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Appendix F - Family Care Leave
     
Article I - Agreement
Article II - Recognition
Article III - Definitions
Article IV - Negotiation Procedures
Article V - Non-Discrimination
Article VI - Association Rights
Article VII - Academic Freedom
Article VIII - Professional Dues or Fee & Payroll Deductions
Article IX - Grievance Procedure
Article X - Leaves
Article XI - Employee Rights
Article XII - Working Conditions
Article XIII - Personnel Files
Article XIV - College Calendar
Article XV - Holidays
Article XVI - Appointment of Faculty
Article XVII - Unit Vacancies
Article XVIII - Reassignments
Article XIX - Evaluation of Faculty
Article XX - Due Process
Article XXI - Reduction in Force
Article XXII - Workload
Article XXIII - Salary
Article XXIV - Reduced Workload
Article XXV - Other Duty and Compensation
Article XXVI - Additional Duty Assignment
Article XXVII - Employee Benefits
Article XXVIII - Travel
Article XXIX - Department Chairperson
Article XXX - Retiree Benefits
Article XXXI - Miscellaneous
Article XXXII - Public Charges
Article XXXIII - Unit Stability
Article XXXIV - Statutory Changes
Article XXXV - Savings Clause
Article XXXVI - District Rights
Article XXXVII - No Strike, No Lockout
Article XXXVIII - Completion of Meet and Negotiation
Article XXXIX - Faculty Service Areas
Appendix A - Faculty Salary Schedules
Appendix B - Co-Curricular Activities
Appendix C - Advising, Counselor/Librarian Hours & Stipends
Appendix D - Side Letter - Access to Personnel File
Appendix E - Criteria for Academic Reduction in Force
Appendix F - Family Care Leave
Appendix G - Lecture Equivalancy Hours - Athletics
Appendix H - Retiree Fringe Benefit
Appendix I - Approved Academic Calendar
Exhibit 1 - Non-Contractual Memorandums of Understanding
AB 77, Section 12945.2
 
12945.2 (a) It shall be an unlawful employment practice for any employer of fifty (50) or more employees to refuse to grant a request by any employee with more than one (1) year of continuous service with the employer, who meets all requirements of this section, and who is eligible for other benefits to take up to a total of four (4) months in a 24-month period for Family Care Leave. Family Care Leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.
 
12945.2 (b) For purpose of this section:
 
  1. “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either of the following:
    1. under 18 years of age.
    2. an adult dependent child.
  2. “Employer” means any person who directly employs fifty (50) or more persons to perform services for a wage or salary.
  3. “Family care leave” means either of the following:
    1. Leave for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption of the child by the employee, or the serious illness of a child of the employee.
    2. Leave to care for a parent or a spouse who has a serious health condition.
  4. “Employment in the same or a comparable position” means employment in a position that has the same or similar duties and pay which can be performed at the same or similar geographic locations as the position held prior to the leave.
  5. “Health care provider” means an individual holding either a physician’s and surgeon’s certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code or an Osteopathic Physician’s and Surgeon’s certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code.
  6. “Parent” means a biological, foster, or adoptive parent, a stepparent, or a legal guardian.
  7. “Serious health condition” means an illness, injury, impairment, or physical or mental condition which warrants the participation of a family member to provide care during a period of the treatment or supervision and involves either of the following:
    1. Inpatient care in a hospital, hospice, or residential health care facility.
    2. Continuing treatment or continuing supervision by a health care provider.
    3. An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (A), except as required by subdivision (D).
    4. Subdivision (A) may elect, or an employer may require the employee, to substitute for leave allowed under subdivision (A) any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. However, an employee shall not use sick leave during the period of the Family Care Leave unless mutually agreed to by the employer and the employee.
    5. Any employee taking leave pursuant to subdivision (A) shall continue to be entitled to participate in health plans, pension and retirement plans, and supplemental benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than family care. In the absence of these conditions, an employee shall continue to be entitled to participate in these plans, and in the case of health and welfare employee benefit plans, including group medical, life, short-term or long-term disability or accident insurance, or other similar plans, the employer may, at his or her discretion, require the employee to pay premiums, at the group rate, during the period of leave not covered by any accrued vacation leave, or other accrued time off, or any other paid or unpaid time off negotiated with the employer, as a condition of continued coverage during the leave period. However, the nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any Collective Bargaining Agreement, or any employee benefit plan.
      For purposes of pension and retirement plans, an employer shall not be required to make plan payments for an employee during the leave period, and the leave period shall not be required to be counted for purposes of time accrued under the plan. However, an employee covered by a pension plan may continue to make contributions in accordance with the terms of the plan during the period of the leave.
    6. During a Family Care Leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any Collective Bargaining Agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
    7. If the employee’s need for a leave pursuant to this Section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.
    8. If the employee’s need for leave pursuant to this Section is foreseeable due to a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.

