Full Text of SB3239 96th General Assembly
SB3239sam001 96TH GENERAL ASSEMBLY
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Sen. Martin A. Sandoval
Filed: 2/24/2010
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| AMENDMENT TO SENATE BILL 3239
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| AMENDMENT NO. ______. Amend Senate Bill 3239 by replacing | 3 |
| everything after the enacting clause with the following:
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| "ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL
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| REQUIREMENTS FOR LEAVE
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| Section 100. Short title. This Act may be cited as the | 7 |
| Illinois Family and
Medical Leave Act.
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| Section 101. Definitions. As used in this Article:
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| (1) (Blank).
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| (2) Eligible Employee.
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| (A) In General. The term "eligible employee" means an
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| employee who has been employed:
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| (i) for at least 12 months by the employer with
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| respect to whom leave is requested under Section 102; | 15 |
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| (ii) for at least 1,250 hours of service with such
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| employer during the previous 12-month period.
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| (B) Exclusions. The term "eligible employee" does not
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| include:
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| (i) any Federal officer or employee covered under
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| Subchapter V of Chapter 63 of Title 5, United States
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| Code; or
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| (ii) any employee of an employer who is employed at | 9 |
| a
work site at which such employer employs less than 50
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| employees if the total number of employees employed by
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| that employer within 75 miles of that work site is less
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| than 50.
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| (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.
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| (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
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| Standards Act of 1938 (29 U.S.C. 203 (c), (e), and (g)).
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| (4) Employer.
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| (A) In general. The term "employer":
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| (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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| calendar year;
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| (ii) includes:
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| (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
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| (II) any successor in interest of an employer; | 7 |
| and
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| (iii) includes any State officer, department, or | 9 |
| agency, any
unit of local government, and any school | 10 |
| district.
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| (B) (Blank).
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| (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,
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| disability insurance, sick leave, annual leave, educational
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| benefits, and pensions, regardless of whether such benefits are
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| provided by a practice or written policy of an employer or
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| through an "employee benefit plan", as defined in Section 3(3)
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| of the Employee Retirement Income Security Act of 1974 (29
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| U.S.C. 1002(3)).
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| (6) Health care provider. The term "health care provider"
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| means:
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| (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
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| (B) any other person determined by the Director to be
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| capable of providing health care services.
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| (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.
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| (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)).
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| (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.
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| (10) Director. The term "Director" means the Director of
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| Labor.
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| (11) Serious health condition. The term "serious health
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| condition" means an illness, injury, impairment, or physical or
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| mental condition that involves:
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| (A) inpatient care in a hospital, hospice, or | 17 |
| residential
medical care facility; or
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| (B) continuing treatment by a health care provider.
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| (12) Son or daughter. The term "son or daughter" means a
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| biological, adopted, or foster child, a stepchild, a legal
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| ward, or a child of a person standing in loco parentis, who is:
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| (A) under 18 years of age; or
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| (B) 18 years of age or older and incapable of self-care
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| because of a mental or physical disability.
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| (13) Spouse. The term "spouse" means a husband or wife, as
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| the case may be.
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| (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.
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| `(23) Sibling. The term "sibling" means any person who is a | 8 |
| son or daughter of an employee's parent.
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| Section 102. Leave requirement.
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| (a) In general.
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| (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:
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| (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.
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| (B) Because of the placement of a son or daughter | 19 |
| with
the employee for adoption or foster care.
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| (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,
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| parent,
son-in-law, daughter-in-law, father-in-law, | 25 |
| mother-in-law, domestic partner, or sibling
has a |
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| serious health condition.
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| (D) Because of a serious health condition that | 3 |
| makes the
employee unable to perform the functions of | 4 |
| the position of
such employee.
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| (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.
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| (b) Leave taken intermittently or on a reduced leave | 11 |
| schedule.
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| (1) In general. Leave under subparagraph (A) or (B) of
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| subsection (a)(1) shall not be taken by an employee
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| intermittently or on a reduced leave schedule unless the
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| employee and the employer of the employee agree otherwise.
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| Subject to paragraph (2), subsection (e)(2), and Section
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| 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.
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| (2) Alternative position. If an employee requests
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| intermittent leave, or leave on a reduced leave schedule, |
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| under
subparagraph (C) or (D) of subsection (a)(1), that is
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| 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:
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| (A) has equivalent pay and benefits; and
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| (B) better accommodates recurring periods of leave | 8 |
| than
the regular employment position of the employee.
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| (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
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| employer with this Article by providing unpaid leave shall not | 16 |
| affect
the exempt status of the employee under such Section.
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| (d) Relationship to paid leave.
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| (1) Unpaid leave. If an employer provides paid leave | 19 |
| for
fewer than 12 workweeks, the additional weeks of leave
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| necessary to attain the 12 workweeks of leave required | 21 |
| under
this Article may be provided without compensation.
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| (2) Substitution of paid leave.
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| (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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| 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.
