California Bill Seeks to Expand CFRA Leave

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There have been many changes to leave laws in recent years, both under the FMLA and under California’s CFRA.  Proposed legislation recently has been introduced in California to further expand employees’ leave entitlements under CFRA.  CFRA currently allows eligible employees to take up to 12 weeks of leave in a year as needed for the birth or placement of a child, or to care for their own serious health condition or that of a child (up to 18 years of age or an adult dependent), parent (which includes a step parent and/or person who stands in loco parentis to the child), or spouse/domestic partner.  AB 2039 seeks to expand CFRA leave to allow employees to take such leave to care for siblings, parents in law, grandparents, and adult children.  If enacted, AB 2039 will obviously increase employee leaves, resulting in additional burden to California employers.  This is particularly true because California employers covered by CFRA are typically also covered by FMLA, meaning they have to comply with both laws and their employees are entitled to leave under the terms of both laws.  Because FMLA does not provide for leave to care for parents in law, siblings, and grandparents, an employee who uses leave for that purpose under CFRA will not have exhausted their FMLA leave because the CFRA leave could not be concurrently counted as FMLA leave.  In other words, the employee could theoretically take 12 weeks of leave under CFRA for a parent-in-law, grandparent or sibling, and then still be entitled to an additional 12 weeks of leave under FMLA for a spouse or child.  This very scenario already exists in California where leave is taken for disability caused by pregnancy or to care for a domestic partner.  Differences between CFRA and FMLA on these two categories result in leave not running concurrently under these two laws in these situations.  AB 2039 would add further differences between CFRA and FMLA, making leave tracking even more complicated for California employers.

The full text of AB 2039 is available here.  We will keep you posted on the status of this and other pertinent employment-related legislation pending in California.

DOL Issues Proposed Regulations Expanding FMLA’s Military Caregiver Leave and Other Provisions

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The Department of Labor this week announced proposed regulations that would expand the military caregiver leave provisions of the FMLA, and also create special rules for FMLA eligibility for airline flight crew employees. The proposed regulations would implement amendments to the FMLA set forth in the National Defense Authorization Act for Fiscal Year 2010.  The proposed regulations set forth the following changes to current FMLA leave provisions:

Military Caregiver Leave

According to the DOL, “The proposed regulations would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military.  At this time, the law only covers family members of ‘currently serving’ service members.”

The proposed regulations would also expand the military family leave provisions of the FMLA by extending qualifying exigency leave to employees whose family members serve in the regular armed forces. Currently, the law only covers families of National Guard members and reservists.

The DOL’s proposed regulations also contemplate other changes to the military caregiver leave provisions, including that qualifying exigency requires the service member to be deployed in a foreign country.  The regulations would also expand the definition of “serious injury or illness” to include conditions that existed prior to military service but were aggravated by military service.
 

Airline Flight Crew Employees

According to the DOL, the proposed regulations would make the benefits of the FMLA more accessible to airline flight crew employees by adding a special hours of service eligibility requirement for them and specific provisions for calculating the amount of FMLA leave used, in consideration of the “unique and often difficult to track” hours worked by crew members.  Specifically, airline flight crew employees who have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months satisfy the hours of service eligibility requirement for FMLA.

For more information on the proposed regulations, you can review the DOL’s FAQ here.

So, do employers need to worry about any of these changes now?  According to the DOL, yes.  Some of the changes technically are already in effect by virtue of the passage of the NDAA.  The extension of qualifying exigency leave to employee’s whose covered service member is in the Regular Armed Services is in effect.  Additionally, the new requirement for qualifying exigency leave that the service member be deployed in a foreign country is in effect.  Finally, the expanded definition of “serious illness or injury” to include aggravations of pre-existing conditions, is currently in effect.  According to the DOL, the only military caregiver leave change not yet in effect (until the proposed rules are approved and implemented) is the extension of caregiver leave for veterans as opposed to current service members.

As for the FMLA changes pertaining to airline flight crew employees, the DOL is taking the position that these changes are also effective now, per the passage of the Airline Flight Crew Technical Corrections Act (AFCTA).

We will keep you posted as to developments with these proposed regulations.  In the meantime, employers will want to review their policies and procedures for compliance.

