Rep. Mary E. Flowers

Filed: 4/19/2016





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2    AMENDMENT NO. ______. Amend House Bill 166, AS AMENDED, by
3replacing everything after the enacting clause with the
5    "Section 1. Short title. This Act may be cited as the Paid
6Family Leave Act.
7    Section 5. Declaration of policy and intent.
8    (a) It is the public policy of this State to protect
9working families against the economic hardship caused by the
10need to take time off from work to care for family members who
11are incapable of self-care, including newborn and newly adopted
12children. The growing portion of middle-income families in
13which all adult family members work, largely due to economic
14necessity, points to the desperate need for replacement income
15when a working family member must take time to care for family
16members who are unable to take care of themselves.



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1    Moreover, many women are single mothers or the primary
2breadwinners for their families. If any of these women take an
3unpaid maternity leave, her whole family, and Illinois,
5    The United States is the only industrialized nation in the
6world that does not have a mandatory workplace-based program
7for such income support.
8    It is therefore desirable and necessary to develop systems
9that help families adapt to the competing interests of work and
10home which not only benefit workers, but also benefit employers
11by reducing employee turnover and increasing worker
13    (b) It is the intent of the General Assembly to create a
14family leave program to relieve the serious menace to health,
15morals, and welfare of Illinois families, to increase workplace
16productivity, and to alleviate the enormous and growing stress
17on working families of balancing the demands of work and family
19    Section 10. Definitions. In this Act:
20    (1)(A) "Average weekly wage" means the amount derived by
21dividing a covered employee's total wages earned from the
22employee's most recent covered employer during the base weeks
23in the 8 calendar weeks immediately preceding the calendar week
24in which a period of family leave commenced by the number of
25such base weeks.



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1    (B) If the computation in paragraph (A) yields a result
2that is less than the employee's average weekly earnings in
3employment with all covered employers during the base weeks in
4such 8 calendar weeks, then the average weekly wage shall be
5computed on the basis of earnings from all covered employers
6during the base weeks in the 8 calendar weeks immediately
7preceding the week in which the period of family leave
9    (C) For periods of family leave, if the computations in
10paragraphs (A) and (B) both yield a result which is less than
11the employee's average weekly earnings in employment with all
12covered employers during the base weeks in the 26 calendar
13weeks immediately preceding the week in which the period of
14family leave commenced, then the average weekly wage shall,
15upon a written request to the Department by the employee on a
16form provided by the Department, be computed by the Department
17on the basis of earnings from all covered employers of the
18employee during the base weeks in those 26 calendar weeks.
19    (2) "Base hours" means the hours of work for which an
20employee receives compensation. "Base hours" includes overtime
21hours for which the employee is paid additional or overtime
22compensation and hours for which the employee receives workers'
23compensation benefits. "Base hours" also includes hours an
24employee would have worked except for having been in military
25service. At the option of the employer, "base hours" may
26include hours for which the employee receives other types of



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1compensation, such as administrative, personal leave, vacation
2or sick leave.
3    (3) "Base salary" means the salary paid to an employee,
4excluding overtime and bonuses, but not excluding salary
5withheld for State, federal, and local taxes, FICA, and
6employee contributions to any pension or health or other
7insurance plans or programs.
8    (4) "Care" includes, but is not limited to, physical care,
9emotional support, visitation, arranging for a change in care,
10assistance with essential daily living matters, and personal
11attendant services.
12    (5) "Child" means a biological, adopted, or foster child,
13stepchild, or legal ward of an eligible employee, child of a
14domestic partner of the eligible employee, or child of a civil
15union partner of the eligible employee, who is less than 19
16years of age or is 19 years of age or older, but incapable of
17self-care because of a mental or physical impairment.
18    (6) "Civil union" means a civil union as defined in the
19Illinois Religious Freedom Protection and Civil Union Act.
20    (7) "Consecutive leave" means leave that is taken without
21interruption based upon an employee's regular work schedule and
22does not include breaks in employment in which an employee is
23not regularly scheduled to work. For example, when an employee
24is normally scheduled to work from September through June and
25is not scheduled to work during July and August, a leave taken
26continuously during May, June, and September shall be



