HB3532 101ST GENERAL ASSEMBLY

LRB101 10634 JLS 55740 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3532

Introduced , by Rep. Anne Stava-Murray

SYNOPSIS AS INTRODUCED:

New Act

Creates the Family and Medical Leave Act. Sets forth requirements for family and medical leave to be provided to employees in Illinois. Applies to employers employing more that 20 employees. Provides for 16 workweeks of family leave for the birth of a child, placement of a child for adoption or foster care, or the care of a family member who has a serious health condition. Provides for administration by the Department of Labor. Authorizes enforcement by the Attorney General. Effective July 1, 2020.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Family and Medical Leave Act.

Section 5. Definitions: In this Act:

"Department" means the Department of Labor.

"Employee" means any individual who has been employed by the same employer for one year without a break in service except for regular holiday, sick, or personal leave granted by the employer and has worked at least 1000 hours during the 12-month period immediately preceding the request for family or medical leave.

"Employer" means an individual, partnership, corporation, association, business, trust, person, or entity for whom employees are gainfully employed in Illinois and includes the State of Illinois, any State officer, department, or agency, any unit of local government, and any school district.

"Employment benefit" means any benefit, other than salary or wages, provided or made available to an employee by an employer, including, but not limited to, group life, health, and disability insurance, sick and annual leave, and educational and pension benefits, regardless of whether the benefit is provided by a policy or practice of an employer or by an employee welfare benefit plan as defined in Title 1, subtitle A, Section 3(3) of the Employee Retirement Income Security Act of 1974, 88 Stat. 833; 29 U.S.C. 1002(1).

"Family member" means:

(A) A person to whom the employee is related by blood, legal custody, or marriage;

(B) A child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility;

(C) A person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship; or

(D) A foster child.

"Health care provider" means any person licensed under federal, state, or District law to provide health care services.

"Reduced leave schedule" means leave scheduled for a fewer number of hours than an employee usually works during each workweek or workday.

"Serious health condition" means a physical or mental illness, injury, or impairment that involves:

(A) Inpatient care in a hospital, hospice, or residential health care facility; or

(B) Continuing treatment or supervision at home by a health care provider or other competent individual.

Section 10. Family leave requirement.

(a) An employee shall be entitled to a total of 16 workweeks of family leave during any 24-month period for:

(1) The birth of a child of the employee;

(2) The placement of a child with the employee for adoption or foster care;

(3) The placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility; or

(4) The care of a family member of the employee who has a serious health condition.

(b) The entitlement to family leave under paragraphs (1) through (3) of subsection (a) shall expire 12 months after the birth of the child or placement of the child with the employee.

(c) Subject to the requirements of subsection (h), in the case of a family member who has a serious health condition, the family leave may be taken intermittently when medically necessary.

(d) Upon agreement between the employer and the employee, family leave may be taken on a reduced leave schedule, during which the 16 workweeks of family leave may be taken over a period not to exceed 24 consecutive workweeks.

(e)(1) Except as provided in paragraphs (2) and (3) of this subsection, family leave may consist of unpaid leave.

(2) Any paid family, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for family leave shall count against the 16 workweeks of allowable family leave provided in this Act.

(3) If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions, and the conditions have been met, the employee may use the paid leave as family leave and the leave shall count against the 16 workweeks of family leave provided in this Act.

(4) Nothing in this Section shall require an employer to provide paid family leave.

(f) If the necessity for leave under this Section is foreseeable based on an expected birth or placement of a child with an employee, the employee shall provide the employer with reasonable prior notice of the expected birth or placement of a child with the employee.

(g) If the necessity for family leave under this Section is foreseeable based on planned medical treatment or supervision, an employee shall:

(1) provide the employer with reasonable prior notice of the medical treatment or supervision; and

(2) make a reasonable effort to schedule the medical treatment or supervision, subject to the approval of the health care provider of the employee or family member, in a manner that does not disrupt unduly the operations of the employer.