California Employers Must Now Provide Health Benefits for Four Months for Pregnancy Disability

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This week, California Governor Jerry Brown signed into law SB 299, legislation requiring California employers to continue group health coverage to employees on pregnancy disability leave for up to four months.  California employers with five or more employees have long been required to comply with California's law permitting employees disabled by pregnancy to take a leave of absence of up to four months for the disabling condition.  This leave is in addition to traditional "maternity leave," which separately provides the employee up to 12 weeks of leave for baby bonding (if the employer has 50 or more employees and is covered under FMLA/CFRA).  Prior to passage of SB 299, employees on pregnancy disability leave were entitled to the same benefits provided by an employer to employees on other types of disability leaves.  With respect to continuation of group health benefits, many employers limit the continuation of such coverage to 12 weeks, as this is the required time period for continuation of coverage under the FMLA/CFRA for family and medical leaves of absence.  With the passage of SB 299, effective January 1, 2012, California employers must extend the continuation period to four months for pregnancy disability leaves.

As specified in the legislation, group health benefits must be continued on the same terms and conditions as if the employee continued actively reporting to work.  Therefore, if the employer pays the entire premium for employee coverage, it must continue to do so for up to four months of pregnancy disability leave.  If the employee normally pays a portion of the premium, the employee may be required to continue making such contributions (either for self or for dependent coverage) during the leave.  Additionally, if the employee fails to return from pregnancy disability leave, the employer may recoup from the employee the premiums the employer paid to continue the employee's coverage during the leave, unless the reason the employee did not return is because of a continuing disability or because the employee took a separate protected leave (e.g. maternity leave) under the FMLA/CFRA.

California employers should review their policies and procedures relating to pregnancy disability leaves to ensure compliance with this new law.

Is Sabbatical a Form of Vested Vacation Benefits?

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Employers who offer paid sabbaticals to their long-term employees probably should not be sued, but apparently they are not immune. In Paton v. Advanced Micro Devices, Inc., the plaintiff resigned his employment with AMD and then brought a class action against AMD alleging that the company failed to pay out earned but unused sabbatical pay. According to the plaintiff, the sabbatical pay was just another form of accrued vacation that was required to be paid out on termination of employment.The trial court threw out the claim, finding that AMD's sabbatical program was not the equivalent of vested vacation and that sabbatical pay did not have to be paid out on termination of employment. The plaintiff appealed.

On appeal, the court held that there was insufficient evidence before the court to find that AMD's time off program was a true sabbatical program and not vacation. The court discussed the differences between vacation and sabbaticals, explaining that vacation is not conditioned upon anything other than the employee's rendering of service and vacation does not impose conditions on how the employee uses the time away from work. Sabbaticals, on the other hand, tend to be purpose-driven and aimed at providing the employee with incentive for professional growth and continued employment. However, the court recognized that many private companies are providing sabbatical leaves that provide for an extended amount of time off (longer than any typical vacation) but are not necessarily tied to any special learning opportunity. The court indicated that this type of sabbatical program is harder to distinguish from a vacation program. Nonetheless the court laid out several factors to be considered in assessing whether a leave program is a sabbatical: (1) the leave must be granted infrequently, e.g. every seven years; (2) the leave time is longer than a typical vacation; (3) the leave must be granted in addition to regular vacation that is comparable to that offeredcomparable employees in the regular market; and (4) the leave program should specify that the employee is expected to return to work for the employer after the sabbatical is over.

Analyzing the specific sabbatical program before it, the court held that there was insufficient evidence to support a finding that the leave qualified as a sabbatical as a matter of law. AMD's policy originally provided for an 8-week sabbatical leave after seven years of employment, but was later changed to provide for a 4-week sabbatical after five years of service. The policy provided for continued accrual of vacation during the sabbatical leave and for return to work upon conclusion of the leave. The policy's express purpose was to encourage continued employment by providing time away for revitalization and enrichment. The court found that the length of the sabbatical leave and frequency upon which it could be taken were areas that reasonable minds could differ as to whether the leave was qualitatively different than traditional vacation leave. Furthermore, the court did not have evidence as to AMD's motivation in adopting the policy or how AMD's vacation policy compared to that of competitors. As such, the court remanded the case to the trial court.

