Full Text of SB1723 101st General Assembly
SB1723 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 SB1723 Introduced 2/15/2019, by Sen. Ram Villivalam SYNOPSIS AS INTRODUCED: |
| New Act | | 30 ILCS 105/5.891 new | |
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Creates the Family Leave Insurance Program Act. Requires the Department of Labor to establish and administer a Family Leave Insurance Program that provides family leave insurance benefits to eligible employees who take unpaid family leave to care for a newborn child, a newly adopted or newly placed foster child, or a family member with a serious health condition. Sets forth eligibility requirements for benefits under the Act including that the employee must (i) establish that he or she has been employed for at least 680 hours in employment during the employee's qualifying year and (ii) document that he or she has provided the employer with written notice of the employee's intention to take family leave. Defines "employer" to mean (a) any person, partnership, corporation, association, or other business entity that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the year in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken; and (b) the State of Illinois and any other unit of local government. Contains provisions concerning disqualification from benefits; premium payments; the amount and duration of benefits; the recovery of erroneous payments; hearings; defaulted premium payments; elective coverage; employment protection; coordination of family leave; defined terms; and other matters. Amends the State Finance Act. Creates the Family Leave Insurance Account Fund. Provides phase-in periods for collection of moneys and claims for benefits under the Act. Effective January 1, 2020.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the Family | 5 | | and Medical Leave Insurance Act. | 6 | | Section 5. Declaration of policy and intent. | 7 | | (a) Many workers do not have access to family and medical | 8 | | leave programs, and those who do may not be in a financial | 9 | | position to take family or medical leave that is unpaid, and | 10 | | employer-paid benefits meet only a relatively small part of | 11 | | this need. It is the public policy of this State to protect
| 12 | | working families against the economic hardship caused by the
| 13 | | need to take time off from work to care for themselves or | 14 | | family members who
are suffering from a serious illness or to | 15 | | care for a newborn or a newly adopted child. | 16 | | Moreover, many women are single mothers or the primary | 17 | | breadwinners for their families. If any of these women take an | 18 | | unpaid maternity leave, her whole family, and Illinois, | 19 | | suffers. | 20 | | The United States is the only industrialized nation in the | 21 | | world that does not have a mandatory workplace-based program | 22 | | for such income support. | 23 | | It is therefore desirable and necessary to develop systems |
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| 1 | | that help families adapt to the competing interests of work and | 2 | | home which not only benefit workers, but also benefit employers | 3 | | by reducing employee turnover and increasing worker | 4 | | productivity. | 5 | | (b) It is the intent of the General Assembly to create a | 6 | | family and medical leave program to relieve the serious menace | 7 | | to health, morals, and welfare of Illinois families, to | 8 | | increase workplace productivity, and to alleviate the enormous | 9 | | and growing stress on working families of balancing the demands | 10 | | of work and family needs. | 11 | | Section 10. Definitions. In this Act: | 12 | | (1) "Average weekly wage" means the amount derived by | 13 | | dividing by 12 an employee's total wages, including gratuities | 14 | | and commissions that constitute remuneration, earned during | 15 | | the 12 weeks preceding application for family and medical leave | 16 | | benefits, or the most recent 12 weeks of employment if the | 17 | | individual is not currently employed. | 18 | | (2) "Base hours" means the hours of work for which an | 19 | | employee receives compensation. "Base hours" includes overtime | 20 | | hours for which the employee is paid additional or overtime | 21 | | compensation and hours for which the employee receives workers' | 22 | | compensation benefits. "Base hours" also includes hours an | 23 | | employee would have worked except for having been in military | 24 | | service. "Base hours" also includes hours for which the | 25 | | employee receives other types of compensation, such as |
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| 1 | | administrative, personal leave, vacation or sick leave, or paid | 2 | | time off. | 3 | | (3) "Care" includes, but is not limited to, physical care, | 4 | | emotional support, visitation, arranging for a change in care, | 5 | | assistance with essential daily living matters, and personal | 6 | | attendant services. | 7 | | (4) "Child" means a biological, adopted, or foster child,
| 8 | | stepchild, or legal ward of an employee, or a child for whom an | 9 | | employee is standing in loco parentis, a child of the
spouse of | 10 | | an employee, or a child of a party to a civil union, or any | 11 | | other individual whose close association with the employee is | 12 | | the equivalent of a child. | 13 | | (5) "Civil union" means a civil union as defined in the | 14 | | Illinois Religious Freedom Protection and Civil Union Act.
| 15 | | (6) "Consecutive leave" means leave that is taken without | 16 | | interruption based upon an employee's regular work schedule and | 17 | | does not include breaks in employment in which an employee is | 18 | | not regularly scheduled to work. For example, when an employee | 19 | | is normally scheduled to work from September through June and | 20 | | is not scheduled to work during July and August, a leave taken | 21 | | continuously during May, June, and September shall be | 22 | | considered a consecutive leave. | 23 | | (7) "Covered employee" means (a) an individual employed by | 24 | | the same employer, as defined in paragraph (12), in the State | 25 | | of Illinois for 12 weeks or more who has worked 240 or more | 26 | | base hours. This threshold must be met annually, however, once |
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| 1 | | the annual threshold is met, the covered employee shall be able | 2 | | to use family and medical leave. A covered employee is | 3 | | considered to be employed in the State of Illinois if (i) the | 4 | | individual works in Illinois; (ii) the individual performs some | 5 | | work in Illinois and the employer's base of operations or the | 6 | | place from which the work is directed and controlled is in | 7 | | Illinois; or (iii) the base of operations or place from which | 8 | | the work is directed or controlled is not in any state in which | 9 | | some part of the work is performed, but the individual's | 10 | | residence is in this state. | 11 | | (8) "Department" means the Department of Employment | 12 | | Security.