(h)(1) If 2 family members are employees of the same employer:

(A) the employer may limit to 16 workweeks during a 24-month period the aggregate number of family leave workweeks to which the family members are entitled; and

(B) the employer may limit to 4 workweeks during a 24-month period the aggregate number of family leave workweeks to which the family members are entitled to take simultaneously.

(2) In this subsection, the term "same employer" includes an office, division, subdivision, or other organizational Section of an employer in which both employees have the same or interrelated duties and the absence of both employees would disrupt unduly the conduct of the employer's business.

(i)(1) Information that an employee gives to an employer regarding a family relationship, pursuant to which the employee seeks to take family leave under this Section, shall be used only to make a decision in regard to the provisions of this Act. An employer shall keep any information regarding the family relationship confidential.

(2) Any employer who willfully violates this subsection shall be assessed a civil penalty of $1,000 for each offense.

Section 15. Medical leave requirement.

(a) Subject to the provisions of Section 20, any employee who becomes unable to perform the functions of the employee's position because of a serious health condition shall be entitled to medical leave for as long as the employee is unable to perform the functions, except that the medical leave shall not exceed 16 workweeks during any 24-month period. The medical leave may be taken intermittently when medically necessary.

(b)(1) Except as provided in paragraphs (2) through (4) of this subsection, medical leave may consist of unpaid leave.

(2) Any paid medical or sick leave provided by an employer that the employee elects to use for medical leave shall count against the 16 workweeks of allowable medical leave under this Act.

(3) If an employer and employee agree that an employee may use paid vacation, personal, or compensatory leave as medical leave, the paid vacation, personal, or compensatory leave shall count against the 16 workweeks of medical leave provided in this Act.

(4) If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions, and the conditions have been met, the employee may use the paid leave as medical leave and the leave shall count against the 16 workweeks of medical leave provided in this Act.

(c) If the need for medical leave is foreseeable based on planned medical treatment or supervision, the employee shall:

(1) Provide the employer with prior reasonable notice of the medical treatment or supervision; and

(2) Make a reasonable effort to schedule the medical treatment or supervision, subject to the approval of the health care provider of the employee, in a manner that does not disrupt unduly the operations of the employer.

Section 20. Certification.

(a) An employer may require that a request for family leave under item (4) of subsection (a) of Section 10 of medical leave under Section 15 be supported by a certification issued by the health care provider of the employee or family member. The employee shall provide a copy of the certification to the employer.

(b) The certification provided by the employee to the employer shall state:

(1) The date on which the serious health condition commenced;

(2) The probable duration of the condition;

(3) The appropriate medical facts within the knowledge of the health care provider that would entitle the employee to take leave under this Act; and

(4)(A) For purposes of medical leave under Section 15, a statement that the employee is unable to perform the functions of the employee's position; or

(B) For purposes of family leave under items (4) of subsection (a) of Section 10, an estimate of the amount of time that the employee is needed to care for the family member.

(c) For the purposes of subsection (c) of Section 25, the employer may request that certification issued in any case involving medical leave under Section 15 include an explanation of the extent to which the employee is unable to perform the functions of the employee's position.

(d)(1) If the employer has reason to doubt the validity of the certification provided under subsection (a), the employer may require that the employee obtain, at the expense of the employer, the opinion of a second health care provider approved by the employer, in regard to any information required to be certified under subsection (b).

(2)(A) If the second opinion provided under this subsection differs from the original certification provided under subsection (a), the employee may obtain the opinion of a third health care provider mutually agreed upon by the employer and the employee, in regard to any information required to be certified under subsection (b). The employer shall pay the cost of the opinion of the third health care provider.

(B) The opinion of the third health care provider in regard to the information certified under subsection (b) shall be final and binding on the employer and employee.