Employers with sabbatical programs should carefully review these programs to ensure that they are adeqately distinguished from traditional vacation to avoid costly claims for unpaid "vacation" pay on termination of employment.

Organ Donation and Bone Marrow Leave Requirements Clarified

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As many employers will recall, California implemented a new employee leave entitlement last year requiring employers to provide employees with time off for purposes of donating an organ (30 days in a one-year period) or bone marrow (5 days in a one-year period). Last week, Governor Brown signed new legislation clarifying some issues surrounding this new leave. Specifically, the new legislation clarifies that the one-year period is a rolling 12-month period measured forward from the date an employee uses the leave. The legislation also clarifies that the leave entitlement is measured in business days, not calendar days, and that leave taken pursuant to these leave provisions is not considered a break in service for purposes of benefit accruals and seniority. Finally, the legislation clarifies that an employer mayrequire an employee taking bone marrow leave touseup to five days of accrued paid time off, and an employee taking organ donation leave to use up to two weeks of accrued paid time off.

The new legislation, SB 272, is here.

San Francisco’s Paid Sick Leave Rules Become Effective June 6, 2007

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San Francisco's much publicized Paid Sick Leave Ordinance will become effective on June 6, 2007,following the conclusion of the four month transition period. The Office of Labor Standards Enforcement has issued rules and frequently asked questions to assist employers and employees as they attempt to implement the program and understand how it affects them both.Click here to review this new information.

Employers are now subject to penalties for failure to follow the requirements of the Paid Sick Leave Ordinance for their employees working in San Francisco, and must plan accordingly.For specific questions concerning compliance, please contact us directly.

Mandatory Paid Sick Leave Legislation Passes Assembly Judiciary Committee

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Paid sick leave legislation has been proposed and defeated in recent legislative sessions in California. This legislation has been proposed again this year, and just passed the Assembly Judiciary Committee largely along party lines. The proposed legislation, whichwould require California employers to providepaid sick days to employees (otherthan those covered by collective bargaining agreements)is now before the Assembly Appropriations Committee. We summarized the proposed legislation here, and will continue to post developments on this blog.

Mandatory Sick Leave Legislation Resurfaces in California

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Last month, San Francisco Assemblywoman Fiona Ma reintroduced mandatory sick leave legislation in California. Under the bill, which is labeledAssembly Bill 400, employers with 10 or less employees would have to offer full-time employees five days of paid sick time annually. Employers of more than 10 employees would have to offer nine paid sick days per year to all full-time employees. The bill would provide that this sick leave is mandatory for any employee who works in California for 7 or more days in a calendar year. However, the provisions of the bill would not apply to any employees who are covered by a collective bargaining agreement that provides for sick leave.

The bill states that the leave would be available fordiagnosis, care, or treatment of health conditions of the employee or an employee's family member, or for leave related to domestic violence or sexual assault. The bill also provides that there shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 90 days of filing a complaint under the statute or participates in any investigation related to denial of sick leave.

This is the third time Assemblywoman Fiona Ma has introduced mandatory paid sick leave legislation. It was introduced in 2008 and 2009 and defeated both times. The question now is whether the economic climate and/or the fact that we have a much more employee friendly Governor will cause this bill to be more seriously considered by the California Legislature.

Keep your eye on this one and we will continue to keep you updated. For a copy of the bill, you can click here.

Paid Leave for Organ and Bone Marrow Donation Takes Effect Next Week

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California law already requires that state employees be provided with organ donor and bone marrow donor leave. Effective next month, and in accordance with Senate Bill 1304, California private employers with 15 or more employees are similarly required to provide paid leave for any employee who is donating an organ or bone marrow. The language of the statute does not require that the employee be disabled from working in order to be eligible for the leave. Employees may take up to five days of paid leave for bone marrow donation, and up to 30 days of paid leave for organ donation. The statute is far from comprehensive but provides some guidance on the terms and conditions that employers must comply with in granting the leave. They include:

(a) The employer must maintain the employee's group health coverage during the leave.

(b) When the leave ends, the employer must restore the employee to the same position or an equivalent (meaning equivalent salary/benefits/promotional opportunities etc.) position.

