Sen. Martin A. Sandoval

Filed: 2/24/2010

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3239

2     AMENDMENT NO. ______. Amend Senate Bill 3239 by replacing
3 everything after the enacting clause with the following:
 
4
"ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL
5
REQUIREMENTS FOR LEAVE

 
6     Section 100. Short title. This Act may be cited as the
7 Illinois Family and Medical Leave Act.
 
8     Section 101. Definitions. As used in this Article:
9     (1) (Blank).
10     (2) Eligible Employee.
11         (A) In General. The term "eligible employee" means an
12     employee who has been employed:
13             (i) for at least 12 months by the employer with
14         respect to whom leave is requested under Section 102;
15         and

 

 

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1             (ii) for at least 1,250 hours of service with such
2         employer during the previous 12-month period.
3         (B) Exclusions. The term "eligible employee" does not
4     include:
5             (i) any Federal officer or employee covered under
6         Subchapter V of Chapter 63 of Title 5, United States
7         Code; or
8             (ii) any employee of an employer who is employed at
9         a work site at which such employer employs less than 50
10         employees if the total number of employees employed by
11         that employer within 75 miles of that work site is less
12         than 50.
13         (C) Determination. For purposes of determining whether
14     an employee meets the hours of service requirement
15     specified in subparagraph (A)(ii), the legal standards
16     established under Section 7 of the Fair Labor Standards Act
17     of 1938 (29 U.S.C. 207) shall apply.
18     (3) Employ; Employee; State. The terms "employ",
19 "employee", and "State" have the same meanings given such terms
20 in subsections (c), (e), and (g) of Section 3 of the Fair Labor
21 Standards Act of 1938 (29 U.S.C. 203 (c), (e), and (g)).
22     (4) Employer.
23         (A) In general. The term "employer":
24             (i) means any person who employs 50 or more
25         employees for each working day during each of 20 or
26         more calendar workweeks in the current or preceding

 

 

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1         calendar year;
2             (ii) includes:
3                 (I) any person who acts, directly or
4             indirectly, in the interest of an employer to any
5             of the employees of such employer; and
6                 (II) any successor in interest of an employer;
7             and
8             (iii) includes any State officer, department, or
9         agency, any unit of local government, and any school
10         district.
11         (B) (Blank).
12     (5) Employment benefits. The term "employment benefits"
13 means all benefits provided or made available to employees by
14 an employer, including group life insurance, health insurance,
15 disability insurance, sick leave, annual leave, educational
16 benefits, and pensions, regardless of whether such benefits are
17 provided by a practice or written policy of an employer or
18 through an "employee benefit plan", as defined in Section 3(3)
19 of the Employee Retirement Income Security Act of 1974 (29
20 U.S.C. 1002(3)).
21     (6) Health care provider. The term "health care provider"
22 means:
23         (A) a doctor of medicine or osteopathy who is
24     authorized to practice medicine or surgery (as
25     appropriate) by the State in which the doctor practices; or
26         (B) any other person determined by the Director to be

 

 

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1     capable of providing health care services.
2     (7) Parent. The term "parent" means the biological parent
3 of an employee or an individual who stood in loco parentis to
4 an employee when the employee was a son or daughter.
5     (8) Person. The term "person" has the same meaning given
6 such term in Section 3(a) of the Fair Labor Standards Act of
7 1938 (29 U.S.C. 203(a)).
8     (9) Reduced leave schedule. The term "reduced leave
9 schedule" means a leave schedule that reduces the usual number
10 of hours per workweek, or hours per workday, of an employee.
11     (10) Director. The term "Director" means the Director of
12 Labor.
13     (11) Serious health condition. The term "serious health
14 condition" means an illness, injury, impairment, or physical or
15 mental condition that involves:
16         (A) inpatient care in a hospital, hospice, or
17     residential medical care facility; or
18         (B) continuing treatment by a health care provider.
19     (12) Son or daughter. The term "son or daughter" means a
20 biological, adopted, or foster child, a stepchild, a legal
21 ward, or a child of a person standing in loco parentis, who is:
22         (A) under 18 years of age; or
23         (B) 18 years of age or older and incapable of self-care
24     because of a mental or physical disability.
25     (13) Spouse. The term "spouse" means a husband or wife, as
26 the case may be.

