New parental leave mandate

2017 LEGISLATIVE SESSION

This month, Gov. Jerry Brown signed the New Parent Leave Act (Senate Bill 63) to create a new unlawful employment practice related to parental leave. The bill creates a new leave mandate on businesses with 20 to 49 employees.

Section Two of the bill adds Section 12945.6 to the Government Code to create an unlawful employment practice for failure to provide a minimum of 12 weeks of parental leave or failure to maintain health plan coverage during the time of parental leave. By amending the Fair Employment and Housing Act, the bill allows considerable private enforcement of the new mandated leave policy, including the threat of injunctive relief, punitive damages and attorney fees.

The new law prohibits an employer from refusing to allow an employee to take up to 12 weeks of parental leave to bond with a new child within one year of the child's birth, adoption or foster care placement. An employee is defined to have more than 12 months of service with the employer and at least 1,250 hours of service with the employer during the previous 12 months, and who works for an employer with at least 20 employees located within 75 miles. These provisions are contained in Section 12945.6(a)(1).

In addition, the new law prohibits an employer from refusing to maintain and pay for coverage for an eligible employee who takes parental leave under a group health plan for the duration of that leave, not exceeding 12 weeks over a 12-month period. This provision is contained in Section 12945.6(a)(2).

An employee can take other leave provided by existing state law if the employee is otherwise qualified for that leave. This provision is contained in Section 12945.6(b). However, this new leave mandate does not apply to an employee who is subject to both the leave provided to those employees who work for an employer with at least 50 employees and who are subject to the federal Family and Medical Leave Act. This provision is contained in Section 12945.6(c).

An employer may recover the premium that the employer pays for maintaining coverage if the employee fails to return from leave after the period of leave has expired and the failure of the employee to return to work is for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee's control. These provisions are contained in Section 12945.6(d)(1) and (2).

Where both parents are entitled to leave under this new mandate and they are both employed by the same employer, then the employer is not required to grant leave that would allow the parents leave totaling more than 12 weeks. In addition, the employer may grant simultaneous leave to both employees. These provisions are contained in Section 12945.6(e).

The new law also makes it an unlawful employment practice for an employer to refuse to hire a job applicant or to terminate or discriminate against an individual because the individual exercised his or her right to parental leave or because an individual gave information or testimony as to his or her parental leave (or even to another person's leave) in an inquiry or proceeding. These provisions are contained in Section 12945.6(g)(1) and (2).

It is also an unlawful employment practice for an employer to interfere with, restrain or deny the exercise of any rights under this new code section. This provision is contained in Section 12945.6(h). By making these violations an unlawful employment practice, they are subject to enforcement under FEHA.

The new law defines "employer" to mean a person who directly employs 20 or more persons to perform services for a wage, as well as the state, cities and counties. This provision is contained in Section 12945.6(i)(1) and (2). The Fair Employment and Housing Council is directed to incorporate existing regulations interpreting the California Family Rights Act to govern the leave under this new code section. This provision is contained in Section 12945.6(j).

Finally, the new law creates a two-year mediation pilot program within the Department of Fair Employment and Housing, so long as necessary funding is appropriated by the Legislature. Under this temporary program, an employer may request mediation within 60 days of getting a right-to-sue notice. However, an employee can elect not to participate in or withdraw from the mediation. These provisions are contained in Section 12945.6(k).

Gov. Brown vetoed a similar bill last year (SB 654) citing the cost burdens of a mandated parental leave program on small businesses. He also expressed a desire for mediation to address the litigation concerns expressed by the bill's opponents. Interestingly, last year's bill contained a six-week mandated leave, whereas this year's version contains a 12-week leave.

While the mediation program in this bill has a significant loophole, it was enough to satisfy the Governor's concerns from last year's bill. SB 63 was signed in a ceremony with the Legislative Women's Caucus despite strong objections by the California business community. The California Chamber of Commerce had labeled SB 63 as a Job Killer bill.