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1considered a consecutive leave.
2    (8) "Department" means the Department of Employment
4    (9) "Director" means the Director of Employment Security
5and any transaction or exercise of authority by the Director
6shall be deemed to be performed by the Department.
7    (10) "Eligible employee" means an employee employed by the
8same employer, as defined in paragraph (11), in the State of
9Illinois for 12 months or more who has worked 1,000 or more
10base hours during the preceding 12-month period. An employee is
11considered to be employed in the State of Illinois if:
12        (A) the employee works in Illinois; or
13        (B) the employee routinely performs some work in
14    Illinois and the employee's base of operations or the place
15    from which the work is directed and controlled is in
16    Illinois.
17    (11) "Employer" means any partnership, association, trust,
18estate, joint-stock company, insurance company, or
19corporation, whether domestic or foreign, or the receiver,
20trustee in bankruptcy, trustee, or person that has in its
21employ one or more employees performing services for it within
22this State. "Employer" also includes any employer subject to
23the Unemployment Insurance Act, except the State, its political
24subdivisions, and any instrumentality of the State. All
25employees performing services within this State for any
26employing unit that maintains 2 or more separate establishments



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1within this State shall be deemed to be employed by a single
2employing unit for all purposes of this Act.
3    (12) "Family member" means a child, spouse, party to a
4civil union, or parent of an eligible employee.
5    (13) "Family leave" means leave taken by an eligible
6employee from work with an employer: (A) to participate in the
7providing of care, including physical or psychological care,
8for the employee or a family member of the eligible employee
9made necessary by a serious health condition of the family
10member; (B) to be with a child during the first 12 months after
11the child's birth, if the employee, or the party to a civil
12union with the employee, is a biological parent of the child,
13or the first 12 months after the placement of the child for
14adoption or foster care with the employee; (C) for the
15employee's own serious condition; or (D) because of any
16qualifying exigency as interpreted under the Family and Medical
17Leave Act of 1993 (29 U.S.C. 2612(a)(1)(E) and 29 CFR 825.126)
18arising out of the fact that the spouse, domestic partner,
19child, or parent of the employee is on active duty (or has been
20notified of an impending call or order to active duty) in the
21armed forces as of the United States. "Family leave" does not
22include any period of time during which an eligible employee is
23paid benefits pursuant to the Workers' Compensation Act or the
24Unemployment Insurance Act because the employee is unable to
25perform the duties of the employee's employment due to the
26employee's own disability.



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1    (14) "Family leave benefits" means any payments that are
2payable to an eligible employee for all or part of a period of
3family leave.
4    (15) "Health care provider" means any person licensed under
5federal, State, or local law or the laws of a foreign nation to
6provide health care services or any other person who has been
7authorized to provide health care by a licensed health care
9    (16) "Intermittent leave" means a non-consecutive leave
10consisting of intervals, each of which is at least one, but
11less than 12, weeks within a consecutive 12-month period.
12    (17) "Parent of an eligible employee" means a biological
13parent, foster parent, adoptive parent, or stepparent of the
14eligible employee or a person who was a legal guardian of the
15eligible employee when the eligible employee was a child.
16    (18) "Placement for adoption" means the time when an
17eligible employee adopts a child or becomes responsible for a
18child pending adoption by the eligible employee.
19    (19) "Serious health condition" means an illness, injury,
20impairment, or physical or mental condition that requires
21inpatient care in a hospital, hospice, or residential medical
22care facility or continuing medical treatment or continuing
23supervision by a health care provider.
24    (20) "12-month period" means, with respect to an employee
25who establishes a valid claim for family leave benefits during
26a period of family leave, the 365 consecutive days that begin



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1with the first day that the employee first establishes the
3    (21) "Wages" means all compensation payable by employers to
4eligible employees for personal services including
5commissions, bonuses, and the cash value of all compensation
6payable in any medium other than cash.
7    Section 15. Family leave program.
8    (a) Subject to appropriation, the Department shall
9establish and administer a family leave program.
10    (b) The Department shall establish procedures and forms for
11filing claims for benefits under this Act.
12    (c) The Department shall use information sharing and
13integration technology to facilitate the disclosure of
14relevant information or records by the Department of Employment
15Security, so long as an individual consents to the disclosure
16as required under Section 20 of this Act.
17    (d) Information contained in the files and records
18pertaining to an employee under this Act is confidential and
19not open to public inspection, other than to public employees
20in the performance of their official duties. However, the
21employee or an authorized representative of an employee may
22review the records or receive specific information from the
23records on the presentation of the signed authorization of the
24employee. An employer or the employer's duly authorized
25representative may review the records of an employee employed