 

 

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1     (14) Domestic partner. The term "domestic partner" means a
2 single, unmarried adult person of the same sex as the employee
3 who is in a committed, intimate relationship with the employee,
4 is not a domestic partner to any other person, and who is
5 designated to the employer by such employee as that employee's
6 domestic partner.
7     `(23) Sibling. The term "sibling" means any person who is a
8 son or daughter of an employee's parent.
 
9     Section 102. Leave requirement.
10     (a) In general.
11         (1) Entitlement to leave. Subject to Section 103, an
12     eligible employee shall be entitled to a total of 12
13     workweeks of leave during any 12-month period for one or
14     more of the following:
15             (A) Because of the birth of a son or daughter of
16         the employee and in order to care for such son or
17         daughter.
18             (B) Because of the placement of a son or daughter
19         with the employee for adoption or foster care.
20             (C) In order to care for the spouse, or a son,
21         daughter, parent, son-in-law, daughter-in-law,
22         father-in-law, mother-in-law, domestic partner, or
23         sibling of the employee, if such spouse, son, daughter,
24         parent, son-in-law, daughter-in-law, father-in-law,
25         mother-in-law, domestic partner, or sibling has a

 

 

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1         serious health condition.
2             (D) Because of a serious health condition that
3         makes the employee unable to perform the functions of
4         the position of such employee.
5         (2) Expiration of entitlement. The entitlement to
6     leave under subparagraphs (A) and (B) of paragraph (1) for
7     a birth or placement of a son or daughter shall expire at
8     the end of the 12-month period beginning on the date of
9     such birth or placement.
10     (b) Leave taken intermittently or on a reduced leave
11 schedule.
12         (1) In general. Leave under subparagraph (A) or (B) of
13     subsection (a)(1) shall not be taken by an employee
14     intermittently or on a reduced leave schedule unless the
15     employee and the employer of the employee agree otherwise.
16     Subject to paragraph (2), subsection (e)(2), and Section
17     103(b)(5), leave under subparagraph (C) or (D) of
18     subsection (a)(1) may be taken intermittently or on a
19     reduced leave schedule when medically necessary. The
20     taking of leave intermittently or on a reduced leave
21     schedule pursuant to this paragraph shall not result in a
22     reduction in the total amount of leave to which the
23     employee is entitled under subsection (a) beyond the amount
24     of leave actually taken.
25         (2) Alternative position. If an employee requests
26     intermittent leave, or leave on a reduced leave schedule,

 

 

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1     under subparagraph (C) or (D) of subsection (a)(1), that is
2     foreseeable based on planned medical treatment, the
3     employer may require such employee to transfer temporarily
4     to an available alternative position offered by the
5     employer for which the employee is qualified and that:
6             (A) has equivalent pay and benefits; and
7             (B) better accommodates recurring periods of leave
8         than the regular employment position of the employee.
9     (c) Unpaid leave permitted. Except as provided in
10 subsection (d), leave granted under subsection (a) may consist
11 of unpaid leave. Where an employee is otherwise exempt under
12 regulations issued by the Secretary of the U.S. Department of
13 Labor pursuant to Section 13(a)(1) of the Fair Labor Standards
14 Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an
15 employer with this Article by providing unpaid leave shall not
16 affect the exempt status of the employee under such Section.
17     (d) Relationship to paid leave.
18         (1) Unpaid leave. If an employer provides paid leave
19     for fewer than 12 workweeks, the additional weeks of leave
20     necessary to attain the 12 workweeks of leave required
21     under this Article may be provided without compensation.
22         (2) Substitution of paid leave.
23             (A) In general. An eligible employee may elect, or
24         an employer may require the employee, to substitute any
25         of the accrued paid vacation leave, personal leave, or
26         family leave of the employee for leave provided under

 

 