(c) The leave period is a maximum per year, although the law does not specify whether or not the year should/must be calculated on a calendar year or rolling year basis or whether either method is appropriate.

(d) The leave is in addition to FMLA and CFRA leave and is not to be counted against FMLA or CFRA leave banks.

(e) The leave cannot be considered as a break in service for purposes of the employee's right to salary adjustments, sick leave, vacation, annual leave, or seniority. Thus, the employee must continue to accrue sick leave, vacation and seniority during the leave period.

(f) If, at the time the employee takes the leave, the employee had any accrued but unused vacation, sick leave or PTO, the employer can require that this accrued leave be credited against the 5-day bone marrow transplant leave. The employer may also credit a maximum of two weeks of accrued, unused vacation, sick leave or PTO for any organ donor leave. The employer can do this unilaterally if there is accrued, unused time in the employee's leave banks.

(g) Leave under this provision can be taken intermittently. No specific limits on intermittent leave (e.g. minimum increments) arespecified in the statute.

(h) The employer can require the employee to provide written documentation from a medical provider that the employee is donating an organ or bone marrow and that there is a medical necessity for the donation in order to verify the employee's right to the leave.

(i) The employer is prohibited from discriminating or retaliating against an employee because he or she utilized this leave. The employer is prohibited from interfering with an employee's leave rights.

(j) The statute provides the employee with a right to file suit in superior court to seek monetary and injunctive relief for any violation of the leave statute. The statute will be published as sections 1508-1513 of the California Labor Code.

Covered employers should consider publishing these leave rights in theiremployee handbooks. In addition, given the lack of regulations and relative uncertainty on the specifics of implementation, employers should consult labor/employment counsel if they have any questions related to an employee who seeks leave for organ or bone marrow donation. If regulations are proposed or further guidance is provided, we will report on it here in this blog.

Meal Period Legislation Among New Laws Signed by California’s Governor

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In the last two days, Governor Schwarzenegger signed and vetoed several more pieces of employment legislation, including signing legislation that exempts certain categories of unionized employees from California's meal period laws. AB 569, which will take effect January 1, 2011, exempts construction employees, security officers in the security services industry, commercial truck drivers, and employees of electrical and gas corporations and local publicly owned electric utilities from California's meal period requirements if the employees are covered by a valid collective bargaining agreement containing meal period provisions. This is an important new law that will greatly benefit employers in these industries, many of whom have been affected by the wave of meal period litigation in California in recent years and whose operations are impaired by efforts to strictly comply with California's meal period laws on threat of additional litigation.
AB 569 contains more specific definitions of the occupations exempted from meal period requirements under this law. Employers who may benefit from this new law should review it carefully before changing policies or practices and must also understand that in order for it to apply, there must be a valid collective bargaining agreement in place containing its own meal period provisions. Although California's meal period rules are in need of much broader revamping to the benefit of all employers and employees, this new legislation is at least a start in the right direction.

In addition to signing AB 569 into law, Governor Schwarzenegger also signed SB 1304, which requires private employers with 15 or more employees to provide up to 30 days of paid leave per year to an employee for purposes of donating an organ, and up to 5 days of paid leave per year to an employee for puposes of donating bone marrow.

Finally, Governor Schwarzenegger signed AB 2364, which slightly broadens eligibility for unemployment compensation by providing that employees who leave their employ to protect his or her family from domestic violence abuse are eligible for benefits.

The Governor did not sign all proposed legislation increasing employee benefits, however. Notably, Governor Schwarzenegger vetoed AB 2340, which would have required employers to provide bereavement leave to employees.

The Governor also vetoed SB 1474, which would have increased union representation in the agricultural industry by allowing the Agricultural Labor Relations Board the ability to set aside electionsbased on employer misconductand to certify a labor organization as the exclusive bargaining agent based solely on signed authorization cards. In his veto message, the Governor stated that the bill's provisions represent a "serious departure from existing law" and "tip the scale in favor of the union by allowing the ALRB to consider any misconduct, which is not defined, by the employer when making the determination to set aside the election, but does not take into consideration the possibilty that the employer may have similar allegations of election misconduct by the labor organization."