Since the beginning of this year, eligible certificated employees in K-12 school districts and county offices of education have been entitled to use maternity and paternity leave (aka "bonding" leave) compensated at the differential pay rate. Effective January 1, 2016, Education Code section 44977.5 provides differential pay for certificated employees who take maternity or paternity leave under the California Family Rights Act (CFRA), for up to 12 school weeks. On September 30, 2016, Governor Brown signed into law AB 2393, which expands these parental leave rights to virtually all K-12 and community college district (CCD) employees. AB 2393 amends Education Code section 44977.5 and adds Education Code sections 45196.1 (K-12 classified employees), 87780.1 (CCD academic employees), and 88196.1 (CCD classified employees). The new statutes take effect January 1, 2017.
In addition to expanding parental rights to these other employees, AB 2393 removes the eligibility requirement that an employee work at least 1,250 hours in the 12 months immediately preceding the leave. The CFRA (Government Code § 12945.2) imposes a two-part eligibility test for leave: the employee (1) must have worked for the employer for at least 12 months, and (2) must have worked at least 1,250 hours in the 12 months immediately preceding the leave. AB 2393 removes the second eligibility requirement, which will expand parental leave to part-time employees who would normally not qualify for CFRA leave.
Unlike its predecessor, AB 2393 does not provide school districts and CCDs a grace period to negotiate new language pertaining to parental leave in collective bargaining agreements. The current version of section 44977.5 provides that if the parental leave requirements conflict with a collective bargaining agreement entered into before January 1, 2016, the requirements would not go into effect until the expiration or renewal of that agreement. By contrast, AB 2393 provides that effective January 1, 2017, an employer must comply with the law or contract, whichever provides greater rights to the employee. Any contract language that gives employees less leave entitlement than the law will be unenforceable.
As reported in our October 21, 2015 Alert, section 44977.5 was not a model of clarity and left K-12 school districts grappling with several unanswered questions. AB 2393 attempts to remedy some of the deficiencies in section 44977.5. In particular, AB 2393 makes the following changes to section 44977.5, which are replicated in the corresponding provisions applicable to K-12 classified employees and CCD employees:
- Recognition of school districts and CCDs that have adopted the 50% salary model for differential extended sick leave pay. The current version of section 44977.5 addresses only school districts that have adopted the substitute differential pay method pursuant to section 44977. AB 2393 clarifies that parental leave also applies to school districts and CCDs that have adopted the 50% salary model pursuant to section 44983 (K-12 certificated employees), the last paragraph of section 45196 (K-12 classified employees), section 87786 (CCD academic employees), and the last paragraph of section 88196 (CCD classified employees). Employees of districts that have adopted the 50% salary model will receive 50% of their salary during parental leave.
- Clarification that employees may use sick leave during parental leave for up to 12 workweeks. The current version of section 44977.5 refers to an employee who has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent on account of maternity or paternity leave. Current law does not specify whether a district is required to permit parents to take paid sick leave to bond with their babies. AB 2393 clarifies that employees (mothers or fathers, whether natural, adoptive, or foster parents) must be allowed to use available sick leave for purposes of bonding.
- Replacement of the entitlement of 12 weeks of differential pay "per maternity or paternity leave" with one 12-week period of parental leave during any 12-month period. CFRA leave is limited to 12 weeks in a given 12-month period. AB 2393 makes parental leave entitlement consistent with CFRA by limiting such leave to 12 weeks per year. Additionally, AB 2393 specifies that parental leave and CFRA leave run concurrently.
- Renaming "maternity and paternity leave" as "parental leave." AB 2393 replaces all references to "maternity and paternity leave" in section 44977.5 with "parental leave." "Parental leave" maintains the same definition: "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."
Although AB 2393 clarified many unanswered questions about parental leave entitlement, it does not address whether the 12 weeks of parental leave is a part of an employee’s five-month or 100-day extended sick leave period. AB 2393 specifies that the 12-workweek period "shall be reduced by any period of sick leave, including accumulated sick leave, taken during a period of parental leave." Additionally, AB 2393 specifies that the 12 weeks of parental leave and 12 weeks of CFRA leave shall run concurrently. However, AB 2393 makes no mention of extended sick leave entitlement (i.e., five months or 100 days) in relation to parental leave. We interpret both the existing and revised statutes to mean the 12 weeks of parental leave are in addition to the extended sick leave entitlement.
AB 2393 vastly expands employees’ parental leave rights, and will require school districts, county offices, and CCDs to review policies and collective bargaining agreements (again) to ensure compliance with the law. As always, we are ready to assist school districts and CCDs in navigating the complexities of employee leaves.