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1         subparagraph (A), (B), or (C) of subsection (a)(1) for
2         any part of the 12-week period of such leave under such
3         subsection.
4             (B) Serious health condition. An eligible employee
5         may elect, or an employer may require the employee, to
6         substitute any of the accrued paid vacation leave,
7         personal leave, or medical or sick leave of the
8         employee for leave provided under subparagraph (C) or
9         (D) of subsection (a)(1) for any part of the 12-week
10         period of such leave under such subsection, except that
11         nothing in this Article shall require an employer to
12         provide paid sick leave or paid medical leave in any
13         situation in which such employer would not normally
14         provide any such paid leave.
15     (e) Foreseeable leave.
16         (1) Requirement of notice. In any case in which the
17     necessity for leave under subparagraph (A) or (B) of
18     subsection (a)(1) is foreseeable based on an expected birth
19     or placement, the employee shall provide the employer with
20     not less than 30 days' notice, before the date the leave is
21     to begin, of the employee's intention to take leave under
22     such subparagraph, except that if the date of the birth or
23     placement requires leave to begin in less than 30 days, the
24     employee shall provide such notice as is practicable.
25         (2) Duties of employee. In any case in which the
26     necessity for leave under subparagraph (C) or (D) of

 

 

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1     subsection (a)(1) is foreseeable based on planned medical
2     treatment, the employee:
3             (A) shall make a reasonable effort to schedule the
4         treatment so as not to disrupt unduly the operations of
5         the employer, subject to the approval of the health
6         care provider of the employee or the health care
7         provider of the son, daughter, spouse, parent,
8         son-in-law, daughter-in-law, father-in-law,
9         mother-in-law, domestic partner, or sibling of the
10         employee, as appropriate; and
11             (B) shall provide the employer with not less than
12         30 days' notice, before the date the leave is to begin,
13         of the employee's intention to take leave under such
14         subparagraph, except that if the date of the treatment
15         requires leave to begin in less than 30 days, the
16         employee shall provide such notice as is practicable.
17     (f) Spouses employed by the same employer. In any case in
18 which a husband and wife entitled to leave under subsection (a)
19 are employed by the same employer, the aggregate number of
20 workweeks of leave to which both may be entitled may be limited
21 to 12 workweeks during any 12-month period, if such leave is
22 taken:
23         (1) under subparagraph (A) or (B) of subsection (a)(1);
24     or
25         (2) to care for a sick parent under subparagraph (C) of
26     such subsection.
 

 

 

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1     Section 103. Certification.
2     (a) In general. An employer may require that a request for
3 leave under subparagraph (C) or (D) of Section 102(a)(1) be
4 supported by a certification issued by the health care provider
5 of the eligible employee or of the son, daughter, spouse,
6 parent, son-in-law, daughter-in-law, father-in-law,
7 mother-in-law, domestic partner, or sibling of the employee, as
8 appropriate. The employee shall provide, in a timely manner, a
9 copy of such certification to the employer.
10     (b) Sufficient certification. Certification provided under
11 subsection (a) shall be sufficient if it states:
12         (1) the date on which the serious health condition
13     commenced;
14         (2) the probable duration of the condition;
15         (3) the appropriate medical facts within the knowledge
16     of the health care provider regarding the condition;
17         (4)(A) for purposes of leave under Section
18     102(a)(1)(C), a statement that the eligible employee is
19     needed to care for the son, daughter, spouse, parent,
20     son-in-law, daughter-in-law, father-in-law, mother-in-law,
21     domestic partner, or sibling and an estimate of the amount
22     of time that such employee is needed to care for the son,
23     daughter, spouse, parent, son-in-law, daughter-in-law,
24     father-in-law, mother-in-law, domestic partner, or
25     sibling; and

 

 

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1         (B) for purposes of leave under Section 102(a)(1)(D), a
2     statement that the employee is unable to perform the
3     functions of the position of the employee;
4         (5) in the case of certification for intermittent
5     leave, or leave on a reduced leave schedule, for planned
6     medical treatment, the dates on which such treatment is
7     expected to be given and the duration of such treatment;
8         (6) in the case of certification for intermittent
9     leave, or leave on a reduced leave schedule, under Section
10     102(a)(1)(D), a statement of the medical necessity for the
11     intermittent leave or leave on a reduced leave schedule,
12     and the expected duration of the intermittent leave or
13     reduced leave schedule; and
14         (7) in the case of certification for intermittent
15     leave, or leave on a reduced leave schedule, under Section
16     102(a)(1)(C), a statement that the employee's intermittent
17     leave or leave on a reduced leave schedule is necessary for
18     the care of the son, daughter, parent, spouse, son-in-law,
19     daughter-in-law, father-in-law, mother-in-law, domestic
20     partner, or sibling who has a serious health condition, or
21     will assist in their recovery, and the expected duration
22     and schedule of the intermittent leave or reduced leave
23     schedule.
24     (c) Second opinion.
25         (1) In general. In any case in which the employer has
26     reason to doubt the validity of the certification provided