(e) Any health care provider approved or mutually agreed upon under items (1) or (2) of subsection (d) may not be retained on a regular basis by the employer or employee or otherwise bear a close relationship to the employer or employee that would give the appearance that the certification is biased.

(f) The employer may require that the employee obtain subsequent recertifications on a reasonable basis.

(g)(1) Certification information requested under this Section shall be used only to make a decision in regard to the provisions of this Act. An employer shall keep any medical information obtained from a certification request confidential.

(2) Any employer who willfully violates this subsection shall be assessed a civil penalty of $1,000 for each offense.

Section 25. Employment and benefits protection.

(a) Any employee who takes family or medical leave under this Act shall not lose any employment benefit or seniority accrued before the date on which the family or medical leave commenced.

(b)(1) During any period in which an employee takes family or medical leave under Section 10 or Section 15, the employer shall maintain coverage under any group health plan, as defined in Section 5000(b) of the Internal Revenue Code of 1986, except that for the purposes of this Act, the term "group health plan" shall include a group health plan provided by the State of Illinois, any State officer, department, or agency, any unit of local government, and any school district. The employer shall maintain coverage for the duration of the family or medical leave at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment from the date the employee commenced the family or medical leave until the date the employee was restored to employment pursuant to subsection (d).

(2) An employer may require the employee to continue to make any contribution to a group health plan that the employee would have made if the employee had not taken family or medical leave. If an employee is unable or refuses to make the contribution to the group health plan, the employee shall forfeit the health plan benefit until the employee is restored to employment pursuant to subsection (d) and resumes payment to the plan.

(c)(1) Nothing in this Act shall prohibit an employer and an employee with a serious health condition from agreeing mutually to alternative employment for the employee throughout the duration of the serious health condition of the employee. Any period of alternative employment shall not cause a reduction in the amount of family or medical leave to which the employee is entitled under Section 10 or Section 15.

(2) When the employee who agreed to alternative employment is able to perform the functions of the employee's original position, the employee shall be restored to the original position pursuant to subsection (d).

(d) Except as provided in subsection (f), upon return from family or medical leave taken pursuant to Section 10 or Section 15, the employee shall be:

(1) restored by the employer to the position of employment held by the employee when the family or medical leave commenced; or

(2) restored to a position of employment equivalent to the position held by the employee when the family or medical leave commenced that includes equivalent employment benefits, pay, seniority, and other terms and conditions of employment.

(e) Except as provided in subsection (b), nothing in this Section shall entitle an employee restored by an employer to a position of employment to:

(1) the accrual of any seniority or employment benefit during any period of family or medical leave; or

(2) any right, employment benefit, or position of employment other than any right, employment benefit, or position of employment to which the employee would have been entitled had the employee not taken the family or medical leave.

(f)(1) Except as provided in paragraph (2) of this subsection, an employer in Illinois may deny restoration of employment to a salaried employee if the employee is among the 5 highest paid employees of an employer of fewer than 50 persons or among the highest paid 10% of employees of an employer of 50 or more persons and the following conditions are met:

(A) the employer demonstrates that denial of restoration of employment is necessary to prevent substantial economic injury to the employer's operations and the injury is not directly related to the leave that the employee took pursuant to this Act; and

(B) the employer notifies the employee of the intent to deny restoration of employment and the basis for the decision at the time the employer determines denial of restoration of employment is necessary.

(2) The condition in paragraph (1) of this subsection shall not apply if the following conditions have been met:

(A) the employer is under a contract to provide work or services and the absence of the employee prohibits the employer from completing the contract in accordance with the terms of the contract;

(B) failure to complete the contract will cause substantial economic injury to the employer; and

(C) after the employer made reasonable attempts, the employer failed to find a temporary replacement for the employee.

Section 30. School employees.

(a) If the conditions in subsection (b) are met, a school district or private elementary or secondary school ("school") may require an employee who is employed principally in an instructional capacity to elect to:

(1) take the family or medical leave for periods of particular duration not to exceed the planned medical treatment or supervision; or

(2) transfer temporarily to an available alternative position offered by the school for which the employee is qualified, which has equivalent pay and benefits, and better accommodates the recurring periods of leave than the employee's regular employment position.