| 13 | | (9) "Director" means the Director of Employment Security | 14 | | and any transaction or exercise of authority by the Director | 15 | | shall be deemed to be performed by the Department. | 16 | | (10)"Employ" means to suffer or permit to work. | 17 | | (11)"Employee" means any person who works for an
employer | 18 | | for wage, remuneration, or other compensation. This
includes | 19 | | persons working any number of hours, including full-time or | 20 | | part-time status. "Employee" does not include any person who | 21 | | the employer establishes: | 22 | | (A) has been and will continue to be free from control | 23 | | and direction over the performance of their work, both | 24 | | under a contract of service and in fact; | 25 | | (B) is engaged in an independently established trade, | 26 | | occupation, profession or business; or |
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| 1 | | (C) is deemed a legitimate sole proprietor or | 2 | | partnership. A sole proprietor or partnership shall be | 3 | | deemed to be legitimate if the employer establishes that: | 4 | | (i) the sole proprietor or partnership is | 5 | | performing the service free from the direction or | 6 | | control over the means and manner of providing the | 7 | | service, subject only to the right of the employer for | 8 | | whom the service is provided to specify the desired | 9 | | result; | 10 | | (ii) the sole proprietor or partnership is not | 11 | | subject to cancellation or destruction upon severance | 12 | | of the relationship with the employer; | 13 | | (iii) the sole proprietor or partnership has a | 14 | | substantial investment of capital in the sole | 15 | | proprietorship or partnership beyond the ordinary | 16 | | tools and equipment and a personal vehicle; | 17 | | (iv) the sole proprietor or partnership owns the | 18 | | capital goods and gains the profits and bears the | 19 | | losses of the sole proprietorship or partnership; | 20 | | (v) the sole proprietor or partnership makes its | 21 | | services available to the general public on a | 22 | | continuing basis; | 23 | | (vi) the sole proprietor or partnership includes | 24 | | services rendered on a federal Income Tax Schedule as | 25 | | an independent business or profession; | 26 | | (vii) the sole proprietor or partnership performs |
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| 1 | | services for the contractor under the sole proprietor | 2 | | or partnership's name; | 3 | | (viii) when the services being provided require a | 4 | | license or permit, the sole proprietor or partnership | 5 | | obtains and pays for the license or permit in the sole | 6 | | proprietorship's or partnership's name; | 7 | | (ix) the sole proprietor or partnership furnishes | 8 | | the tools and equipment necessary to provide the | 9 | | service; | 10 | | (x) if necessary, the sole proprietor or | 11 | | partnership hires its own employees without approval | 12 | | of the employer, pays the employees without | 13 | | reimbursement from the employer and reports the | 14 | | employees' income to the Internal Revenue Service; | 15 | | (xi) the employer does not represent the sole | 16 | | proprietorship or partnership as an employee of the | 17 | | employer to the public; and | 18 | | (xii) the sole proprietor or partnership has the | 19 | | right to perform similar services for others on | 20 | | whatever basis and whenever it chooses. | 21 | | (12) "Employer" means any individual, person, partnership, | 22 | | association, limited liability company, trust,
estate, | 23 | | joint-stock company, insurance company, employment and labor | 24 | | placement agency, or business where wages are made directly or | 25 | | indirectly by the agency or business for work undertaken by the | 26 | | employee under hire to a third party pursuant to a contract |
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| 1 | | between the agency or business with the third party, or
| 2 | | corporation, whether domestic or foreign, or the receiver,
| 3 | | trustee in bankruptcy, trustee, or person that has in its
| 4 | | employ one or more employees performing services for it as a | 5 | | covered employee. "Employer" also includes any employer | 6 | | subject to
the Unemployment Insurance Act, except the State, | 7 | | its political
subdivisions, and any instrumentality of the | 8 | | State. All
employees performing services within this State for | 9 | | any
employing unit that maintains 2 or more separate | 10 | | establishments
within this State shall be deemed to be employed | 11 | | by a single
employing unit for all purposes of this Act. | 12 | | (13) "Family member" means an employee's child, spouse, | 13 | | party to a civil union, parent, or any other individual related | 14 | | by blood or whose close relationship with the employee is the | 15 | | equivalent of a family relationship, as determined by the | 16 | | employee. | 17 | | (14) "Family and medical leave" means leave taken by a | 18 | | covered
employee from work with an employer: | 19 | | (A) to participate in the
providing of care, including | 20 | | physical or psychological care,
for a family member of the | 21 | | covered employee
made necessary by a serious health | 22 | | condition of the family
member; | 23 | | (B) to be with a child during the first 12 months after
| 24 | | the child's birth, if the employee, the employee's spouse, | 25 | | or
the party to a civil union with the employee, is a | 26 | | biological
parent of the child, or the first 12 months |
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| 1 | | after the placement
of the child for adoption or foster | 2 | | care with the employee, the first 12 months after the child | 3 | | becomes the legal ward of the employee, the employee's | 4 | | spouse, or the party to a civil union with the employee, or | 5 | | the first 12 months after the employee, the employee's | 6 | | spouse, or the party to a civil union with the employee | 7 | | acquires loco parentis status of the child; | 8 | | (C)
for the employee's own serious health condition; | 9 | | (D) because
of any qualifying exigency as interpreted | 10 | | under the Family and
Medical Leave Act of 1993 (29 U.S.C. | 11 | | 2612(a)(1)(E) and 29 CFR) as of the effective date of this | 12 | | Act arising out of the fact that the spouse, party to a
| 13 | | civil union, child, parent of the employee, or any other
| 14 | | individual related by blood or whose close relationship | 15 | | with
the employee is equivalent to a family relationship is | 16 | | on
active duty (or has been notified of an impending call | 17 | | or order
to active duty) in the armed forces as of the | 18 | | United States; or | 19 | | (E) because the employee or the employee's family | 20 | | member is the victim of domestic violence as defined in | 21 | | Section 103(3) of the Illinois Domestic Violence Act of | 22 | | 1986, or sexual violence, which means: (1) any conduct | 23 | | proscribed by Article 11 of the Criminal Code of 2012 | 24 | | except Sections 11-35 and 11-45; (ii) Sections 12-7.3, | 25 | | 12-7.4, and 12-7.5 of the Illinois Criminal Code of 2012; | 26 | | or (iii) a similar provision of the Criminal Code of 1961.