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| (B) Serious health condition. An eligible employee | 5 |
| may
elect, or an employer may require the employee, to
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| 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.
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| (e) Foreseeable leave.
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| (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.
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| (2) Duties of employee. In any case in which the | 26 |
| necessity
for leave under subparagraph (C) or (D) of |
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| subsection (a)(1) is
foreseeable based on planned medical | 2 |
| treatment, the employee:
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| (A) shall make a reasonable effort to schedule the
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| 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,
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| son-in-law, daughter-in-law, father-in-law, | 9 |
| mother-in-law, domestic partner, or sibling
of the | 10 |
| employee, as
appropriate; and
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| (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.
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| (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:
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| (1) under subparagraph (A) or (B) of subsection (a)(1); | 24 |
| or
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| (2) to care for a sick parent under subparagraph (C) of | 26 |
| such
subsection.
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| Section 103. Certification.
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| (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.
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| (b) Sufficient certification. Certification provided under
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| subsection (a) shall be sufficient if it states:
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| (1) the date on which the serious health condition | 13 |
| commenced;
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| (2) the probable duration of the condition;
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| (3) the appropriate medical facts within the knowledge | 16 |
| of the
health care provider regarding the condition;
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| (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,
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| son-in-law, daughter-in-law, father-in-law, mother-in-law, | 21 |
| domestic partner, or sibling
and an estimate of the amount
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| of time that such employee is needed to care for the son,
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| 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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| (B) for purposes of leave under Section 102(a)(1)(D), a
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| statement that the employee is unable to perform the | 3 |
| functions
of the position of the employee;
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| (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;
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| (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
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| (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.
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| (c) Second opinion.
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| (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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| 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.
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| (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.
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| (d) Resolution of conflicting opinions.
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| (1) In general. In any case in which the second opinion
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| described in subsection (c) differs from the opinion in the
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| original certification provided under subsection (a), the
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| 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).
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| (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.
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| (e) Subsequent recertification. The employer may require | 24 |
| that the
eligible employee obtain subsequent recertifications | 25 |
| on a
reasonable basis.
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| Section 104. Employment and benefits protection.
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| (a) Restoration to position.
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| (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:
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| (A) to be restored by the employer to the position | 8 |
| of
employment held by the employee when the leave | 9 |
| commenced; or
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| (B) to be restored to an equivalent position with
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| equivalent employment benefits, pay, and other terms | 12 |
| and
conditions of employment.
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| (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.
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| (3) Limitations. Nothing in this Section shall be | 17 |
| construed
to entitle any restored employee to:
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| (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.
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| (4) Certification. As a condition of restoration under
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| 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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| 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.
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| (5) Construction. Nothing in this subsection shall be
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| 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.
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| (b) Exemption concerning certain highly compensated | 14 |
| employees.
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| (1) Denial of restoration. An employer may deny | 16 |
| restoration
under subsection (a) to any eligible employee | 17 |
| described in
paragraph (2) if:
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| (A) such denial is necessary to prevent | 19 |
| substantial and
grievous economic injury to the | 20 |
| operations of the employer;
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| (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
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| (C) in any case in which the leave has commenced, | 26 |
| the
employee elects not to return to employment after |
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| receiving
such notice.
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| (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.
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| (c) Maintenance of health benefits.
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| (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
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| employee had continued in employment continuously for the
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| duration of such leave.
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| (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:
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| (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
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| (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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| a
serious health condition that entitles the | 2 |
| employee to
leave under subparagraph (C) or (D) of | 3 |
| Section
102(a)(1); or
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| (ii) other circumstances beyond the control of | 5 |
| the
employee.
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| (3) Certification.
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| (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:
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| (i) a certification issued by the health care
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| provider of the son, daughter, spouse, parent,
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| son-in-law, daughter-in-law, father-in-law, | 15 |
| mother-in-law, domestic partner, or sibling
of the
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| 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
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| (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
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| condition specified in Section 102(a)(1)(D).
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| (B) Copy. The employee shall provide, in a timely | 24 |
| manner,
a copy of such certification to the employer.
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| (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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LRB096 20461 RLC 37647 a |
|
| 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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LRB096 20461 RLC 37647 a |
|
| 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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LRB096 20461 RLC 37647 a |
|
| 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 |
|
|
|
09600SB3239sam001 |
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LRB096 20461 RLC 37647 a |
|
| 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:
|
|
|
|
09600SB3239sam001 |
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LRB096 20461 RLC 37647 a |
|
| 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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LRB096 20461 RLC 37647 a |
|
| 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)
|
|
|
|
09600SB3239sam001 |
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LRB096 20461 RLC 37647 a |
|
| 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 |
|
|
|
09600SB3239sam001 |
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LRB096 20461 RLC 37647 a |
|
| 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 |
|
|
|
09600SB3239sam001 |
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LRB096 20461 RLC 37647 a |
|
| 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.".
|
|