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1by the employer in connection with a pending claim. At the
2Department's discretion, other persons may review records when
3such persons are rendering assistance to the Department at any
4stage of the proceedings on any matter pertaining to the
5administration of this Act.
6    An employer must keep at its place of business records of
7employment from which the information needed by the Department
8for purposes of this Act may be obtained. The records shall at
9all times be open to the inspection of the Department pursuant
10to rules adopted by the Department.
11    (e) The Department shall develop and implement an outreach
12program to ensure that individuals who may be eligible to
13receive family leave benefits under this Act are made aware of
14these benefits. Outreach information shall explain, in an easy
15to understand format, eligibility requirements, the claims
16process, weekly benefit amounts, maximum benefits payable,
17notice requirements, reinstatement and nondiscrimination
18rights, confidentiality, and coordination of leave under this
19Act and other laws, collective bargaining agreements, and
20employer policies. Outreach information shall be available in
21English and in languages other than English that are spoken as
22a primary language by a significant portion of the State's
23population, as determined by the Department.
24    Section 20. Eligibility for benefits.
25    (a) Family leave benefits are payable under the family



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1leave program to an employee during a period in which the
2employee is on unpaid family leave if the employee does all of
3the following:
4        (1) Takes family leave as defined in Section 10.
5        (2) Files a claim for family leave benefits as required
6    by rules adopted by the Department.
7        (3) Establishes that the employee has been employed for
8    at least 1,000 hours in employment during the employee's
9    qualifying year.
10        (4) Establishes an application year. An application
11    year may not be established if the qualifying year includes
12    hours worked before establishment of a previous
13    application year.
14        (5) Consents to the disclosure of information or
15    records deemed private and confidential by State and
16    federal laws. Further disclosure of this information or
17    these records is subject to subsection (c) of Section 15 of
18    this Act.
19        (6) Discloses whether or not he or she owes child
20    support obligations as defined in subsection (B) of Section
21    1300 of the Unemployment Insurance Act.
22        (7) Documents that he or she has provided the employer
23    from whom family leave is to be taken with written notice
24    of the employee's intention to take family leave as
25    provided in Section 75.
26    (b) The Department may require that a claim for family



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1leave benefits under this Section be supported by a
2certification issued by a health care provider who is providing
3care to the employee's family member if applicable.
4    (c) An employee is not eligible for family leave benefits
5under this Section for any week for which the employee receives
6paid family leave. If an employer provides paid family leave,
7the employee may elect whether first to use the paid family
8leave or to receive family leave benefits under this Section.
9An employee may not be required to use paid family leave to
10which the employee is entitled before receiving family leave
11benefits under this Section.
12    (d) This Section does not limit an employee's right to take
13leave from employment under other laws or employer policy.
14    (e) The eligibility of an employee for benefits is not
15affected by a strike or lockout at the factory, establishment,
16or other premises at which the employee is or was last
18    (f) An employee who has received benefits under this
19Section may not lose any other employment benefits, including
20seniority or pension rights, accrued before the date that
21family leave commenced. However, this Section does not entitle
22an employee to accrue employment benefits during a period of
23family leave or to a right, benefit, or position of employment
24other than a right, benefit, or position to which the employee
25would have been entitled had the employee not taken family