 

 

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1     under subsection (a) for leave under subparagraph (C) or
2     (D) of Section 102(a)(1), the employer may require, at the
3     expense of the employer, that the eligible employee obtain
4     the opinion of a second health care provider designated or
5     approved by the employer concerning any information
6     certified under subsection (b) for such leave.
7         (2) Limitation. A health care provider designated or
8     approved under paragraph (1) shall not be employed on a
9     regular basis by the employer.
10     (d) Resolution of conflicting opinions.
11         (1) In general. In any case in which the second opinion
12     described in subsection (c) differs from the opinion in the
13     original certification provided under subsection (a), the
14     employer may require, at the expense of the employer, that
15     the employee obtain the opinion of a third health care
16     provider designated or approved jointly by the employer and
17     the employee concerning the information certified under
18     subsection (b).
19         (2) Finality. The opinion of the third health care
20     provider concerning the information certified under
21     subsection (b) shall be considered to be final and shall be
22     binding on the employer and the employee.
23     (e) Subsequent recertification. The employer may require
24 that the eligible employee obtain subsequent recertifications
25 on a reasonable basis.
 

 

 

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1     Section 104. Employment and benefits protection.
2     (a) Restoration to position.
3         (1) In general. Except as provided in subsection (b),
4     any eligible employee who takes leave under Section 102 for
5     the intended purpose of the leave shall be entitled, on
6     return from such leave:
7             (A) to be restored by the employer to the position
8         of employment held by the employee when the leave
9         commenced; or
10             (B) to be restored to an equivalent position with
11         equivalent employment benefits, pay, and other terms
12         and conditions of employment.
13         (2) Loss of benefits. The taking of leave under Section
14     102 shall not result in the loss of any employment benefit
15     accrued prior to the date on which the leave commenced.
16         (3) Limitations. Nothing in this Section shall be
17     construed to entitle any restored employee to:
18             (A) the accrual of any seniority or employment
19         benefits during any period of leave; or
20             (B) any right, benefit, or position of employment
21         other than any right, benefit, or position to which the
22         employee would have been entitled had the employee not
23         taken the leave.
24         (4) Certification. As a condition of restoration under
25     paragraph (1) for an employee who has taken leave under
26     Section 102(a)(1)(D), the employer may have a uniformly

 

 

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1     applied practice or policy that requires each such employee
2     to receive certification from the health care provider of
3     the employee that the employee is able to resume work,
4     except that nothing in this paragraph shall supersede a
5     valid State or local law or a collective bargaining
6     agreement that governs the return to work of such
7     employees.
8         (5) Construction. Nothing in this subsection shall be
9     construed to prohibit an employer from requiring an
10     employee on leave under Section 102 to report periodically
11     to the employer on the status and intention of the employee
12     to return to work.
13     (b) Exemption concerning certain highly compensated
14 employees.
15         (1) Denial of restoration. An employer may deny
16     restoration under subsection (a) to any eligible employee
17     described in paragraph (2) if:
18             (A) such denial is necessary to prevent
19         substantial and grievous economic injury to the
20         operations of the employer;
21             (B) the employer notifies the employee of the
22         intent of the employer to deny restoration on such
23         basis at the time the employer determines that such
24         injury would occur; and
25             (C) in any case in which the leave has commenced,
26         the employee elects not to return to employment after

 

 