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| 1 | | "Family and medical leave" does not include any period of | 2 | | time during which
an employee is paid benefits pursuant to | 3 | | the Workers'
Compensation Act because the
employee is | 4 | | unable to perform the duties of the employee's
employment | 5 | | due to the employee's own disability, or paid benefits | 6 | | pursuant to the Unemployment Insurance Act.
Act because the | 7 | | employee is unable to perform the duties of the employee's | 8 | | employment due to the employee's own disability. | 9 | | (15) "Family and medical leave benefits" means any payments | 10 | | that are
payable to a covered employee for all or part of a | 11 | | period of
family and medical leave. | 12 | | (16) "Health care provider" means any person licensed under
| 13 | | federal, State, or local law or the laws of a foreign nation to
| 14 | | provide health care services or any other person who has been
| 15 | | authorized to provide health care by a licensed health care
| 16 | | provider. | 17 | | (17) "Intermittent leave" means a non-consecutive leave
| 18 | | consisting of intervals, each of which is at least one, but
| 19 | | fewer than 12, weeks within a consecutive 12-month period. | 20 | | (18) "Parent" means a biological
parent, foster parent, | 21 | | adoptive parent, or stepparent of the
employee or a person who | 22 | | was a legal guardian of, or
who stood in loco parentis to, the | 23 | | employee when the
employee was a child, or any other individual | 24 | | whose close association with the employee is the equivalent of | 25 | | a parent. | 26 | | (19) "Placement for adoption" means the time when an
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| 1 | | employee adopts a child or becomes responsible for a
child | 2 | | pending adoption by the eligible employee. | 3 | | (20) "Serious health condition" means an illness, injury,
| 4 | | impairment, or physical or mental condition that requires
| 5 | | inpatient care in a hospital, hospice, or residential medical
| 6 | | care facility or continuing medical treatment or continuing
| 7 | | supervision by a health care provider. | 8 | | (21) "12-month period" means, with respect to an employee
| 9 | | who establishes a valid claim for family and medical leave | 10 | | benefits during
a period of family and medical leave, the 365 | 11 | | consecutive days that begin
with the first day that the | 12 | | employee first establishes the
claim. | 13 | | (22) "Victim services organization" means a nonprofit, | 14 | | nongovernmental organization that provides assistance to | 15 | | victims of domestic or sexual violence, including rape crisis | 16 | | centers, organizations carrying out a domestic violence | 17 | | program, organizations operating a shelter or providing | 18 | | counseling services, or a legal services organization or other | 19 | | organization providing assistance through the legal process. | 20 | | Section 15. Family and medical leave insurance program. | 21 | | (a) The Department shall
establish and administer a family | 22 | | and medical leave insurance program. | 23 | | (b) The Department shall establish procedures and forms for | 24 | | filing
claims for benefits under this Act. | 25 | | (c) The Department shall use information sharing and
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| 1 | | integration technology to facilitate the disclosure of
| 2 | | relevant information or records by the Department. | 3 | | (d) Information contained in the files and records | 4 | | pertaining to an
employee under this Act is confidential and | 5 | | not open to public
inspection, other than to public employees | 6 | | in the performance of their
official duties. However, the | 7 | | employee or an authorized
representative of an employee may | 8 | | review the records or receive
specific information from the | 9 | | records on the presentation of the signed
authorization of the | 10 | | employee. An employer or the employer's duly
authorized | 11 | | representative may review the records of an employee
employed | 12 | | by the employer in connection with a pending claim. At the
| 13 | | Department's discretion, other persons may review records when | 14 | | such
persons are rendering assistance to the Department at any | 15 | | stage of the
proceedings on any matter pertaining to the | 16 | | administration of this
Act. | 17 | | An employer must keep at its place of business records of | 18 | | employment from which the information needed by the Department | 19 | | for purposes of this Act may be obtained. The records shall at | 20 | | all times be open to the inspection of the Department pursuant | 21 | | to rules adopted by the Department. | 22 | | (e) The Department shall develop and implement an outreach
| 23 | | program to ensure that individuals who may be eligible to
| 24 | | receive family and medical leave benefits under this Act are | 25 | | made aware of
these benefits. Outreach information shall | 26 | | explain, in an easy
to understand format, eligibility |
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| 1 | | requirements, the claims
process, weekly benefit amounts, | 2 | | maximum benefits payable,
notice requirements, reinstatement | 3 | | and nondiscrimination
rights, confidentiality, and | 4 | | coordination of leave under this
Act and other laws, collective | 5 | | bargaining agreements, and
employer policies. Outreach | 6 | | information shall be available in
English and in languages | 7 | | other than English that are spoken as
a primary language by a | 8 | | significant portion of the State's
population, as determined by | 9 | | the Department. | 10 | | (d) A covered employee may make a claim for benefits under | 11 | | this Act on and after January 1 of the year one year after the | 12 | | Department begins collecting employee payroll premium | 13 | | deductions and employer premium contributions under this Act. | 14 | | Section 20. Eligibility for benefits. | 15 | | (a) The Department may require that a claim for family and | 16 | | medical
leave benefits under this Act be supported by a
| 17 | | certification. For a claim for family and medical leave under | 18 | | paragraph (A), (B), or (C) of item (14) of Section 10, the | 19 | | certification shall be issued by a health care provider of the | 20 | | employee's choosing who is providing
care to the employee or | 21 | | the employee's family member if
applicable. For a claim for | 22 | | family and medical leave under paragraph (E) of item (14) of | 23 | | Section 10, any one of the following is acceptable for | 24 | | certification, and only one of the following documents shall be | 25 | | required: a police report, court document, document issued by a |
