Differential Pay Will Now Be Available to Certificated School District Employees During Maternity and Paternity Leave Taken Pursuant to the California Family Rights Act – Ed. Code §44977.5 (AB 375) (K-12)

In our November 12, 2015, Legal Update No. 31-2015, we discussed Assembly Bill 375 which provides, effective January 1, 2016, pursuant to Education Code section 44977.5 that certificated employees who are eligible for leave under the California Family Rights Act (“CFRA”) and take “maternity or paternity leave” will be entitled to “differential pay” for up to 12 weeks if they have “…exhausted all available sick leave, including accumulated sick leave, and continues to be absent on account of maternity or paternity leave…” AB 375 further provides “the 12-week period shall be reduced by any period of sick leave, taken during a period of maternity or paternity leave pursuant to [CFRA].

LEGAL UPDATE

February 19, 2016

To:  Superintendents, Member School Districts (K-12)

From: Carl D. Corbin, General Counsel

Subject:  Differential Pay Will Now Be Available to Certificated School District Employees During Maternity and Paternity Leave Taken Pursuant to the California Family Rights Act – Ed. Code §44977.5 (AB 375)         

ADDENDUM to Memo No. 31-2015

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In our November 12, 2015, Legal Update No. 31-2015, we discussed Assembly Bill 375 which provides, effective January 1, 2016, pursuant to Education Code section 44977.5 that certificated employees who are eligible for leave under the California Family Rights Act[1] (“CFRA”) and take “maternity or paternity leave” will be entitled to “differential pay” for up to 12 weeks if they have “…exhausted all available sick leave, including accumulated sick leave, and continues to be absent on account of maternity or paternity leave…”[2]  AB 375 further provides “the 12-week period shall be reduced by any period of sick leave, taken during a period of maternity or paternity leave pursuant to [CFRA].[3]

The purpose of this Addendum is to clarify the use of sick leave and to provide clarity on whether the 12 week CFRA period can be used intermittently.[4]

“Exhausted All Available Sick Leave”

Before January 2, 2016, under the CFRA and through most collective bargaining agreements, sick leave was not available for the purpose of maternity and paternity leave – “baby bonding.”  Under AB 375, it is not clear whether the requirement that an employee have “exhausted all available sick leave” applies to “accumulated sick leave” or to sick leave “available” to the certificated employee.[5]  There have been a variety of legal opinions from various law firms issued on AB 375 interpreting this issue, to include a February 12, 2016, Fiscal Report article from School Services of California. 

Based on a thorough review of this matter, at this time our office believes that AB 375 now allows a certificated employee to use sick leave during the 12 week CFRA “baby bonding” period and, upon exhausting all accumulated sick leave, a certificated employee will receive differential pay for any remaining portion of the 12-week CFRA “baby bonding” period.  However, pursuant to Education Code section 44975.5(d), if your district entered into a collective bargaining agreement prior to January 1, 2016, that specifically addresses “baby bonding” leave and there is a conflict with the AB 375, then AB 375 shall not apply until the renewal or expiration of the collective bargaining agreement.

Our office will continue to watch for any legal opinions from the California Department of Education or other authoritative sources that provide further clarity on the interpretation of this law and SCLS will provide addendum Legal Update(s) as appropriate.

Intermittent Use of 12 Weeks of Maternity/Paternity CFRA Leave

Title 2 of the California Code of Regulations section 11090(d) provides:

(d) Minimum duration for CFRA leaves taken intermittently or on a reduced leave schedule for the birth, adoption, or foster care placement of a child: CFRA leave taken for reason of the birth, adoption, or foster care placement of a child of the employee does not have to be taken in one continuous period of time. Any leave(s) taken shall be concluded within one year of the birth or placement of the child with the employee in connection with the adoption or foster care of the child by the employee. The basic minimum duration of the leave shall be two weeks. However, an employer shall grant a request for a CFRA leave of less than two weeks’ duration on any two occasions and may grant requests for additional occasions of leave lasting less than two weeks.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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