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1         receiving such notice.
2         (2) Affected employees. An eligible employee described
3     in paragraph (1) is a salaried eligible employee who is
4     among the highest paid 10 percent of the employees employed
5     by the employer within 75 miles of the facility at which
6     the employee is employed.
7     (c) Maintenance of health benefits.
8         (1) Coverage. Except as provided in paragraph (2),
9     during any period that an eligible employee takes leave
10     under Section 102, the employer shall maintain coverage
11     under any "group health plan" (as defined in Section
12     5000(b)(1) of the Internal Revenue Code of 1986) for the
13     duration of such leave at the level and under the
14     conditions coverage would have been provided if the
15     employee had continued in employment continuously for the
16     duration of such leave.
17         (2) Failure to return from leave. The employer may
18     recover the premium that the employer paid for maintaining
19     coverage for the employee under such group health plan
20     during any period of unpaid leave under Section 102 if:
21             (A) the employee fails to return from leave under
22         Section 102 after the period of leave to which the
23         employee is entitled has expired; and
24             (B) the employee fails to return to work for a
25         reason other than:
26                 (i) the continuation, recurrence, or onset of

 

 

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1             a serious health condition that entitles the
2             employee to leave under subparagraph (C) or (D) of
3             Section 102(a)(1); or
4                 (ii) other circumstances beyond the control of
5             the employee.
6         (3) Certification.
7             (A) Issuance. An employer may require that a claim
8         that an employee is unable to return to work because of
9         the continuation, recurrence, or onset of the serious
10         health condition described in paragraph (2)(B)(i) be
11         supported by:
12                 (i) a certification issued by the health care
13             provider of the son, daughter, spouse, parent,
14             son-in-law, daughter-in-law, father-in-law,
15             mother-in-law, domestic partner, or sibling of the
16             employee, as appropriate, in the case of an
17             employee unable to return to work because of a
18             condition specified in Section 102(a)(1)(C); or
19                 (ii) a certification issued by the health care
20             provider of the eligible employee, in the case of
21             an employee unable to return to work because of a
22             condition specified in Section 102(a)(1)(D).
23             (B) Copy. The employee shall provide, in a timely
24         manner, a copy of such certification to the employer.
25             (C) Sufficiency of certification.
26                 (i) Leave due to serious health condition of

 

 

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1             employee. The certification described in
2             subparagraph (A)(ii) shall be sufficient if the
3             certification states that a serious health
4             condition prevented the employee from being able
5             to perform the functions of the position of the
6             employee on the date that the leave of the employee
7             expired.
8                 (ii) Leave due to serious health condition of
9             family member. The certification described in
10             subparagraph (A)(i) shall be sufficient if the
11             certification states that the employee is needed
12             to care for the son, daughter, spouse, parent,
13             son-in-law, daughter-in-law, father-in-law,
14             mother-in-law, domestic partner, or sibling who
15             has a serious health condition on the date that the
16             leave of the employee expired.
 
17     Section 105. Prohibited Acts.
18     (a) Interference with rights.
19         (1) Exercise of rights. It shall be unlawful for any
20     employer to interfere with, restrain, or deny the exercise
21     of or the attempt to exercise, any right provided under
22     this Article.
23         (2) Discrimination. It shall be unlawful for any
24     employer to discharge or in any other manner discriminate
25     against any individual for opposing any practice made

 

 

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1     unlawful by this Article.
2     (b) Interference with proceedings or inquiries. It shall be
3 unlawful for any person to discharge or in any other manner
4 discriminate against any individual because such individual:
5         (1) has filed any charge, or has instituted or caused
6     to be instituted any proceeding, under or related to this
7     Article;
8         (2) has given, or is about to give, any information in
9     connection with any inquiry or proceeding relating to any
10     right provided under this Article; or
11         (3) has testified, or is about to testify, in any
12     inquiry or proceeding relating to any right provided under
13     this Article.
 
14     Section 106. Investigative authority.
15     (a) In general. To ensure compliance with the provisions of
16 this Article, or any rule or order issued under this Article,
17 the Director shall have, subject to subsection (c), the
18 authority to investigate complaints.
19     (b) Obligation to keep and preserve records. Any employer
20 shall make, keep, and preserve records pertaining to compliance
21 with this Article in accordance with rules adopted by the
22 Director.
23     (c) Required submissions generally limited to an annual
24 basis. The Director shall not under the authority of this
25 Section require any employer or any plan, fund, or program to

 

 

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1 submit to the Director any books or records more than once
2 during any 12-month period, unless the Director has reasonable
3 cause to believe there may exist a violation of this Article or
4 any rule or order issued pursuant to this Article, or is
5 investigating a charge pursuant to Section 107(b).
6     (d) Subpoena powers. For the purposes of any investigation
7 provided for in this Section, the Director shall have the
8 authority to issue subpoenas.
 