(b) The provisions of subsection (a) shall apply if the employee described in subsection (a):

(1) elects to take family leave pursuant to item (4) of subsection (a) of Section 10 or medical leave pursuant to Section 15 that is foreseeable based on planned medical treatment or supervision;

(2) would be on leave for greater than 20% of the total number of working days in the period during which leave would extend; and

(3) complies with subsection (g) of Section 10 or subsection (c) of Section 15.

(c)(1) If an employee of an school who is employed principally in an instructional capacity begins family or medical leave more than 5 weeks before the end of the academic term, the school may require the employee to continue to take leave until the end of the term if:

(A) the leave is at least 3 weeks in duration; and

(B) the return to employment would occur during the 3-week period before the end of the academic term

(2) If the employee described in paragraph (1) of this subsection begins leave under Section 10 or Section 15 during the period that commences from more than 3 weeks and up to and including 5 weeks before the end of the academic term, the school may require the employee to continue to take leave until the end of the term if:

(A) the leave is greater than 2 weeks in duration; and

(B) the return to employment would occur during the 2-week period before the end of the academic term.

(3) If the employee described in paragraph (1) of this subsection begins leave under Section 10 or Section 15 during the period that commences 3 weeks or less before the end of the academic term and the duration of the leave is greater than 5 working days, the school may require the employee to continue to take leave until the end of the term.

(d) For purposes of a restoration of employment determination under item (2) of subsection (d) of Section 25, in the case of an school, the determination shall be made on the basis of established school board or private school policies and practices and collective bargaining agreements.

Section 35. Prohibited acts.

(a) It is be unlawful for any person to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by this Act.

(b) It is unlawful for an employer to discharge or discriminate in any manner against any person because the person:

(1) opposes any practice made unlawful by this Act;

(2) pursuant or related to this Act:

(A) files or attempts to file a charge;

(B) institutes or attempts to institute a proceeding; or

(C) facilitates the institution of a proceeding; or

(3) gives any information or testimony in connection with an inquiry or proceeding related to this Act.

Section 40. Investigative authority.

(a) An employer shall develop, maintain, and make available to the Department records regarding the employer's activities related to this Act that the Department may prescribe by rule.

(b) To ensure compliance with the provisions of this Act, the Department, may:

(1) investigate and gather data regarding any wage, hour, condition, or practice of employment related to this Act; and

(2) enter or inspect any place of employment or record required by this Act.

(c) For the purpose of any investigation provided for in this Section, the Department may issue subpoenas.

Section 45. Administrative enforcement procedure; relief.

(a) The Department shall provide an administrative procedure pursuant to which a person claimed to be aggrieved under this Act may file a complaint against an employer alleged to have violated this Act. A complaint shall be filed within one year after the occurrence or discovery of the alleged violation of this Act.

(b) The administrative procedure shall include, but not be limited to:

(1) an investigation of the complaint and an attempt to resolve the complaint by conference, conciliation, or persuasion;

(2) if the complaint is not resolved, a determination on the existence of probable cause to believe a violation of this Act has occurred;

(3) if there is a determination that probable cause exists, the issuance and service of a written notice and a copy of the complaint to the employer alleged to have committed the violation that requires the employer to answer the charges of the complaint at a formal hearing;

(4) a hearing conducted in accordance with Illinois Administrative Procedure Act;

(5) a decision and order accompanied by findings of fact and conclusions of law;

(6) if there is a determination that an employer committed a violation of this Act, the issuance of an order that requires the employer to pay the employee damages in an amount equal to:

(A) any wages, salary, employment benefits, or other compensation denied or lost to the employee due to the violation plus interest on the amount calculated at the rate prescribed in the Code of Civil Procedure for judgments; and