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| 1 | | healthcare provider, or a signed statement from an attorney, a | 2 | | member of the clergy, or a victim services organization or | 3 | | advocate. It is up to the employee to determine which | 4 | | documentation to submit. If a document has been submitted, the | 5 | | Department or the employer shall not request or require any | 6 | | other document if the reason for the initial or subsequent | 7 | | claims for family and medical leave is related to the same | 8 | | incident of violence or the same perpetrator of the violence. | 9 | | (b) The eligibility of an employee for benefits is not | 10 | | affected by a strike or lockout at the
factory, establishment, | 11 | | or other premises at which the employee is or was last | 12 | | employed. | 13 | | (c) An employee who has received benefits under this
Act | 14 | | may not lose any other employment benefits, including
seniority | 15 | | or pension rights, accrued before the date that
family and | 16 | | medical leave commenced. The employer shall maintain during any | 17 | | period of family and medical leave taken the health benefits of | 18 | | the employee and, if applicable, the employee's dependents, in | 19 | | force at the time a request for family and medical leave was | 20 | | made, for the duration of such leave as if the employee had | 21 | | continued to work from the date the employee commenced the | 22 | | family and medical leave until the date the employee returns to | 23 | | work. However, this Section does not entitle
an employee to | 24 | | accrue employment benefits during a period of
family and | 25 | | medical leave or to a right, benefit, or position of employment
| 26 | | other than a right, benefit, or position to which the employee
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| 1 | | would have been entitled had the employee not taken family and | 2 | | medical
leave. | 3 | | (d) This Act does not diminish an employer's obligation
to | 4 | | comply with a collective bargaining agreement or an
employment | 5 | | benefits program or plan that provides greater
benefits to | 6 | | employees than the benefits provided under this
Section. | 7 | | (e) An agreement by an employee to waive the employee's
| 8 | | rights under this Section is void as contrary to public policy.
| 9 | | The benefits under this Act may not be diminished by a
| 10 | | collective bargaining agreement or another employment benefits
| 11 | | program or plan entered into or renewed after the effective
| 12 | | date of this Act. | 13 | | (f) Nothing in this Act shall be deemed to affect the
| 14 | | validity or change the terms of bona fide collective bargaining
| 15 | | agreements in force on the effective date of this Act. After
| 16 | | that date, requirements of this Act may be waived in a bona
| 17 | | fide collective bargaining agreement, but only if the waiver is
| 18 | | set forth explicitly in such agreement in clear and unambiguous
| 19 | | terms. | 20 | | Section 25. Elective coverage; self-employed. | 21 | | (a) For benefits payable beginning January 1, 2021, any | 22 | | self-employed person, including a sole proprietor, independent | 23 | | contractor, partner, or joint venturer, who has | 24 | | self-employment income for work performed in Illinois in | 25 | | accordance with the definition of covered employee under item |
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| 1 | | (7) of Section 10 may elect coverage for an initial period of | 2 | | not less than 3 years and subsequent periods of not less than | 3 | | one year immediately following a period of coverage. Those | 4 | | electing coverage under this Act are responsible for payment of | 5 | | 100% of all premiums assessed to any employee and employer | 6 | | under this Act. The self-employed person must file a notice of | 7 | | election in writing with the Department, in a manner as | 8 | | required by the Department in rule. The self-employed person is | 9 | | eligible for family and medical leave benefits after working at | 10 | | least 12 weeks in the state following the date of filing the | 11 | | notice. | 12 | | (b) A self-employed person who has elected coverage may | 13 | | withdraw from coverage within 30 days after the end of each | 14 | | period of coverage, or at such other times as the Department | 15 | | may adopt by rule, by filing a notice of withdrawal in writing | 16 | | with the Department, such withdrawal to take effect not sooner | 17 | | than 30 days after the filing the notice with the Department. | 18 | | (c) The Department may cancel elective coverage if the | 19 | | self-employed person fails to make required payments or file | 20 | | reports. The Department may collect due and unpaid premiums and | 21 | | may levy additional premium for the remainder of the period of | 22 | | coverage. The cancellation shall be effective no later than 30 | 23 | | days from the date of the notice in writing advising the | 24 | | self-employed person of the cancellation. | 25 | | (d) Those electing coverage are considered employees or | 26 | | employers where the context dictates so. |
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| 1 | | (e) In this Section, "independent contractor" means an | 2 | | individual excluded from employment under the definition of | 3 | | "employee" under Section 10 of this Act. | 4 | | Section 30. Disqualification from benefits. | 5 | | (a) An employee is disqualified from family and medical | 6 | | leave benefits
under this Act if the employee: | 7 | | (1) willfully makes a false statement or | 8 | | misrepresentation regarding a material fact, or
willfully | 9 | | fails to disclose a material fact, to obtain benefits; | 10 | | (2) seeks benefits based on a serious health condition
| 11 | | that resulted from the employee's commission of a felony. | 12 | | (b) A disqualification for family and medical leave | 13 | | benefits is for a
period of 2 years, and commences on the first | 14 | | day of the
calendar week in which the employee filed a claim | 15 | | for benefits
under this Act. An employee who is disqualified | 16 | | for benefits is
liable to the Department for a penalty in an | 17 | | amount equal to
15% of the amount of benefits received by the | 18 | | employee. | 19 | | Section 35. Family and Medical Leave Insurance Fund. | 20 | | (a) The Family and Medical Leave Insurance Fund is created | 21 | | as a special fund in
the State treasury. Moneys in the
Fund may | 22 | | be used for the payment of family and medical leave benefits | 23 | | and
for the administration of this Act. All interest and other
| 24 | | earnings that accrue from investment of moneys in the Fund
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| 1 | | shall be credited to the Fund.