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1    (g) This Section does not diminish an employer's obligation
2to comply with a collective bargaining agreement or an
3employment benefits program or plan that provides greater
4benefits to employees than the benefits provided under this
6    (h) An agreement by an employee to waive the employee's
7rights under this Section is void as contrary to public policy.
8The benefits under this Section may not be diminished by a
9collective bargaining agreement or another employment benefits
10program or plan entered into or renewed after the effective
11date of this Act.
12    (i) This Section does not create a continuing entitlement
13or contractual right.
14    Section 25. Disqualification from benefits.
15    (a) An employee is disqualified from family leave benefits
16under this Act if the employee:
17        (1) willfully makes a false statement or
18    misrepresentation regarding a material fact, or willfully
19    fails to disclose a material fact, to obtain benefits;
20        (2) seeks benefits based on an intentionally
21    self-inflicted serious health condition; or
22        (3) seeks benefits based on a serious health condition
23    that resulted from the employee's commission of a felony.
24    (b) A disqualification for family leave benefits is for a
25period of 2 years, and commences on the first day of the



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1calendar week in which the employee filed a claim for benefits
2under this Act. An employee who is disqualified for benefits is
3liable to the Department for a penalty in an amount equal to
415% of the amount of benefits received by the employee.
5    Section 30. State Benefits Fund.
6    (a) The State Benefits Fund is created as a special fund in
7the State treasury. Subject to appropriation, moneys in the
8Fund may be used for the payment of family leave benefits and
9for the administration of this Act. All interest and other
10earnings that accrue from investment of moneys in the Fund
11shall be credited to the Fund.
12    (b) There is imposed a tax upon employees in the amount of
130.3% of wages as defined in Section 235 of the Unemployment
14Insurance Act. The Department shall by rule provide for the
15collection of this tax.
16    The amount of the tax imposed under this Section, less
17refunds authorized by this Act, and all assessments and
18penalties collected under this Act shall be deposited into and
19credited to the Fund.
20    (c) A separate account, to be known as the Administration
21Account, shall be maintained in the Fund. An amount determined
22by the Treasurer sufficient for proper administration, not to
23exceed, however, 0.1% of wages as defined in this Section,
24shall be credited to the Administration Account. The expenses
25of the Treasurer in administering the Fund and its accounts



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1shall be charged against the Administration Account. The costs
2of administration of this Act shall be charged to the
3Administration Account.
4    (d) A separate account, to be known as the Family Leave
5Benefits Account, shall be maintained in the Fund. The account
6shall be charged with all benefit payments. Prior to July 1 of
7each calendar year, the Department shall determine the average
8rate of interest and other earnings on all investments of the
9Fund for the preceding calendar year. If there is an
10accumulated deficit in the Family Leave Benefits Account in
11excess of $200,000 at the end of any calendar year after
12interest and other earnings have been credited as provided in
13this Section, the Director shall determine the ratio of the
14deficit to the total of all taxable wages paid during the
15preceding calendar year and shall make an assessment against
16all employers in an amount equal to the taxable wages paid by
17them during the preceding calendar year to employees,
18multiplied by the ratio, but in no event shall any such
19assessment exceed 0.1% of such wages. The amounts shall be
20collectible by the Department in the same manner as provided
21for the collection of employer contributions under the
22Unemployment Insurance Act. In making this assessment, the
23Department shall furnish to each affected employer a brief
24summary of the determination of the assessment. The amount of
25such assessments collected by the Department shall be credited
26to the Family Leave Benefits Account. As used in this Section,



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1"wages" means wages as provided in Section 235 of the
2Unemployment Insurance Act.
3    (e) A board of trustees, consisting of the State Treasurer,
4the Secretary of State, the Director of Labor, the Director of
5Employment Security, and the State Comptroller, is hereby
6created. The board shall invest and reinvest all moneys in the
7Fund in excess of its cash requirements in obligations legal
8for savings banks.
9    Section 35. Compensation for family leave.
10    (a) An individual's weekly benefit rate shall be two-thirds
11of his or her average weekly wage, subject to a maximum of 53%
12of the Statewide average weekly wage paid to workers by
13employers, as determined pursuant to Section 401 of the
14Unemployment Insurance Act, provided, however, that the
15individual's benefit rate shall be computed to the next lower
16multiple of $1 if not already a multiple thereof. The amount of
17benefits for each day of family leave for which benefits are
18payable shall be one-seventh of the corresponding weekly
19benefit amount; provided that the total benefits for a
20fractional part of a week shall be computed to the next lower
21multiple of $1 if not already a multiple thereof.
22    (b) With respect to any period of family leave and while an
23individual is an eligible employee, family benefits not in
24excess of the individual's maximum benefits shall be payable
25with respect to the first day of leave taken after the first



