With the passage of S.B. 1661, California became the first state to pass legislation allowing employees to receive paid leave while caring for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new child. The legislation becomes effective on January 1, 2004, with employees receiving benefits beginning on July 1, 2004.
Recognizing that most workers do not take family care leave because they are unable to afford leave without pay, S.B. 1661 expands the scope of disability compensation by providing disability compensation for any individual who is unable to work due to the sickness or injury of a family member, or the birth, adoption, or foster care placement of a new child. As with disability compensation for wage loss due to the employee’s own sickness or injury, the additional disability compensation allowed under S.B. 1661 will be funded by employee payroll deductions. Moreover, as with other disability compensation, employees covered by S.B. 1661 will be eligible to receive only a portion of their wages during their absence.
Under this new “family temporary disability insurance program,” an employee may take up to six weeks of wage replacement benefits during a twelve-month period to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new child. There are certain restrictions on the compensation under this law:
- There is a seven-day waiting period during each family temporary disability benefit period where no benefits are payable within that period.
- Employees may not receive unemployment compensation or state disability insurance benefits while receiving family temporary disability benefits.
- An employee “is not eligible for family temporary disability insurance benefits with respect to any day that another family member is able and available for the same period of time that the individual is providing the required care.”
- Family temporary disability leave must be taken concurrently with leave taken under the federal Family and Medical Leave Act (FMLA), California’s Family Rights Act (CFRA) and Pregnancy Disability Leave, if applicable.
- An employer may require an employee to take up to two weeks of earned but unused vacation leave prior to receiving family temporary disability insurance benefits. (One week of vacation leave will apply to the seven-day waiting period.)
To take family temporary disability leave to care for a seriously ill family member, an employee must file a certificate of a treating physician containing (1) a diagnosis or detailed statement of symptoms; (2) the date on which the condition commenced, if known; (3) the probable duration of the condition; (4) an estimate of the amount of time needed to care for the child, parent, spouse, or domestic partner; and (5) a statement that the serious health condition warrants participation of the employee to provide care. (These certification requirements are similar to those already in existence as part of the Federal and California Family Medical Leave Acts.)
Supporters of S.B. 1661 have applauded it as a nationwide model which, according to Governor Gray Davis, saves employees from having “to choose between being good parents and good employees,” while opponents, particularly business groups, have criticized it as too costly, especially for smaller businesses, and have predicted that it will discourage new business in the state.
Application of SB 1661 to Public Sector Employees
SB 1661 only applies to employers with one or more employees who are covered by SDI or an equivalent voluntary plan. Local public employers (including schools) may elect SDI coverage through collective bargaining, in which case the provisions of this bill would be applicable.