Last year, Assembly Bill (AB) 375 added section 44977.5 to the Education Code to provide certificated employees access to differential pay while on a leave of absence occasioned by the birth of the employee’s child, or the placement of a child in connection with the adoption or foster care of the child by the employee as provided by the California Family Rights Act (CFRA).
This year, AB 2393 makes additional, significant changes to child bonding leaves for most K-14 employees Specifically, AB 2393 extends differential pay entitlements during bonding leave to almost all school employees, including certificated and classified employees in K-12 school districts and county offices of education (COE) as well as classified and academic employees working in community college districts (CCD). References to school districts in this FAQ also include COEs. This bill removes the requirement that employees must have worked 1,250 hours during the immediately preceding 12 months in order to qualify for the leave. Finally, the bill makes some changes designed to clarify questions raised by AB 375. Other than these changes, the terms and conditions of bonding leave generally remain governed by CFRA or the federal Family Medical Leave Act (FMLA), whichever of the two laws provides the greater benefit.
Effective January 1, 2017, AB 2393 amends Education Code section 44977.5 (K-12 certificated employees) and adds Education Code sections 45196.1 (K-12 classified employees), 87780.1 (CCD academic employees), and 88196.1 (CCD classified employees).
- What is “parental leave”?
AB 375 referred to leave for reason of the birth or placement of a child as “maternity or paternity leave.” AB 2393 now uses the term “parental leave,” which it defines as “leave for reason of the birth of a child of the employee, or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.” This leave is commonly referred to as “bonding leave,” and this FAQ uses the terms “bonding leave” and “parental leave” interchangeably.
- Did AB 375 or AB 2393 amend CFRA, Pregnancy Disability Leave (PDL), and/or FMLA, in addition to the California Education Code?
AB 2393 changed only the Education Code by amending Education Code section 44977.5 and adding sections 45196.1, 87780.1, and 88196.1. While these laws are not a model of clarity, AB 2393 (and AB 375 before that) creates a pay benefit under the Education Code during an otherwise unpaid leave. With one important exception, all statutes, rules, regulations, and understandings regarding CFRA, FMLA, and PDL remain unchanged. (See question 3 regarding employee eligibility and hours requirements.)
- Which employees are eligible for AB 2393 parental leave benefits?
AB 2393 applies to eligible certificated and classified employees of school districts, as well as academic and classified employees of CCDs. Generally, to qualify for CFRA/FMLA leave, there are two eligibility requirements: 1) the employee must have been employed by the district for a period of at least 12 months prior to taking the leave, and 2) the employee must have actually worked 1,250 hours during the year immediately preceding the leave. AB 2393 eliminates the second, 1,250 hours requirement. So, in order to be eligible for parental leave under the Education Code, the employee need only have been employed by the District for 12 months to qualify, thus expanding parental leave benefits to part-time employees who otherwise would not be eligible. The 1,250-hour requirement is only eliminated for parental leave under the Education Code and still applies to other CFRA/FMLA-qualifying leaves, such as leave for an employee’s own serious health condition.
- How do I determine if an employee has met the 12-month eligibility requirement?
Under CFRA regulations, to be eligible for bonding leave an employee must have worked for the district for at least 12 months. A question that continues to arise is whether a probationary certificated employee (or other non-12-month employee) is eligible for leave at the start of his or her second year of employment. While the answer is not completely clear, we recommend districts use the initial date of employment to determine whether an employee has met the 12 months of employment requirement. For instance, if a first year probationary employee is employed on September 1 of year one, if the employee is reelected, he/she would become eligible on September 1 of year two even if he/she did not work over the summer break.
- How much bonding or parental leave is an eligible employee entitled to?
Under the CFRA regulations, an eligible employee is entitled to 12 workweeks of bonding leave to be utilized during the first year following the birth or placement of a child with the parent through foster care or adoption. Twelve workweeks means the equivalent of 12 of the employee’s normally scheduled workweeks. If, for example, an employee normally works three days per week, then the employee would be entitled to 12 3-day workweeks of leave. AB 2393 clarifies that employees are only entitled to one 12-workweek period of parental leave in any 12-month period.
- What if both parents work for the district?
Where both parents are employees of the district, the district may limit the period of bonding leave to 12 total workweeks to be shared between the two parents. Note that unmarried parents may have different unpaid leave rights under FMLA.
- When does an employee begin receiving differential pay while on bonding leave?
AB 2393 clarifies that an employee “may” use his or her sick leave for the purposes of parental leave for a period of up to 12 workweeks. Therefore, employees may choose not to use their sick leave while on bonding leave. However, an employee must first exhaust all available sick leave, including all accumulated sick leave, and continue to be absent from his/her duties on account of parental leave in order to gain access to differential pay.
