2015 Legislative Developments: New Leave Legislation

The California Legislature has enacted a number of new laws that will impact employers and employees in 2016. In eight installments, Kronick will provide you with helpful summaries by category. The second installment covers New Leave Legislation.

II. New Leave Legislation

A. AB 304 (Gonzalez): Sick Leave Accruals Under the Healthy Workplaces Healthy Families Act

This bill made changes to the HWHFA passed in 2014. Specifically, the bill:

1. The definition of “employee” is revised to exclude retired annuitants working for public employers.

2. Authorizes employers to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked, provided that the accrual is on a regular basis and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment.

3. Authorizes employers to limit an employee’s use of paid sick leave to 24 hours or three days in each year of employment, a calendar year, or other designated 12-month period.

4. Clarifies that an employer is not required to pay additional paid sick leave pursuant to the HWHFA if the employer has a paid leave policy or paid time off policy, the employer makes available an amount of leave for specified uses, and the employer’s policy satisfies the accrual, carry over, and other use requirements in the law.

5. The bill was adopted as an emergency measure and chaptered on July 15, 2015, which means it took effect immediately.

B. SB 579 (Jackson): Parental Leave

This bill amends Labor Code sections 230.8 and 233.

Labor Code section 230.8 currently requires an employer with 25 or more employees to provide employees who have children in a licensed child day care facility in grades K through 12 with up to 40 hours of leave per year to participate in school activities. This bill makes the following revisions.

1. The reference to licensed child day care facility is changed to licensed child care provider.

2. Specified bases for taking leave are expanded to include finding, enrolling, or reenrolling a child in school or a licensed child care provider, and to address a child care provider or school emergency.

3. The definition of “parent” is expanded to include a parent, guardian, stepparent, foster parent, grandparent, or a person standing in loco parentis to the child.

4. Finally, this bill makes changes to Labor Code section 233 (aka “Kin Care”) to redefine “sick leave” as any leave taken for purposes specified in the HWHFA.

C. AB 375 (Campos): School Employees’ Paternity and Maternity Leave

This bill adds Education Code section 44977.5. Existing law provides that when a certificated school employee exhausts available sick leave and continues to be absent from his or her duties on account of illness or accident for an additional period of up to five school months, the employee is entitled to “differential pay” in an amount equal to the difference between his or her pay and the sum that is actually paid a substitute to fill that employee’s position or, if no substitute is employed, the amount that would have been paid to such a substitute. This bill would extend this differential pay benefit for a period of up to 12 weeks for an employee taking maternity or paternity leave under the California Family Rights Act (CFRA). The bill further provides that if its provisions conflict with a collective bargaining agreement entered into before January 1, 2016, the collective bargaining provisions control until expiration or renewal of the agreement.

D. SB 221 (Jackson): California Wounded Warriors Transitional Leave Act

This bill amends Government Code section 19859 to provide that a state officer or employee who is a military veteran hired on or after January 1, 2016 who has a military serviceconnected disability rated of 30% or more by the Department of Veterans Affairs is granted additional sick leave credits of up to 96 hours for the purpose of undergoing medical treatment connected with his military service-connected disability. The affected employee is entitled to the additional sick leave credit at time of hire and the additional credit remains available for use for the following 12 months of employment. After 12 months, any remaining sick leave credits granted pursuant to this section that have not been used are forfeited and may not be carried over.