Bill Text: CA AB3216 | 2019-2020 | Regular Session | Amended
Bill Title: Unemployment: rehiring and retention: state of emergency.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Vetoed) 2020-09-30 - Vetoed by Governor. [AB3216 Detail]
Download: California-2019-AB3216-Amended.html
Amended
IN
Assembly
June 04, 2020 |
Amended
IN
Assembly
May 12, 2020 |
Amended
IN
Assembly
March 12, 2020 |
Introduced by Assembly Members Kalra and Gonzalez (Principal coauthor: Assembly Member Bonta) (Principal coauthor: Senator Durazo) (Coauthors: Assembly Members Carrillo, Chiu, Jones-Sawyer, McCarty, Reyes, Robert Rivas, Mark Stone, Ting, and Wicks) |
February 21, 2020 |
LEGISLATIVE COUNSEL'S DIGEST
Existing law, the New Parent Leave Act, makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child. The act applies to an employee who has more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a worksite in which the employer employs at least 20 employees within 75 miles.
This bill would revise and recast these provisions to make it an unlawful employment practice for any employer to refuse grant a request by an employee, with qualified employment service, to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave, including birth of the employee’s child or adoption, to care for the employee’s own medical condition, or for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, as specified. The bill would also make it an unlawful business practice for an employer to refuse to grant an employee up to 12 workweeks of leave in a 12-month period for emergency leave, as defined. The bill would also delete the exception specifying that it is not an unlawful employment practice for an employee 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 the
employee is employed.
The
(2)Existing law prohibits an employer from refusing to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable time of up to 4 months before returning to work. Existing law also prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes that leave, as specified.
This bill would specify that these provisions apply to employers with one or more employees.
(3)
(4)
Existing law establishes, within the state disability insurance program, a family temporary disability insurance
program, also known as the paid family leave program, which provides up to 6 weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, various other family members, to bond with a minor child, or to participate in a qualifying exigency related to active duty, as specified. Existing law makes an individual ineligible for family temporary disability insurance benefits with respect to any day that the individual has, among other things, had another family member, as defined, ready, willing, and able and available for the same period of time in a day that the individual is providing the required care. Existing law also authorizes an employer, as a condition of an employee’s initial receipt of family temporary disability insurance benefits during a 12-month period in which an employee is eligible for these benefits, to require the employee to take up to 2 weeks of earned but unused vacation leave before the employee’s initial receipt of these benefits.
This bill would delete the above provisions. By removing restrictions on the use of the funds within the Unemployment Compensation Disability Fund and thereby allowing those funds to be used for new purposes, the bill would make an appropriation.
Digest Key
Vote: MAJORITY Appropriation: YES Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
(a)In addition to the provisions that govern pregnancy, childbirth, or a related medical condition in Sections 12926 and 12940, each of the following shall be an unlawful employment practice, unless based upon a bona fide occupational qualification:
(1)For an employer to refuse to allow an employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission’s regulations. The employee shall be entitled to utilize any accrued vacation leave during this period of time. Reasonable period of time means that period during which the employee is disabled on account of pregnancy, childbirth, or a related medical condition.
An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave.
(2)(A)For an employer to refuse to maintain and pay for coverage for an eligible employee who takes leave pursuant to paragraph (1) under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration of the leave, not to exceed four months over the course of a 12-month period, commencing on the date the leave taken under paragraph (1) begins, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in this paragraph shall preclude an employer from maintaining and paying for coverage under a group health plan beyond
four months. An employer may recover from the employee the premium that the employer paid as required under this subdivision for maintaining coverage for the employee under the group health plan if both of the following conditions occur:
(i)The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(ii)The employee’s failure to return from leave is for a reason other than one of the following:
(I)The employee taking leave under the Moore-Brown-Roberti Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code).
(II)The continuation, recurrence, or onset of a health condition that entitles the employee to leave under paragraph (1) or other circumstance beyond the control of the
employee.