| 2 | | (b) An employer shall retain from all employees a payroll
| 3 | | premium deduction in the amount of 0.15% of wages as defined in
| 4 | | Section 235 of the Unemployment Insurance Act. An employer | 5 | | shall pay an amount equal to the payroll premium deduction, | 6 | | known as the employer's premium contribution. The Department
| 7 | | shall by rule provide for the collection of this payroll
| 8 | | premium deduction and the employer's premium contribution. | 9 | | The amount of the payroll premium deduction and the | 10 | | employer's premium contribution imposed under this
Section, | 11 | | less refunds authorized by this Act, and all
assessments and | 12 | | penalties collected under this Act shall be
deposited into and | 13 | | credited to the Fund. | 14 | | (c) A separate account, to be known as the Family and | 15 | | Medical Leave Insurance Administration
Account, shall be | 16 | | maintained in the Fund. An amount determined
by the Department | 17 | | sufficient for proper administration, not to
exceed, however, | 18 | | 0.05% of additional payroll premium deductions and of employer | 19 | | premium contributions as defined in this Section,
shall be | 20 | | collected and credited to the Administration Account. The | 21 | | expenses
of the Department in administering the Fund and its | 22 | | accounts
shall be charged against the Administration Account. | 23 | | The costs
of administration of this Act shall be charged to the
| 24 | | Administration Account. | 25 | | (d) A separate account, to be known as the Family and | 26 | | Medical Leave
Benefits Account, shall be maintained in the |
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| 1 | | Fund. The account
shall be charged with all benefit payments. | 2 | | Prior to July 1 of
each calendar year, the Department shall | 3 | | determine the average
rate of interest and other earnings on | 4 | | all investments of the
Fund for the preceding calendar year. If | 5 | | there is an
accumulated deficit in the Family and Medical Leave | 6 | | Benefits Account in
excess of $200,000 at the end of any | 7 | | calendar year after
interest and other earnings have been | 8 | | credited as provided in
this Section, the Department shall | 9 | | determine the ratio of the
deficit to the total of all taxable | 10 | | wages paid during the
preceding calendar year and shall make an | 11 | | assessment against
all employers in an amount equal to the | 12 | | taxable wages paid by
them during the preceding calendar year | 13 | | to employees,
multiplied by the ratio, but in no event shall | 14 | | any such
assessment exceed 0.1% of such wages. The amounts | 15 | | shall be
collectible by the Department in the same manner as | 16 | | provided
for the collection of employer contributions under the
| 17 | | Unemployment Insurance Act. In making this assessment, the
| 18 | | Department shall furnish to each affected employer a brief
| 19 | | summary of the determination of the assessment. The amount of
| 20 | | such assessments collected by the Department shall be credited
| 21 | | to the Family and Medical Leave Benefits Account. As used in | 22 | | this Section,
"wages" means wages as provided in Section 235 of | 23 | | the
Unemployment Insurance Act. | 24 | | (e) A board of trustees, consisting of the State Treasurer, | 25 | | the Secretary of State, the Director of Labor, the Director of | 26 | | Employment Security, and the State Comptroller, is hereby |
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| 1 | | created. The board shall invest and reinvest all moneys in the | 2 | | Fund in excess of its cash requirements in obligations legal | 3 | | for savings banks. | 4 | | (f) The Department may adjust rates, not to exceed the | 5 | | amount
established in subsection (b) of this Section, for the
| 6 | | collection of premiums pursuant to subsection (b) of this
| 7 | | Section. The Department shall set rates for premiums in a | 8 | | manner
that minimizes the volatility of the rates assessed and | 9 | | so that
at the end of the period for which the rates are | 10 | | effective, the
cash balance shall be an amount approximating 12 | 11 | | months of
projected expenditures from the
Fund, considering the | 12 | | functions and duties of the Department
under this Act. | 13 | | (g) An employer required to make employee premium | 14 | | deductions and pay employer premium contributions under this | 15 | | Section
shall make and file a report of employee hours worked | 16 | | and
amounts due under this Section upon a combined report form
| 17 | | prescribed by the Department. The report shall be filed with
| 18 | | the Department at the times and in the manner prescribed by the
| 19 | | Department. | 20 | | (h) If the employer is a temporary employment agency that
| 21 | | provides employees on a temporary basis to its customers, the
| 22 | | temporary employment agency is considered the employer for
| 23 | | purposes of this Act. | 24 | | (i) When an employer goes out of business or sells out,
| 25 | | exchanges, or otherwise disposes of the business or stock of
| 26 | | goods, any premiums payable under this Section are immediately
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| 1 | | due and payable, and the employer shall, within 10 days
| 2 | | thereafter, pay the premiums due. A person who becomes a
| 3 | | successor to the business is liable for the full amount of the
| 4 | | premiums and shall withhold from the purchase price a sum
| 5 | | sufficient to pay any premiums due from the employer until the
| 6 | | employer produces a receipt from the Department showing payment
| 7 | | in full of any premiums due or a certificate that no premium is
| 8 | | due. If the premiums are not paid by the employer within 10 | 9 | | days
after the date of the sale, exchange, or disposal, the
| 10 | | successor is liable for the payment of the full amount of the
| 11 | | premiums. The successor's payment of the premiums are, to the
| 12 | | extent of the payment, a payment upon the purchase price, and
| 13 | | if the payment is greater in amount than the purchase price,
| 14 | | the amount of the difference is a debt due the successor from
| 15 | | the employer.
| 16 | | A successor is not liable for any premiums due from the
| 17 | | person from whom the successor has acquired a business or stock
| 18 | | of goods if the successor gives written notice to the
| 19 | | Department of the acquisition and no assessment is issued by
| 20 | | the Department within one year after receipt of the notice
| 21 | | against the former operator of the business. | 22 | | (j) This Section is inoperative before January 1 of the | 23 | | year after this Act becomes law. At that time, the Department | 24 | | shall collect the amounts due under this Section. | 25 | | Section 40. Compensation for family and medical leave. |
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| 1 | | (a) An individual's weekly benefit rate shall be determined | 2 | | as follows: if the employee's average weekly wage is (a) 50% or | 3 | | less of the statewide average weekly wage, the employee's | 4 | | weekly benefit is 90% of the employee's average weekly wage or | 5 | | (b) greater than 50% of the statewide average weekly wage, the | 6 | | employee's weekly benefit is the sum of (i) 90% of the | 7 | | employee's average weekly wage up to 50% of the statewide | 8 | | average weekly wage; and (ii) 50% of the statewide average | 9 | | weekly wage that is greater than 50% of the employee's average | 10 | | weekly wage.