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1one-week period following the commencement of the period of
2family leave and each subsequent day of family leave during
3that period of family leave; and if benefits become payable on
4any day after the first 3 weeks in which leave is taken, then
5benefits shall also be payable with respect to any leave taken
6during the first one-week period in which leave is taken. The
7maximum total benefits payable to any eligible individual
8commencing on or after the effective date of this Act shall be
96 times the individual's weekly benefit amount or one-third of
10his or her total wages in his or her base year, whichever is
11the lesser; provided that the maximum amount shall be computed
12in the next lower multiple of $1 if not already a multiple
14    (c) All of the family leave benefits paid to an eligible
15employee during a period of family leave with respect to any
16one birth or adoption shall be for a single continuous period
17of time, except that the employer of the eligible employee may
18permit the eligible employee to receive the family leave
19benefits during non-consecutive weeks in a manner mutually
20agreed to by the employer and the eligible employee and
21disclosed to the Department by the employer.
22    (d) Nothing in this Act shall be construed to prohibit the
23establishment by an employer, without approval by the
24Department, of a supplementary plan or plans providing for the
25payment to employees, or to any class or classes of employees,
26of benefits in addition to the benefits provided by this Act or



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1to prohibit the collection or receipt of additional voluntary
2contributions from employees toward the cost of the additional
3benefits. The rights, duties, and responsibilities of all
4interested parties under the supplementary plans shall be
5unaffected by any provision of this Act.
6    Section 45. Hearings. A person aggrieved by a decision of
7the Department under this Act may request a hearing. The
8Department shall adopt rules governing hearings and the
9issuance of final orders under this Act in accordance with the
10provisions of the Illinois Administrative Procedure Act. All
11final administrative decisions of the Department under this Act
12are subject to judicial review under the Administrative Review
14    Section 50. Prohibited acts. No employer, temporary
15employment agency, employment agency, employee organization,
16or other person shall discharge, expel, or otherwise
17discriminate against a person because the person has filed or
18communicated to the employer an intent to file a claim, a
19complaint, or an appeal or has testified or is about to testify
20or has assisted in any proceeding, under this Act, at any time.
21    Section 55. Penalties.
22    (a) A person who makes a false statement or representation,
23knowing it to be false, or knowingly fails to disclose a



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1material fact to obtain or increase any family leave benefit
2during a period of family leave, either for himself or herself
3or for any other person, shall be liable for a civil penalty of
4$250 to be paid to the Department. Each such false statement or
5representation or failure to disclose a material fact shall
6constitute a separate offense. Upon refusal to pay such civil
7penalty, the civil penalty shall be recovered in a civil action
8by the Attorney General on behalf the Department in the name of
9the State of Illinois. If, in any case in which liability for
10the payment of a civil penalty has been determined, any person
11who has received any benefits under this Act by reason of the
12making of such false statements or representations or failure
13to disclose a material fact shall not be entitled to any
14benefits under this Act for any leave occurring prior to the
15time he or she has discharged his or her liability to pay the
16civil penalty.
17    (b) A person who willfully violates any provision of this
18Act or any rule adopted under this Act for which a civil
19penalty is neither prescribed in this Act nor provided by any
20other applicable law shall be subject to a civil penalty of
21$500 to be paid to the Department. Upon the refusal to pay such
22civil penalty, the civil penalty shall be recovered in a civil
23action by the Attorney General on behalf of the Department in
24the name of the State of Illinois.
25    (c) A person, employing unit, employer, or entity violating
26any provision of this Section with intent to defraud the



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1Department is guilty of a Class C misdemeanor. The fine upon
2conviction shall be payable to the Fund. Any penalties imposed
3by this subsection shall be in addition to those otherwise
4prescribed in this Section.
5    Section 70. Leave and employment protection.
6    (a) During a period in which an employee receives family
7leave benefits or earns waiting period credits under this Act,
8the employee is entitled to family leave and, at the
9established ending date of leave, to be restored to a position
10of employment with the employer from whom leave was taken as
11provided under subsection (b).
12    (b) Except as provided in subsection (f), an employee who
13receives family leave benefits under this Act for the intended
14purpose of the family leave is entitled, on return from the
16        (1) to be restored by the employer to the position of
17    employment held by the employee when the family leave
18    commenced; or
19        (2) to be restored to an equivalent position with
20    equivalent employment benefits, pay, and other terms and
21    conditions of employment at a workplace within 20 miles of
22    the employee's workplace when the family leave commenced.
23    (c) The taking of family leave under this Act may not
24result in the loss of any employment benefits accrued before
25the date on which the family leave commenced.



