On October 12, 2017, California Governor Jerry Brown signed the New Parent Leave Act (SB 63) ("the Act") into law, requiring employers with at least 20 employees, but less than 50, to provide employees with 12 weeks of unpaid, job-protected parental bonding leave.


This law will take effect on January 1, 2018.


The Act applies to:

  • Private, state and municipal employers that directly employ 20 to 49 employees within 75 miles of each other in the state of California.


To be eligible for leave under the New Parental Leave Act, employees must have:

  • More than 12 months of service;
  • And at least 1,250 hours of service with the covered employer during the 12-month period prior to commencing leave.


The Act does not apply to employees who are covered by both the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act or “CFRA”, both of which already provide 12 weeks of unpaid, protected leave for baby bonding purposes to eligible employees of employers with at least 50 employees. However, CFRA regulations apply to the Act to the extent they are within the scope of and not inconsistent with the Act.


Under the Act, covered employers must provide 12 weeks of unpaid parental leave upon the request of eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement.


Employees are entitled to utilize any type of accrued paid time off, such as paid vacation and sick leave, during the parental leave.


In addition, the leave is job-protected, meaning employers must guarantee employment in the same or a comparable position upon an employee’s return from leave. If the employer does not provide a guarantee of employment to the employee requesting leave under the Act, it will be determined that the employer in essence refused to allow the leave. If other employees are out on leave during the time period in which an employee requests leave under the Act, employers are prevented from denying leave.


In addition to providing 12 weeks of unpaid, protected parental leave, employers must maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work. However, under the Act, employers are entitled to recover their portion of the premium in the event the employee fails to return from the leave of absence. The employer can recover the premiums only when the failure to return is not due to the continuation, recurrence or onset of a serious health condition, or “other circumstances beyond the control of the employee.” This is a provision that is similar to that allowed under the FMLA.


In cases where both parents entitled to leave under the Act are employed by the same employer, they are entitled to a combined total of 12 weeks of unpaid parental leave. The employer may, but is not required to, grant simultaneous leave to both employees. The employer may require they do not take leave at the same time.


Also, employers are prohibited from retaliating and/or discriminating against an individual for taking parental leave, and from interfering with, restraining or denying an employee his or her right to leave under the Act.


Finally, under the New Parent Leave Act a mediation pilot program for claims brought by employees under the Act is established. This provision will only apply if sufficient funding is received by the Department of Fair Employment and Housing. This mediation program would provide that an employer may request that all parties participate in mediation. This request must be made within 60 days of receipt of a right-to-sue notice. An employee can elect not to participate and thereby complete the mediation process however, cannot pursue a civil action until the mediation is complete.


Small employers will want to update their personnel policies to address new parent leave and will have to train their managers and human resources employees on how to administer the new leave rights. Significantly, the New Parent Leave Act, like the CFRA and the federal Family and Medical Leave Act, does not contain an undue hardship exception that would allow an employer to deny a leave when it would create severe difficulties for the employer.


We will keep you updated if any further guidance is provided. Please contact us if you have any further questions.

 

 

The information provided in this legislative update for our clients and colleagues is for general guidance only and is not intended to be, and does not constitute, tax or legal advice. We recommend that you consult with your tax and legal advisors for the interpretation or application of any laws for your particular circumstances and situation.