9     Section 107. Enforcement.
10     (a) Civil action by employees.
11         (1) Liability. Any employer who violates Section 105
12     shall be liable to any eligible employee affected:
13             (A) for damages equal to:
14                 (i) the amount of:
15                     (I) any wages, salary, employment
16                 benefits, or other compensation denied or lost
17                 to such employee by reason of the violation; or
18                     (II) in a case in which wages, salary,
19                 employment benefits, or other compensation
20                 have not been denied or lost to the employee,
21                 any actual monetary losses sustained by the
22                 employee as a direct result of the violation,
23                 such as the cost of providing care, up to a sum
24                 equal to 12 weeks of wages or salary for the
25                 employee;

 

 

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1                 (ii) the interest on the amount described in
2             clause (i) calculated at the rate of interest on
3             judgments set forth in Section 2-1303 of the Code
4             of Civil Procedure; and
5                 (iii) an additional amount as liquidated
6             damages equal to the sum of the amount described in
7             clause (i) and the interest described in clause
8             (ii), except that if an employer who has violated
9             Section 105 proves to the satisfaction of the court
10             that the act or omission which violated Section 105
11             was in good faith and that the employer had
12             reasonable grounds for believing that the act or
13             omission was not a violation of Section 105, such
14             court may, in the discretion of the court, reduce
15             the amount of the liability to the amount and
16             interest determined under clauses (i) and (ii),
17             respectively; and
18             (B) for such equitable relief as may be
19         appropriate, including employment, reinstatement, and
20         promotion.
21         (2) Right of action. An action to recover the damages
22     or equitable relief prescribed in paragraph (1) may be
23     maintained against any employer (including a public
24     agency) in the circuit court by any one or more employees
25     for and in behalf of:
26             (A) the employees; or

 

 

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1             (B) the employees and other employees similarly
2         situated.
3         (3) Fees and costs. The court in such an action shall,
4     in addition to any judgment awarded to the plaintiff, allow
5     a reasonable attorney's fee, reasonable expert witness
6     fees, and other costs of the action to be paid by the
7     defendant.
8         (4) Limitations. The right provided by paragraph (2) to
9     bring an action by or on behalf of any employee shall
10     terminate:
11             (A) on the filing of a complaint by the Director in
12         an action under subsection (d) in which restraint is
13         sought of any further delay in the payment of the
14         amount described in paragraph (1)(A) to such employee
15         by an employer responsible under paragraph (1) for the
16         payment; or
17             (B) on the filing of a complaint by the Director in
18         an action under subsection (b) in which a recovery is
19         sought of the damages described in paragraph (1)(A)
20         owing to an eligible employee by an employer liable
21         under paragraph (1), unless the action described in
22         subparagraph (A) or (B) is dismissed without prejudice
23         on motion of the Director.
24     (b) Action by the Director.
25         (1) Administrative action. The Director shall receive,
26     investigate, and attempt to resolve complaints of

 

 

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1     violations of Section 105.
2         (2) Civil action. The Director may bring an action in
3     the circuit court to recover the damages described in
4     subsection (a)(1)(A).
5         (3) Sums recovered. Any sums recovered by the Director
6     pursuant to paragraph (2) shall be held in a special
7     deposit account and shall be paid, on order of the
8     Director, directly to each employee affected. Any such sums
9     not paid to an employee because of inability to do so
10     within a period of 3 years shall be deposited into the
11     General Revenue Fund.
12     (c) Limitation.
13         (1) In general. Except as provided in paragraph (2), an
14     action may be brought under this Section not later than 2
15     years after the date of the last event constituting the
16     alleged violation for which the action is brought.
17         (2) Willful violation. In the case of such action
18     brought for a willful violation of Section 105, such action
19     may be brought within 3 years of the date of the last event
20     constituting the alleged violation for which such action is
21     brought.
22         (3) Commencement. In determining when an action is
23     commenced by the Director under this Section for the
24     purposes of this subsection, it shall be considered to be
25     commenced on the date when the complaint is filed.
26     (d) Action for injunction by Director. The circuit court

 

 

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1 shall have jurisdiction, for cause shown, in an action brought
2 by the Director:
3         (1) to restrain violations of Section 105, including
4     the restraint of any withholding of payment of wages,
5     salary, employment benefits, or other compensation, plus
6     interest, found by the court to be due to eligible
7     employees; or
8         (2) to award such other equitable relief as may be
9     appropriate, including employment, reinstatement, and
10     promotion.
 