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1    (d) Nothing in this Section entitles a restored employee
3        (1) the accrual of any seniority or employment benefits
4    during any period of family leave; or
5        (2) any right, benefit, or position of employment other
6    than any right, benefit, or position to which the employee
7    would have been entitled to had the employee not taken the
8    family leave.
9    (e) Nothing in this Section prohibits an employer from
10requiring an employee on family leave to report periodically to
11the employer on the status and intention of the employee to
12return to work.
13    (f) An employer may deny restoration under subsection (b)
14to a salaried employee who is among the highest paid 10% of the
15employees employed by the employer within 75 miles of the
16facility at which the employee is employed if:
17        (1) denial is necessary to prevent substantial and
18    grievous economic injury to the operations of the employer;
19        (2) the employer notifies the employee of the intent of
20    the employer to deny restoration on such basis at the time
21    the employer determines that the injury would occur; and
22        (3) the family leave has commenced and the employee
23    elects not to return to employment after receiving the
24    notice.
25    (g) This Section applies to an employee only if:
26        (1) the employer from whom the employee takes family



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1    leave employs more than 50 employees; and
2        (2) the employee has been employed for at least 12
3    months by that employer, and for at least 1,250 hours of
4    service with that employer during the previous 12-month
5    period.
6    Section 75. Notice to employer.
7    (a) If the necessity for family leave for the birth or
8placement of a child is foreseeable based on an expected birth
9or placement, the employee shall provide the employer with not
10less than 30 days' notice, before the date the leave is to
11begin, of the employee's intention to take leave for the birth
12or placement of a child, except that if the date of the birth
13or placement requires leave to begin in less than 30 days, the
14employee shall provide such notice as is practicable.
15    (b) If the necessity for family leave for a family member's
16serious health condition is foreseeable based on planned
17medical treatment, the employee:
18        (1) must make a reasonable effort to schedule the
19    treatment so as not to disrupt unduly the operations of the
20    employer; and
21        (2) must provide the employer with not less than 30
22    days' notice, before the date the leave is to begin, of the
23    employee's intention to take leave for a family member's
24    serious health condition, except that if the date of the
25    treatment requires leave to begin in less than 30 days, the



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1    employee must provide such notice as is practicable.
2    Section 80. Employment by same employer. If spouses who are
3entitled to leave under this Act are employed by the same
4employer, the employer may require that spouses not take such
5leave concurrently.
6    Section 85. Coordination of leave.
7    (a) Family leave taken under this Act must be taken
8concurrently with any leave taken under the federal Family and
9Medical Leave Act of 1993.
10    (b) An employer may require that family leave taken under
11this Act be taken concurrently or otherwise coordinated with
12leave allowed under the terms of a collective bargaining
13agreement or employer policy, as applicable, for the birth or
14placement of a child. The employer must give his or her
15employees written notice of this requirement.
16    Section 90. Rules. The Department may adopt any rules
17necessary to implement the provisions of this Act. In adopting
18rules, the Department shall maintain consistency with the
19regulations adopted to implement the federal Family and Medical
20Leave Act of 1993 to the extent such regulations are not in
21conflict with this Act.
22    Section 100. Authority to contract. The Department may



09900HB0166ham006- 23 -LRB099 00218 JLS 47831 a

1contract or enter into interagency agreements with other State
2agencies for the initial administration of the Family Leave
4    Section 175. Severability. The provisions of this Act are
5severable under Section 1.31 of the Statute on Statutes.
6    Section 900. The State Finance Act is amended by adding
7Section 5.875 as follows:
8    (30 ILCS 105/5.875 new)
9    Sec. 5.875. The State Benefits Fund.
10    Section 999. Effective date. This Act takes effect upon
11becoming law.".