      1. An employer may require that an employee’s request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring the care. That certification shall be sufficient if it includes all of the following:
        1. The date on which the serious health condition commenced.
        2. The probable duration of the condition.
        3. An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
        4. A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
      2. Upon expiration of the time estimated by the health care provider in subparagraph (c), the employer may require the employee to obtain re-certification in accordance with the procedure provided in paragraph (1), if additional leave is required.
    10. It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:
      1. An individual’s exercise of the right to Family Care Leave provided by subdivision (a),
      2. An individual’s giving information or testimony as to his or her own Family Care Leave, or another person’s Family Care Leave, in any inquiry or proceeding related to rights guaranteed under this Section.
    11. The provisions of this Section shall be construed as separate and distinct from those of Section 12945. However, leave taken pursuant to this Section shall be no more than one (1) month when used in conjunction with the maximum leave under Section 12945, unless the employer and employee agree otherwise.
    12. This Section shall not entitle the employee to receive disability benefits under Part 1 (commencing with Section 3200) of Division 4 of the Labor Code.
    13. Leave provided for pursuant to this Section may be taken in one (1) or more periods but shall not exceed a total of four (4) months within a 24-month period from the date the leave commenced unless otherwise agreed to by the employee and the employer.
    14. An employer shall be required to grant an employee Family Care Leave which would allow the employee and the other parent of the child Family Care Leave totaling more than the amount specified in subdivision (a), nor to grant an employee Family Care Leave for any period of time in which the child’s other parent is also taking Family Care Leave from employment or is unemployed.
    15. Notwithstanding subdivision (a), an employer may refuse to grant a request for Family Care Leave made by an employee if this refusal is necessary to prevent undue hardship to the employer’s operations.
    16. Notwithstanding subdivision (a), an employer may refuse to grant a request for Family Care Leave made by a salaried employee who, on the date the request for Family Care Leave is made, is either one of the five (5) highest paid employees, or is among the top ten percent (10%) of the employees in terms of gross salary, whichever group encompasses the greater number of persons, employed by the employer at the same location.
 
  Sec. 5. Section 19702.3 is added to the Government Code, to read:
 
    19702.3 (a) An appointing authority shall not refuse to hire, and shall not discharge, suspend, expel, or discriminate against, any individual because of any of the following:
     
   
  1. An individual’s exercise of the right to Family Care Leave provided by subdivision (a) of Section 12945.2.
  2. An individual’s giving information or testimony as to his or her own Family Care Leave, or another person’s Family Care Leave, in any inquiry or proceeding related to rights guaranteed under Section 12945.2.
    1. An appointing authority’s obligation to provide Family Care Leave, other than for birth or adoption of a child, resulting in costs incurred by the State shall be contingent upon provision in the Annual Budget Act.
     
  Sec. 6. In adopting the regulations required by Section 12945.2 of the Government Code, as contained in Section 4 of this Act, the Fair Employment and Housing Commission shall consider and specify all of the following:
 
   
  1. The length of time necessary for appropriate advance notice for a leave request submitted pursuant to subdivision (a) of Section 12945.2 of the Government Code.
  2. The appropriate minimum duration of Family Care Leave. This paragraph shall not be construed as permitting an employer to deny a reasonable Family Care Leave request for a period in excess of the appropriate minimum duration for Family Care Leaves.
  3. What would constitute undue hardship for denial of deferral of Family Care Leave.
  4. What accommodation of the employee’s Family Care rights short of granting a leave would be reasonable.
     
  Sec. 7. Within two (2) years of the effective date of this Act, the Legislative Analyst, in consultation with the Secretary of the Business, Transportation and Housing Agency, shall report to the Governor and the Legislature on the impact, if any, of the requirements of this Act, including the costs, benefits, and impact on productivity, of Family Care Leave on employees.
 
  Sec. 8. It is the intent of the Legislature that this Act shall not affect any rights of State employees under Section 19991.6 of the Government Code or Section 89519 of the Education Code.
 
Gavilan College, 5055 Santa Teresa Blvd. Gilroy CA 95020 (408) 848-4888
This page was last updated April 6, 2008.