The individual's benefit rate shall be computed to | 11 | | the next lower
multiple of $1 if not already a multiple | 12 | | thereof. The amount of
benefits for each day of family and | 13 | | medical leave for which benefits are
payable shall be | 14 | | one-seventh of the corresponding weekly
benefit amount; | 15 | | provided that the total benefits for a
fractional part of a | 16 | | week shall be computed to the next lower
multiple of $1 if not | 17 | | already a multiple thereof. | 18 | | (b) The maximum weekly benefit for family and medical leave | 19 | | shall be $1,000, adjusted annually after the first year to 90% | 20 | | of the statewide average weekly wage. | 21 | | (c) With respect to any period of family and medical leave | 22 | | taken by a covered employee, family and medical leave benefits | 23 | | not in
excess of the employee's maximum benefits shall be | 24 | | payable
with respect to the first day of family and medical | 25 | | leave taken after a waiting period consisting of the first 7 | 26 | | calendar days of family and medical leave following the |
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| 1 | | commencement of the period of
family and medical leave and each | 2 | | subsequent day of family and medical leave during
that period | 3 | | of family and medical leave; and if benefits become payable on
| 4 | | any day after the first 3 weeks in which leave is taken, then
| 5 | | benefits shall also be payable with respect to any leave taken
| 6 | | during the first one-week period in which leave is taken. The | 7 | | waiting period need only be served once every application year. | 8 | | The
maximum total benefits payable to any covered employee
| 9 | | commencing on or after the effective date of this Act shall be
| 10 | | 12 times the employee's weekly benefit amount, provided that | 11 | | the maximum amount shall be computed
in the next lower multiple | 12 | | of $1 if not already a multiple
thereof. | 13 | | (d) The first payment of benefits must be made to an | 14 | | employee within 14 calendar days after the claim is filed and | 15 | | subsequent payments must be made no later than semi-monthly | 16 | | thereafter. If the employer contests an initial application for | 17 | | family and medical leave benefits, the employer must notify the | 18 | | employee and the Department in a manner prescribed by the | 19 | | Director within 10 calendar days of receipt of notice from the | 20 | | Department of the employee's filing of an application for | 21 | | benefits. | 22 | | Nothing in this Act shall be construed to prohibit the
| 23 | | establishment by an employer, without approval by the
| 24 | | Department, of a supplementary plan or plans providing for the
| 25 | | payment to employees, or to any class or classes of employees,
| 26 | | of benefits in addition to the benefits provided by this Act. |
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| 1 | | The rights, duties, and responsibilities of all
interested | 2 | | parties under the supplementary plans shall be
unaffected by | 3 | | any provision of this Act. | 4 | | Section 45. Family and medical leave; duration. A covered | 5 | | employee
may take up to 12 weeks of family and medical leave | 6 | | within any 12-month period in
order to provide care made | 7 | | necessary by reasons identified in
Section 10. A covered | 8 | | employee may take family and medical leave on an
intermittent | 9 | | schedule in which all of the leave authorized
under this Act is | 10 | | not taken sequentially. | 11 | | Section 50. Annual reports; contents. | 12 | | (a) The Department shall issue and make available to the
| 13 | | public, not later than July 1, 2023 and July 1 of each
| 14 | | subsequent year, annual reports providing data on family and | 15 | | medical leave
benefits claims including separate data for each | 16 | | of the
following categories of claims: the employee's own | 17 | | serious
illness; care of newborn children; care of newly | 18 | | adopted
children; care of seriously ill family members, because | 19 | | of family members on active duty in the armed forces of the | 20 | | U.S.; and for domestic or sexual violence The reports shall | 21 | | include, for
each category of claims, the number of workers | 22 | | receiving the
benefits, the amount of benefits paid, the | 23 | | average duration of
benefits, the average weekly benefit, and | 24 | | any reported amount
of sick leave, vacation, or other fully |
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| 1 | | paid time which
resulted in reduced benefit duration. The | 2 | | report shall provide
data by gender and by any other | 3 | | demographic factors determined
to be relevant by the | 4 | | Department. The reports shall also
provide, for all family and | 5 | | medical leave benefits, the total costs of
benefits and the | 6 | | total cost of administration, the portion of
benefits for | 7 | | claims during family and medical leave, and the total revenues
| 8 | | from employer assessments, where applicable; employee
| 9 | | assessments; and other sources. | 10 | | (b) The Department may, in its discretion, conduct surveys
| 11 | | and other research regarding, and include in the annual reports
| 12 | | descriptions and evaluations of the impact and potential future
| 13 | | impact of the costs and benefits resulting from the provisions
| 14 | | of this Act for: | 15 | | (1) employees and their families, including surveys
| 16 | | and evaluations of what portion of the total number of
| 17 | | employees taking family and medical leave would not have | 18 | | taken leave, or would
have taken less leave, without the | 19 | | availability of
benefits; what portion of employees return | 20 | | to work after
receiving benefits and what portion are not | 21 | | permitted to
return to work; and what portion of employees | 22 | | who are
eligible for benefits do not claim or receive them | 23 | | and why
they do not; | 24 | | (2) employers, including benefits such as reduced
| 25 | | training and other costs related to reduced turnover of
| 26 | | personnel, and increased affordability of family and |
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| 1 | | medical leave
through the State, with special attention | 2 | | given to small
businesses; and | 3 | | (3) the public, including savings caused by any
| 4 | | reduction in the number of people receiving public
| 5 | | assistance. | 6 | | (c) The total amount of any expenses that the Department
| 7 | | determines are necessary to carry out its duties pursuant to
| 8 | | this Section shall be charged to the Administration Account of
| 9 | | the Fund. | 10 | | Section 55. Prohibited acts; enforcement. | 11 | | (a) No employer, temporary
employment agency, employment | 12 | | agency, employee organization,
or other person shall | 13 | | discharge, expel, or otherwise
retaliate or discriminate | 14 | | against a person because the person has requested family and | 15 | | medical leave, attempted to claim family and medical leave | 16 | | benefits, taken family and medical leave, filed or