(B) an amount equal to the greater of:

(i) the amount determined under subparagraph (A) of this paragraph; or

(ii) consequential damages not to exceed an amount equal to 3 times the amount determined under subparagraph (A) of this paragraph plus any medical expenses not covered by the health insurance of the employee; or

(C) a reduction in damages, within the discretion of the trier of fact, for an employer who violates this Act and proves that the violation occurred in good faith and that the employer had reasonable grounds to believe that the employer's action or omission was not in violation of this Act; and

(7) a provision that authorizes the award of costs and reasonable attorney's fees to the prevailing party in addition to other relief awarded under this Act.

(c) Any person who is adversely affected or aggrieved by an order or decision issued pursuant to subsection (b) is entitled to judicial review of the order or decision in accordance with the Administrative Review Law.

(d)(1) If the Department determines that the employer has not complied with an order after 20 days following service of the order, the Department shall certify the matter to the Attorney General for enforcement.

(2) The Attorney General shall institute, in the name of the Department, a civil proceeding that may include seeking injunctive relief, as is necessary to obtain complete compliance with the order.

(3) An enforcement action shall not be instituted pending judicial review as provided in subsection (c).

(e) The entire administrative enforcement procedure outlined in subsections (a) and (b), including the formal hearing, shall take no longer than 150 days to complete from the date the complaint is filed. If the Department fails to make a reasonable effort to comply with the deadline requirements of the administrative enforcement provisions prescribed by this subsection and the rules promulgated by the Department, the person who initiated the administrative enforcement procedure against the employer may file a civil action against the employer pursuant to Section 50.

Section 50. Enforcement by civil action.

(a) Subject to the provisions in subsection (b), an employee or the Department may bring a civil action against any employer to enforce the provisions of this Act in circuit court.

(b) No civil action may be commenced more than one year after the occurrence or discovery of the alleged violation of this Act.

(c) If a court determines that an employer violated any provision of this Act, the damages provision prescribed in items (6) and (7) of subsection (b) of Section 45.

Section 55. Notice.

(a) The Department shall devise, and an employer shall post and maintain in a conspicuous place, a notice that sets forth excerpts from or summaries of the pertinent provisions of this Act and information that pertains to the filing of a complaint under this Act.

(b) An employer who willfully violates this Section shall be assessed a civil penalty not to exceed $100 for each day that employer fails to post the notice.

Section 60. Effect on other laws. Nothing in this Act shall supersede any provision of law that provides greater employee family or medical leave rights than the family or medical rights established under this Act.

Section 65. Effect on existing employment benefits.

(a) Nothing in this Act shall diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to an employee than the family or medical leave rights provided under this Act.

(b) The rights provided to an employee under this Act may not be diminished by any collective bargaining agreement or any employment benefit program or plan, except that this Act shall not supersede any clause on family or medical leave in any collective bargaining agreement in force on the effective date of this Act, for the time that the collective bargaining agreement is in effect.

(c) The rights provided to an employee under this Act may be suspended temporarily for an employee of a public safety agency if the employee is required by rules of the agency or by the provisions of a collective bargaining agreement to return to duty because of an emergency declared by the agency head or the Department.

Section 70. Encouragement of more generous leave policies. Nothing in this Act shall be construed to discourage an employer from the adoption or retention of a family and medical leave policy more generous than the family and medical leave required by this Act.

Section 75. Applicability. The rights and responsibilities established by this Act shall apply beginning 180 days after the effective date of this Act to any employer that employs 20 or more persons in Illinois.

Section 80. Rules.

(a) The Department shall adopt rules to implement the provisions of this Act.

(b) The proposed rules shall include standards for:

(1) the definition of the term "family member";

(2) the reasonable notice that an employee who seeks to take family or medical leave shall give to an employer; and

(3) the administrative enforcement procedure.

Section 999. Effective date. This Act takes effect July 1, 2020.