11     Section 108. Special rules concerning employees of local
12 educational agencies.
13     (a) Application.
14         (1) In general. Except as otherwise provided in this
15     Section, the rights (including the rights under Section
16     104, which shall extend throughout the period of leave of
17     any employee under this Section), remedies, and procedures
18     under this Article shall apply to:
19             (A) any "local educational agency" (as defined in
20         Section 1471(12) of the Elementary and Secondary
21         Education Act of 1965 (20 U.S.C. 2891(12)) and an
22         eligible employee of the agency; and
23             (B) any private elementary or secondary school and
24         an eligible employee of the school.
25         (2) Definitions. For purposes of the application

 

 

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1     described in paragraph (1):
2             (A) Eligible employee. The term "eligible
3         employee" means an eligible employee of an agency or
4         school described in paragraph (1).
5             (B) Employer. The term "employer" means an agency
6         or school described in paragraph (1).
7     (b) Leave does not violate certain other federal laws. A
8 local educational agency and a private elementary or secondary
9 school shall not be in violation of the Individuals with
10 Disabilities Education Act (20 U.S.C. 1400 et seq.), Section
11 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or title
12 VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.),
13 solely as a result of an eligible employee of such agency or
14 school exercising the rights of such employee under this
15 Article.
16     (c) Intermittent leave or leave on a reduced schedule for
17 instructional employees.
18         (1) In general. Subject to paragraph (2), in any case
19     in which an eligible employee employed principally in an
20     instructional capacity by any such educational agency or
21     school requests leave under subparagraph (C) or (D) of
22     Section 102(a)(1) that is foreseeable based on planned
23     medical treatment and the employee would be on leave for
24     greater than 20 percent of the total number of working days
25     in the period during which the leave would extend, the
26     agency or school may require that such employee elect

 

 

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1     either:
2             (A) to take leave for periods of a particular
3         duration, not to exceed the duration of the planned
4         medical treatment; or
5             (B) to transfer temporarily to an available
6         alternative position offered by the employer for which
7         the employee is qualified, and that:
8                 (i) has equivalent pay and benefits; and
9                 (ii) better accommodates recurring periods of
10             leave than the regular employment position of the
11             employee.
12         (2) Application. The elections described in
13     subparagraphs (A) and (B) of paragraph (1) shall apply only
14     with respect to an eligible employee who complies with
15     Section 102(e)(2).
16     (d) Rules applicable to periods near the conclusion of an
17 academic term. The following rules shall apply with respect to
18 periods of leave near the conclusion of an academic term in the
19 case of any eligible employee employed principally in an
20 instructional capacity by any such educational agency or
21 school:
22         (1) Leave more than 5 weeks prior to end of term. If
23     the eligible employee begins leave under Section 102 more
24     than 5 weeks prior to the end of the academic term, the
25     agency or school may require the employee to continue
26     taking leave until the end of such term, if:

 

 

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1             (A) the leave is of at least 3 weeks duration; and
2             (B) the return to employment would occur during the
3         3-week period before the end of such term.
4         (2) Leave less than 5 weeks prior to end of term. If
5     the eligible employee begins leave under subparagraph (A),
6     (B), or (C) of Section 102(a)(1) during the period that
7     commences 5 weeks prior to the end of the academic term,
8     the agency or school may require the employee to continue
9     taking leave until the end of such term, if:
10             (A) the leave is of greater than 2 weeks duration;
11         and
12             (B) the return to employment would occur during the
13         2-week period before the end of such term.
14         (3) Leave less than 3 weeks prior to end of term. If
15     the eligible employee begins leave under subparagraph (A),
16     (B), or (C) of Section 102(a)(1) during the period that
17     commences 3 weeks prior to the end of the academic term and
18     the duration of the leave is greater than 5 working days,
19     the agency or school may require the employee to continue
20     to take leave until the end of such term.
21     (e) Restoration to equivalent employment position. For
22 purposes of determinations under Section 104(a)(1)(B)
23 (relating to the restoration of an eligible employee to an
24 equivalent position), in the case of a local educational agency
25 or a private elementary or secondary school, such determination
26 shall be made on the basis of established school board policies