communicated | 17 | | to the employer an intent to file a claim, a
complaint, or an | 18 | | appeal, or has testified or is about to testify
or has assisted | 19 | | in any proceeding, under this Act, at any time. | 20 | | (b) Any person who violates subsection (a) shall be liable | 21 | | to the individual employed by such a person who is affected by | 22 | | the violation for damages equal to the sum of: | 23 | | (1) the amount of: | 24 | | (A) any wages, salary, employment benefits, or | 25 | | other compensation denied or lost to such individual by |
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| 1 | | reason of the violation; or | 2 | | (B) in a case in which wages, salary, employment | 3 | | benefits, or other compensation have not been denied or | 4 | | lost to the individual, any actual monetary losses | 5 | | sustained by the individual as a direct violation, such | 6 | | as the cost of providing care, up to a sum equal to 60 | 7 | | calendar days of wages or salary for the individual; | 8 | | and | 9 | | (2) the interest on the amount described under item (A) | 10 | | calculated at the prevailing rate; and | 11 | | (3) an additional amount as liquidated damages equal to | 12 | | the sum of the amount described in item (1) and the | 13 | | interest described in item (2), except if a person who has | 14 | | violated subsection (a) proves to the satisfaction of the | 15 | | court that the act or omission was in good faith and that | 16 | | the person had reasonable grounds for believing that the | 17 | | act or omission was not a violation of subsection (a), the | 18 | | court may, in the discretion of the court, reduce the | 19 | | amount of the liability to the amount and interest | 20 | | determined under item (A) and (B), respectively. | 21 | | In addition, a court may order such equitable relief as may | 22 | | be appropriate, including employment, reinstatement, and | 23 | | promotion. | 24 | | (c) An action to recover the damages or obtain equitable | 25 | | relief subsection (a) may be maintained against any person in | 26 | | any court on behalf of: |
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| 1 | | (1) the individual; or | 2 | | (2) the individual or other individuals similarly | 3 | | situated. | 4 | | (d) The court in such an action shall, in addition to any | 5 | | judgment awarded to the plaintiff, allow a reasonable | 6 | | attorney's fee, reasonable expert witness fees, and other costs | 7 | | of the action to be paid by the defendant. | 8 | | (e) The right under subsection (c) to bring an action by or | 9 | | on behalf of any individual shall terminate: | 10 | | (1) on the filing of a complaint by the Department in | 11 | | an action in which restraint is sought of any further delay | 12 | | in the payment of the amount described in item (1) of | 13 | | subsection (b) to such individual by the person responsible | 14 | | under subsection (a) for the payment; or | 15 | | (2) on the filing of a complaint by the Department in | 16 | | an action under subsection (f) in which a recovery is | 17 | | sought of the damages described in item (1) of subsection | 18 | | (b) owing to an individual by a person liable under | 19 | | subsection (a). | 20 | | (f) Action by the Department. | 21 | | (1) The Department may bring an action in any court to | 22 | | recover the damages described in item (1) of subsection | 23 | | (b). | 24 | | (2) Any sums recovered pursuant to item (1) of this | 25 | | subsection shall be held in a special deposit account and | 26 | | shall be paid, on order of the Department, directly to each |
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| 1 | | individual affected. Any such sums not paid to an | 2 | | individual because of inability to do so within a period of | 3 | | 3 years shall be deposited into the Fund. | 4 | | (3) An action may be brought under this subsection not | 5 | | later than 3 years after the date of the last event | 6 | | constituting the alleged violation for which the action is | 7 | | brought. | 8 | | (4) An action brought by the Department under this | 9 | | subsection shall be considered to be commenced on the date | 10 | | when the complaint is filed. | 11 | | (5) The Department may bring an action to restrain | 12 | | violations of subsection (a), including the restraint of | 13 | | any withholding of payment of wages, salary, employment | 14 | | benefits, or other compensation, plus interest, found by | 15 | | the court to be due to the individual, or to award such | 16 | | other equitable relief as may be appropriate, including | 17 | | employment, reinstatement, and promotion. | 18 | | (g) A person aggrieved by a decision of the Department | 19 | | under this Act may request a hearing. The Department shall | 20 | | adopt rules governing hearings and the issuance of final orders | 21 | | under this Act in accordance with the provisions of the | 22 | | Illinois Administrative Procedure Act. All final | 23 | | administrative decisions of the Department under this Act are | 24 | | subject to judicial review under the Administrative Review Law. | 25 | | Section 60. Penalties.
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| 1 | | (a) Persons who make a false statement or representation,
| 2 | | knowing it to be false, or knowingly fails to disclose a
| 3 | | material fact to obtain or increase any family and medical | 4 | | leave benefit
during a period of family and medical leave, | 5 | | either for themselves
or for any other person, shall be liable | 6 | | for a civil penalty of
$250 to be paid to the Fund. Each such | 7 | | false statement or
representation or failure to disclose a | 8 | | material fact shall
constitute a separate offense. Upon refusal | 9 | | to pay such civil
penalty, the civil penalty shall be recovered | 10 | | in a civil action
by the Attorney General on behalf the | 11 | | Department in the name of
the State of Illinois. If, in any | 12 | | case in which liability for
the payment of a civil penalty has | 13 | | been determined, any person
who has received any benefits under | 14 | | this Act by reason of the
making of such false statements or | 15 | | representations or failure
to disclose a material fact shall | 16 | | not be entitled to any
benefits under this Act for any leave | 17 | | occurring prior to the
time he or she has discharged his or her | 18 | | liability to pay the
civil penalty. | 19 | | (b) A person who willfully violates any provision of this
| 20 | | Act or any rule adopted under this Act for which a civil
| 21 | | penalty is neither prescribed in this Act nor provided by any
| 22 | | other applicable law shall be subject to a civil penalty of
| 23 | | $500 to be paid to the Fund. Upon the refusal to pay such
civil | 24 | | penalty, the civil penalty shall be recovered in a civil
action | 25 | | by the Attorney General on behalf of the Department in
the name | 26 | | of the State of Illinois.
