October 5, 2016
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:
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.