 

 

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1 and practices, private school policies and practices, and
2 collective bargaining agreements.
3     (f) Reduction of the amount of liability. If a local
4 educational agency or a private elementary or secondary school
5 that has violated this Article proves to the satisfaction of
6 the court that the agency, school, or department had reasonable
7 grounds for believing that the underlying act or omission was
8 not a violation of this Article, such court may, in the
9 discretion of the court, reduce the amount of the liability
10 provided for under Section 107(a)(1)(A) to the amount and
11 interest determined under clauses (i) and (ii), respectively,
12 of such Section.
 
13     Section 109. Notice.
14     (a) In general. Each employer shall post and keep posted,
15 in conspicuous places on the premises of the employer where
16 notices to employees and applicants for employment are
17 customarily posted, a notice, to be prepared or approved by the
18 Director, setting forth excerpts from, or summaries of, the
19 pertinent provisions of this Article and information
20 pertaining to the filing of a charge.
21     (b) Penalty. Any employer that willfully violates this
22 Section may be assessed a civil money penalty not to exceed
23 $100 for each separate offense.
 
24
ARTICLE II. (BLANK)

 

 

 

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1
ARTICLE III. (BLANK)

 
2
ARTICLE IV. MISCELLANEOUS PROVISIONS

 
3     Section 401. Effect on other laws.
4     (a) Federal and State antidiscrimination laws. Nothing in
5 this Act shall be construed to modify or affect any federal or
6 State law prohibiting discrimination on the basis of race,
7 religion, color, national origin, sex, age, or disability.
8     (b) State and local laws. Nothing in this Act shall be
9 construed to supersede any provision of any State or local law
10 that provides greater family or medical leave rights than the
11 rights established under this Act.
 
12     Section 402. Effect on existing employment benefits.
13     (a) More protective. Nothing in this Act shall be construed
14 to diminish the obligation of an employer to comply with any
15 collective bargaining agreement or any employment benefit
16 program or plan that provides greater family or medical leave
17 rights to employees than the rights established under this Act.
18     (b) Less protective. The rights established for employees
19 under this Act shall not be diminished by any collective
20 bargaining agreement or any employment benefit program or plan.
 
21     Section 403. Encouragement of more generous leave

 

 

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1 policies. Nothing in this Act shall be construed to discourage
2 employers from adopting or retaining leave policies more
3 generous than any policies that comply with the requirements
4 under this Act.
 
5     Section 404. Rules. The Director shall prescribe such
6 rules as are necessary to carry out this Act not later than 120
7 days after the effective date of this Act.
 
8     Section 404.1. Applicability; coordination.
9     (1) In the case of a collective bargaining agreement in
10 effect on the effective date of this Act, Article I shall apply
11 on the earlier of:
12         (A) the date of the termination of such agreement; or
13         (B) the date that occurs 12 months after the effective
14     date of this Act.
15     (2) Nothing in this Act shall be construed to limit the
16 applicability of the federal Family and Medical Leave Act of
17 1993 with regard to employers and employees covered by that
18 Act.
19     (3) In the case of leave that is subject to the federal
20 Family and Medical Leave Act of 1993:
21         (A) the 12-month period during which 12 workweeks of
22     leave may be taken under this Act shall run concurrently
23     with the 12-month period under the federal Family and
24     Medical Leave Act of 1993, and shall commence the date

 

 

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1     leave taken under the federal Family and Medical Leave Act
2     of 1993 commences; and
3         (B) leave taken under this Act shall run concurrently
4     with leave taken under the federal Family and Medical Leave
5     Act of 1993.
6     (4) The aggregate amount of leave taken under this Act or
7 the federal Family and Medical Leave Act of 1993, or both,
8 shall not exceed 12 workweeks in a 12-month period.
 
9     Section 405. Effective date. This Act takes effect 6 months
10 after it becomes law.".