(B)If the employer is a state agency, the collective bargaining agreement shall govern with respect to the continued receipt by an eligible employee of the health care coverage specified in subparagraph (A).
(3)(A)For an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider.
(B)For an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant employee who so requests.
(C)For an employer to refuse to temporarily transfer a pregnant employee to a less strenuous or hazardous position for the duration of the pregnancy if the employee so requests, with the advice of the employee’s physician, where that transfer can be reasonably accommodated. However, no employer shall be required by this section to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.
(4)For an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(b)This section shall not be construed to affect any other provision of law relating to sex discrimination
or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part, including subdivision (a) of Section 12940.
(c)This section shall apply to employers with one or more employees.
SEC. 2. SECTION 1.
Section 12945.2 of the Government Code is amended to read:12945.2.
(a)(2)It shall be an unlawful employment practice for any employer to refuse to grant a request by any employee to take up to a total of 12 workweeks in any 12-month period for emergency leave.
(3)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)
(2)“Domestic partner” has the same meaning as defined in Section 297 of the Family Code.
(3)
(4)
(D)Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of
an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States as specified in Section 3302.2 of the Unemployment Insurance Code.
(E)
(5)
(6)
(7)“Grandchild” means a child of the employee’s child.
(8)“Grandparent” means a parent of the employee’s parent.
(9)
(10)
(11)“Parent-in-law” means the parent of a spouse or domestic partner.
(12)
(13)“Emergency leave” means family care and medical leave taken because of a state of emergency.
(14)
(15)
(C)Compliance with a state of emergency order or public health directive.
(16)“Sibling” means a person related to another person by blood, adoption, or affinity through a common legal or biological parent.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)Notwithstanding subdivision (s), an employee shall be entitled to 12 additional workweeks of emergency leave in addition to any leave taken pursuant to paragraph (1) of subdivision (a) and the FMLA, if the employee is otherwise qualified for that leave. 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 24 workweeks in a 12-month period.
(v)If an employee fails to return to work following taking their full entitlement under this section due to a continuation, recurrence, or onset of a serious health condition that would entitle the employee to leave under subdivision (a) or other circumstances beyond the control of the employee, including a continued state of emergency that causes the employee’s need for leave, once the employee notifies the employer that they are able to return to work, the employer shall comply with both of the following:
(1)Make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
(2)If the reasonable efforts of the employer under paragraph (1) fail, the employer shall make reasonable efforts during the one-year period following the end of the employee’s leave entitlement under this section to contact the employee if an equivalent position described in paragraph (1) becomes available.
(w)Nothing in this section shall limit an employee’s right to reasonable accommodations related to a disability under the Fair Employment and Housing Act.
(x)
SEC. 4. SEC. 2.
Section 245.5 of the Labor Code is amended to read:245.5.
As used in this article:SEC. 5. 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.SEC. 6. 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:SEC. 7. SEC. 5.
Section 2810.8 is added to the Labor Code, to read:2810.8.
(a) For purposes of this section:SEC. 8. 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.(3)“Public health emergency” means a health-related emergency declared by a local,
state, or federal authority.
(4)
(a)An individual is not eligible for family temporary disability insurance benefits with respect to any day that any of the following apply:
(1)The individual has received, or is entitled to receive, unemployment compensation benefits under Part 1 (commencing with Section 100) or under an unemployment compensation act of any other state or of the federal government.
(2)The individual has received, or is entitled to receive, “other benefits” in the form of cash benefits as defined in Section 2629.
(3)The individual has received, or is entitled to receive, state disability insurance benefits under Part 2 (commencing with Section 2601)
or under a disability insurance act of any other state.
(b)An individual who is entitled to leave under the FMLA and the CFRA shall take Family Temporary Disability Insurance (FTDI) leave concurrent with leave taken under the FMLA and the CFRA.
(c)This section shall become operative on January 1, 2021.