The 12-workweek differential period is reduced by any period of sick leave, including accumulated sick leave, taken during parental leave. For example, an employee who uses seven weeks of sick leave and accumulated sick leave during his/her bonding leave — assuming this exhausts all such available leave — is then eligible to receive differential pay for the remaining balance of the 12-week period — an additional 5 weeks of leave. An employee who elects not to exhaust his/her sick leave during the parental leave is ineligible for and cannot access the partial pay benefit.
- What salary and benefits do an employee receive under AB 2393?
The Education Code requires school districts to continue providing partial salary to an employee who has exhausted all available sick leave, including accumulated sick leave, and, due to illness or injury, continues to be absent from his/her duties for a period of up to five months. There are two options districts may select from to determine these payments. Whatever option the District has selected for extended sick leave, it must utilize that same option to determine salary during parental leave as well:
Sub-Pay Deduct/Differential Pay
Under this option the district must pay the employee his/her total salary minus the actual cost of a substitute to fill the position. There are different rules for certificated and classified employees when implementing differential pay.
Certificated: The district must make every reasonable attempt to secure the services of a substitute, but if it is unable to find a substitute, it may deduct from the employee’s salary the amount that would have been paid a substitute.
Classified: The district may only deduct the cost of a substitute if a substitute is actually hired to fill the position.
50 Percent Pay Rule
Where the district has adopted the 50 percent pay rule for certificated or classified, the district must ensure that an employee is compensated at no less than fifty percent of his/her salary during the partial pay period.
AB 2393 applies these rules to employees who have exhausted all available sick leave, including accumulated sick leave and continue to be absent due to parental leave for a period of up to twelve weeks. Similar provisions apply to academic and classified employees of CCDs.
While out on parental leave, an employee is also entitled to receive any applicable health benefits the employee was receiving immediately before the commencement of the leave. The employee is still required to pay his/her regular contribution while on parental leave but the district should notify the employee of this requirement.
- What if an employee has exhausted his/her “normal” five months of differential pay prior to going on leave?
If an employee has already exhausted his/her “normal” five months of differential pay for a personal injury or illness under preexisting Education Code provisions, including a leave for pregnancy disability, the employee is nevertheless entitled to up to 12 workweeks of differential pay for bonding purposes. Although AB 2393 still did not directly answer this question, we believe the legislative intent was to provide a separate and distinct 12-workweek pay entitlement for parental leave in conjunction with CFRA leave which is addition to any other differential pay already provided under preexisting statutes.
- What if an employee does not use the entire 12 weeks of parental leave in one school year?
AB 2393 clarifies that an employee is only entitled to one 12-workweek differential pay period during any 12-month period. However, this leave may be utilized anytime during the year following birth or placement of a child and may be split over two school years if it has not been exhausted in accordance with the CFRA limitations discussed in Question 11 below. For instance, if a child is placed with the employee on May 1 of year one and she uses six weeks of bonding leave during that year, she will have six remaining weeks to use before May 1 of year two.
- Can parental leave benefits be used intermittently, or must they be used in one continuous period?
A bonding leave does not have to be taken in one continuous period of time, subject to some limitations. Under CFRA regulations, the minimum duration of the leave shall be two weeks, except that employers must grant a request for a leave of less than two weeks’ duration on any two occasions and may grant additional requests. Any leave taken must be concluded within one year of the birth or placement of the child with the employee.
CFRA regulations provide that, under certain circumstances, an employee who has been granted an intermittent or reduced schedule leave for bonding purposes may be required to transfer temporarily to an available alternative position. Any such transfer must comply with applicable collective bargaining agreements, law, and district policy. We recommend contacting legal counsel if a transfer is contemplated to assist in addressing all legal issues involved.
- What are the collective bargaining implications?
AB 2393 provides that school districts must comply with either AB 2393 requirements or the collective bargaining agreement, whichever provides greater parental leave rights to employees.
CFRA regulations further clarify that an employee or employee organization cannot agree to waive CFRA rights in exchange for other contractual benefits. Therefore, AB 2393 and CFRA regulations provide a floor that the District is required, at a minimum, to provide. It may, in certain circumstances, agree to provide additional related benefits in the negotiations process.
- Should districts update collective bargaining agreements, policies and leave forms, notifications, etc.
Yes. AB 2393 vastly expands the rights of school employees to take parental leaves. These changes will likely require updates to collective bargaining agreements, policies and related district leave forms and notifications.
Please do not hesitate to contact any of our DWK LEAP attorneys with any questions or concerns regarding implementation. Need assistance bringing your leave documents up to speed in accordance with these new laws? Contact us about conducting a leaves compliance review.