Assembly Bill (AB) 375 added section 44977.5 to the Education Code, effective January 1, 2016, to allow certificated employees who have exhausted all available sick leave and continue to be absent while taking a maternity/paternity leave under the California Family Rights Act (CFRA; Government Code section 12945.2) to receive differential pay for up to 12 school weeks.  This “bonding leave,” is for the birth or placement of a child in connection with the employee’s adoption or foster care.

AB 375 applies equally to male and female certificated employees (not classified) who wish to take a maternity or paternity leave and are eligible for leave under CFRA (must have at least 1,250 hours of service with the employer during the previous 12-month period).

An employee on CFRA bonding leave is entitled to differential pay only if s/he first exhausts all available and accumulated sick leave. The 12-week differential period is reduced by any period of sick leave.  For example, an employee who uses 6 weeks of accumulated sick leave during bonding leave – assuming this exhausts available sick leave – is eligible for differential pay for the remaining 6 weeks of the 12 week period.  An employee who elects not to exhaust sick leave during the bonding leave is ineligible for differential pay.

This exhaustion requirement is a major departure from current CFRA law and most collective bargaining agreements which do not allow sick leave to be used for the purpose of bonding leave. Employees may now unilaterally elect to utilize accumulated sick leave for bonding leave, and, once exhausted, to receive differential pay for the balance of the 12 weeks.  Under CFRA, an employer still cannot require an employee to use any of his/her accumulated sick leave for child bonding.

Differential pay during the 12 week leave period is defined as his/her salary minus the sum that is actually paid or would have been paid to a substitute employee to fill the position during the employee’s absence. AB 375 does not address the “50% pay rule” under which a teacher receives at least 50% of his/her salary, rather than the difference between his/her salary and the amount that would have been or was actually paid a substitute.  (Ed. Code section 44983.)

We believe the specific language of Education Code section 44977.5 prevails over the general language of section 44983.  Therefore, districts that have adopted the “50% pay rule” should nevertheless calculate differential pay using the “normal” calculation method in 44977.5.

We believe AB 375 provides a 12-week entitlement in conjunction with CFRA leave in addition toany other differential pay provided under preexisting statutes. Thus, an employee who exhausts his/her “normal” five months of differential pay is also entitled to up to 12 weeks of differential pay for bonding purposes under AB 375.

An employee is only provided one 12-week differential pay period per maternity/paternity leave.  If a school year ends before the 12-week period is exhausted, the employee may take the balance of the 12-week period in the subsequent school year.

A bonding leave need not be taken in one continuous period.  Under CFRA regulations, the minimum duration of leave is two weeks; however, employers must grant requests for leaves of less than two weeks on two occasions and may grant additional requests for leaves lasting less than two weeks.  Any leave taken must be concluded within one year of the birth or placement of the child.

Section 44975 states: “To the extent that this section conflicts with a provision of a collective bargaining agreement entered into by a public school employer and an exclusive representative before January 1, 2016…this section shall not apply until expiration or renewal of that collective bargaining agreement.”  What constitutes a “conflict” is unclear; however, we believe certificated contracts that provide unpaid leave or a different method of calculating pay during bonding leave “conflict” with the new law and prevail until the contract expires.

In cases of “conflict,” districts must update the language when the agreement expires or is renewed.  If the contract is silent, it is unnecessary to update the CBA since the district is automatically required to comply with the new law.

Dannis Woliver Kelley has prepared a detailed list of FAQs and answers related to AB 375. The document is available at https://www.dwkesq.com/FAQ-AB375.

This article originally appeared in the ACSA EdCal. To read the original article, please click here.