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| 1 | | (c) A person, employing unit, employer, or entity violating
| 2 | | any provision of this Section with intent to defraud the
| 3 | | Department is guilty of a Class C misdemeanor. The fine upon
| 4 | | conviction shall be payable to the Fund. Any penalties imposed
| 5 | | by this subsection shall be in addition to those otherwise
| 6 | | prescribed in this Section. | 7 | | Section 65. Leave and employment protection. | 8 | | (a) During a period in which an employee receives family | 9 | | leave benefits under this Act, the employee is entitled to | 10 | | family leave and, at the established ending date of leave, to | 11 | | be restored to a position of employment with the employer from | 12 | | whom leave was taken as provided under subsection (b). | 13 | | (b) Except as provided in subsection (f), an employee who
| 14 | | receives family and medical leave benefits under this Act for | 15 | | the intended
purpose of the family and medical leave is | 16 | | entitled, on return from the
leave:
| 17 | | (1) to be restored by the employer to the position of
| 18 | | employment held by the employee when the family and medical | 19 | | leave
commenced; or | 20 | | (2)
to be restored to an equivalent position with
| 21 | | equivalent employment benefits, pay, and other terms and
| 22 | | conditions of employment at a workplace within 5 miles of
| 23 | | the employee's workplace when the family and medical leave | 24 | | commenced. | 25 | | (c) The taking of family and medical leave under this Act |
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| 1 | | may not
result in the loss of any employment benefits accrued | 2 | | before
the date on which the family and medical leave | 3 | | commenced. | 4 | | (d) Nothing in this Section entitles a restored employee
| 5 | | to: | 6 | | (1) the accrual of any seniority or employment benefits
| 7 | | during any period of family and medical leave; or
| 8 | | (2) any right, benefit, or position of employment other
| 9 | | than any right, benefit, or position to which the employee
| 10 | | would have been entitled to had the employee not taken the
| 11 | | family and medical leave. | 12 | | (e) Nothing in this Section prohibits an employer from
| 13 | | requiring an employee on family and medical leave to report | 14 | | periodically to
the employer on the status and intention of the | 15 | | employee to
return to work. | 16 | | (f) An employer may deny restoration under subsection (b)
| 17 | | to a salaried employee who is among the highest paid 10% of the
| 18 | | employees employed by the employer within 75 miles of the
| 19 | | facility at which the employee is employed if:
| 20 | | (1) denial is necessary to prevent substantial and
| 21 | | grievous economic injury to the operations of the employer; | 22 | | (2) the employer notifies the employee of the intent of
| 23 | | the employer to deny restoration on such basis at the time
| 24 | | the employer determines that the injury would occur; and | 25 | | (3) the family and medical leave has commenced and the | 26 | | employee
elects not to return to employment after receiving |
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| 1 | | the
notice. | 2 | | Section 70. Notice to employer. | 3 | | (a) If the necessity for family and medical leave for the | 4 | | birth or
placement of a child or for any other reason under | 5 | | item (14) of Section 10 is foreseeable, the employee shall | 6 | | provide the employer with not
less than 30 days' notice, before | 7 | | the date the leave is to
begin, of the employee's intention to | 8 | | take leave for the birth
or placement of a child or for any | 9 | | other reason under item (14) of Section 10, except that if the | 10 | | expected date requires leave to begin in less than 30 days, the
| 11 | | employee shall provide such notice as is practical. | 12 | | Section 75. Employment by same employer. If spouses or | 13 | | parties to a civil union who are
entitled to leave under this | 14 | | Act are employed by the same
employer, the employer may not | 15 | | require that spouses or parties to a civil union not take such
| 16 | | leave concurrently. | 17 | | Section 80. Coordination of leave. | 18 | | (a) Family and medical leave taken under this Act must be | 19 | | taken
concurrently with any leave taken under the federal | 20 | | Family and
Medical Leave Act of 1993. | 21 | | (b) An employer may require that family and medical leave | 22 | | taken under
this Act be taken concurrently with
leave allowed | 23 | | under the terms of a collective bargaining
agreement or |
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| 1 | | employer policy. The employer must give employees written | 2 | | notice of this requirement. | 3 | | Section 85. Rules. The Department may adopt any rules
| 4 | | necessary to implement the provisions of this Act. In adopting
| 5 | | rules, the Department shall maintain consistency with the
| 6 | | regulations adopted to implement the Federal Family and Medical
| 7 | | Leave Act of 1993 as of the effective date of this Act to the | 8 | | extent such regulations are not in
conflict with this Act.
| 9 | | Section 90. Authority to contract. The Department may
| 10 | | contract or enter into interagency agreements with other State
| 11 | | agencies for the initial administration of the Family and | 12 | | Medical Leave Insurance Act
| 13 | | Section 175. Severability. The provisions of this Act are | 14 | | severable under Section 1.31 of the Statute on Statutes. | 15 | | Section 900. The State Finance Act is amended by adding | 16 | | Section 5.891 as follows: | 17 | | (30 ILCS 105/5.891 new) | 18 | | Sec. 5.891. The Family and Medical Leave Insurance Fund. | 19 | | Section 999. Effective date. This Act takes effect January | 20 | | 1, 2020. |
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