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The California Legislature is once again considering a bill that would expand parental leave requirements to smaller businesses.
Currently, businesses with 50 or more employees must provide protected baby-bonding leave. The new law would apply to employers with 20-49 workers.
After a similar bill was vetoed by Gov. Jerry Brown in 2016, author Sen. Hannah-Beth Jackson, D-Santa Barbara, said she would continue to advance the issue of parental leave.
Jackson introduced S.B. 63 on Dec. 22, 2016, a few weeks after the 2017 legislative session began.
"The California Legislature can be stubborn, and with heavily Democratic majorities in both houses, this type of legislation almost always passes," said James J. McDonald Jr., an attorney with Fisher Phillips in Irvine, Calif.
If Brown doesn't sign the new bill, it will likely show up on the next governor's desk, he added.
"The new bill, like last year's version, aims to give FMLA-like baby-bonding leave rights to employees of businesses who employ between 20 and 49 employees," explained Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.
While both versions would apply to employers with 20 or more employees within 75 miles of the worksite, S.B. 63 provides for more leave than the vetoed bill, said Susan Groff, an attorney with Jackson Lewis in Los Angeles.
The new bill would provide mothers and fathers with 12 weeks of unpaid job-protected baby-bonding leave. Covered employees would be entitled to take the leave within the first year following a child's birth, adoption or foster placement. The vetoed bill would have provided six weeks of leave.
"This increase would impose a substantial new burden on small businesses," Olmsted noted.
Currently in California, employers with five or more workers are required to provide up to four months of leave to women who become disabled by pregnancy, childbirth or a related medical condition.
Existing law also provides eligible employees—male and female—with 12 weeks of baby-bonding leave if their employer has at least 50 employees within a 75-mile radius.
[SHRM members-only HR Q&A: How does the California Family Rights Act (CFRA) leave differ from FMLA leave?]
Small Business Concerns
"If S.B. 63 were passed, small businesses should be cognizant of the costs associated with the bill," Groff said. The leave would be unpaid, but there are other associated costs.
As an example, Groff said S.B. 63 would require employers to maintain employee medical benefits during the leave period.
"In addition, employers must determine how they may cover job duties while the employees are on leave—such coverage may be especially challenging for small employers," she said.
When Brown vetoed the 2016 bill, he raised concerns about its impact on small businesses and the potential liability that could result from the bill.
Groff noted that S.B. 63 mandates a greater amount of leave than the vetoed bill did for eligible employees.
"In that regard, the drafter did not change the law in a way that would address the governor's reservations about the impact that this law would have on small businesses," Olmsted said.
"The [new] legislation also fails to account for Gov. Brown's suggestion that mediation be considered as a requirement before a lawsuit could be filed alleging a violation of this law," McDonald said.
Small businesses that oppose the bill should contact their legislators and voice their opposition, McDonald suggested.
"Most legislators will listen to small business, so employers potentially affected by this legislation should communicate to legislators how disruptive and damaging to small business such a law will be, and how it is likely to lead to more lawsuits that are crippling to smaller businesses," he added.
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