERED SUPPORT / OPPOSITION: Support 9to5 California, National Association of Working Women Alzheimer's Association American Federation of State, County and Municipal Employees Asian Communities for Reproductive Justice California Alliance of Retired Americans California Conference Board-Amalgamated Transit Union California Conference of Machinists California Employment Lawyers Association California Labor Federation, AFL-CIO California Nurses Association/National Nurses Organizing Committee California Rural Legal Assistance Foundation California School Employees Association California Teamsters Public Affairs Council California Women's Law Center Communications Workers of America Communications Workers of America, Local 9003 Disability Rights Education and Defense Fund Equal Rights Advocates Engineers and Scientists of California, IFPTE Local 20 Family Caregiver Alliance Health Access California International Longshore and Warehouse Union LAANE Labor Project for Working Families Los Angeles Caregiver Resource Center National Association of Social Workers, California Chapter National Council of La Raza Professional and Technical Engineers, IFPTE Local 21 Restaurant Opportunities Center of Los Angeles The Legal Aid Society Employment Law Center Unite-HERE United Food & Commercial Workers Western States Council Utility Workers Union Local 132 Opposition Associated General Contractors California Association of Bed & Breakfast Inns California Association of Health Facilities California Chamber of Commerce California Chapter of American Fence Association California Farm Bureau Federation California Fence Contractors' Association California Grocers Association California Hotel and Lodging Association

6 Page 6 California Independent Grocers Association California League of Food Processors California Manufacturers & Technology Association California Restaurant Association California Retailers Association Engineering Contractors' Association Flasher Barricade Association Marin Builders Association National Federation of Independent Business Orange County Business Council Southwest California Legislative Council Analysis Prepared by: Shannon McKinley / L. & E. / (916)

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