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Full Text of HB4724  97th General Assembly

HB4724 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4724

 

Introduced 2/3/2012, by Rep. Kelly M. Cassidy

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Illinois Family and Medical Leave Act. Contains provisions similar to those in the federal Family and Medical Leave Act of 1993. Contains provisions concerning applicability and coordination.


LRB097 13739 AEK 61639 b

 

 

A BILL FOR

 

HB4724LRB097 13739 AEK 61639 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4
ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL
5
REQUIREMENTS FOR LEAVE

 
6    Section 100. Short title. This Act may be cited as the
7Illinois Family and Medical Leave Act.
 
8    Section 101. Definitions. As used in this Article:
9    (1) (Blank).
10    (2) Eligible Employee.
11        (A) In General. The term "eligible employee" means an
12    employee who has been employed:
13            (i) for at least 12 months by the employer with
14        respect to whom leave is requested under Section 102;
15        and
16            (ii) for at least 1,250 hours of service with such
17        employer during the previous 12-month period.
18        (B) Exclusions. The term "eligible employee" does not
19    include:
20            (i) any Federal officer or employee covered under
21        Subchapter V of Chapter 63 of Title 5, United States
22        Code; or

 

 

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1            (ii) any employee of an employer who is employed at
2        a work site at which such employer employs less than 50
3        employees if the total number of employees employed by
4        that employer within 75 miles of that work site is less
5        than 50.
6        (C) Determination. For purposes of determining whether
7    an employee meets the hours of service requirement
8    specified in subparagraph (A)(ii), the legal standards
9    established under Section 7 of the Fair Labor Standards Act
10    of 1938 (29 U.S.C. 207) shall apply.
11         (D) Airline flight crews.
12            (i) Determination. For purposes of determining
13        whether an employee who is a flight attendant or flight
14        crewmember (as such terms are defined in regulations of
15        the Federal Aviation Administration) meets the hours
16        of service requirement specified in subparagraph
17        (A)(ii), the employee will be considered to meet the
18        requirement if:
19                (I) the employee has worked or been paid for
20            not less than 60 percent of the applicable total
21            monthly guarantee, or the equivalent, for the
22            previous 12-month period, for or by the employer
23            with respect to whom leave is requested under
24            Section 102; and
25                (II) the employee has worked or been paid for
26            not less than 504 hours (not counting personal

 

 

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1            commute time or time spent on vacation leave or
2            medical or sick leave) during the previous
3            12-month period, for or by that employer.
4            (ii) File. Each employer of an employee described
5        in clause (i) shall maintain on file with the Director
6        (in accordance with such regulations as the Director
7        may prescribe) containing information specifying the
8        applicable monthly guarantee with respect to each
9        category of employee to which such guarantee applies.
10            (iii) Definition. For the purposes of this
11        Section, "applicable monthly guarantee" means:
12                (I) for an employee described in clause (i)
13            other than an employee on reserve status, the
14            minimum number of hours for which an employer as
15            agreed to schedule such employee for any given
16            month; and
17                (II) for an employee described in clause (i)
18            who is on reserve status, the number of hours for
19            which an employer has agreed to pay such employee
20            on reserve status for any given month, as
21            established in the applicable collective
22            bargaining agreement or, if none exists, in the
23            employer's policies.
24    (3) Employ; Employee; State. The terms "employ",
25"employee", and "State" have the same meanings given such terms
26in subsections (c), (e), and (g) of Section 3 of the Fair Labor

 

 

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1Standards Act of 1938 (29 U.S.C. 203 (c), (e), and (g)).
2    (4) Employer.
3        (A) In general. The term "employer":
4            (i) means any person who employs 50 or more
5        employees for each working day during each of 20 or
6        more calendar workweeks in the current or preceding
7        calendar year;
8            (ii) includes:
9                (I) any person who acts, directly or
10            indirectly, in the interest of an employer to any
11            of the employees of such employer; and
12                (II) any successor in interest of an employer;
13            and
14            (iii) includes any State officer, department, or
15        agency, any unit of local government, and any school
16        district.
17        (B) (Blank).
18    (5) Employment benefits. The term "employment benefits"
19means all benefits provided or made available to employees by
20an employer, including group life insurance, health insurance,
21disability insurance, sick leave, annual leave, educational
22benefits, and pensions, regardless of whether such benefits are
23provided by a practice or written policy of an employer or
24through an "employee benefit plan", as defined in the Employee
25Retirement Income Security Act of 1974 (29 U.S.C. 1002(3)).
26    (6) Health care provider. The term "health care provider"

 

 

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1means:
2        (A) a doctor of medicine or osteopathy who is
3    authorized to practice medicine or surgery (as
4    appropriate) by the State in which the doctor practices; or
5        (B) any other person determined by the Director to be
6    capable of providing health care services.
7    (7) Parent. The term "parent" means the biological father
8or mother, adoptive father or mother, stepfather or stepmother,
9or foster father or mother of an employee or an individual who
10stood in loco parentis to an employee when the employee was a
11son or daughter.
12    (8) Person. The term "person" has the same meaning given
13such term in Section 203(a) of the Fair Labor Standards Act of
141938 (29 U.S.C. 203(a)).
15    (9) Reduced leave schedule. The term "reduced leave
16schedule" means a leave schedule that reduces the usual number
17of hours per workweek, or hours per workday, of an employee.
18    (10) Director. The term "Director" means the Director of
19Labor.
20    (11) Serious health condition. The term "serious health
21condition" means an illness, injury, impairment, or physical or
22mental condition that involves:
23        (A) inpatient care in a hospital, hospice, or
24    residential medical care facility; or
25        (B) continuing treatment by a health care provider.
26    (12) Son or daughter. The term "son or daughter" means a

 

 

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1biological, adopted, or foster child, a stepchild, a legal
2ward, or a child of a person standing in loco parentis, who is:
3        (A) under 18 years of age; or
4        (B) 18 years of age or older and incapable of self-care
5    because of a mental or physical disability.
6    (13) Spouse. The term "spouse" means a husband or wife, as
7the case may be.
8    (14) Covered active duty. The term "covered active duty"
9means:
10        (A) in the case of a member of a regular component of
11    the Armed Forces, duty during the deployment of the member
12    with the Armed Forces to a foreign country; and
13        (B) in the case of a member of a reserve component of
14    the Armed Forces, duty during the deployment of the member
15    with the Armed Forces to a foreign country under a call or
16    order to active duty under a provision of law referred to
17    in Section 101(a)(13)(B) of Title 10 of the United States
18    Code (10 U.S.C. 101(a)(13)(B)).
19    (15) Covered servicemember. The term "covered
20servicemember" means:
21        (A) a member of the Armed Forces (including a member of
22    the National Guard or Reserves) who is undergoing medical
23    treatment, recuperation, or therapy, is otherwise in
24    outpatient status, or is otherwise on the temporary
25    disability retired list, for a serious injury or illness;
26    or

 

 

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1        (B) a veteran who is undergoing medical treatment,
2    recuperation, or therapy, for a serious injury or illness
3    and who was a member of the Armed Forces (including a
4    member of the National Guard or Reserves) at any time
5    during the period of 5 years preceding the date on which
6    the veteran undergoes that medical treatment,
7    recuperation, or therapy.
8    (16) Outpatient status. The term "outpatient status", with
9respect to a covered servicemember, means the status of a
10member of the Armed Forces assigned to:
11        (A) a military medical treatment facility as an
12    outpatient; or
13        (B) a unit established for the purpose of providing
14    command and control of members of the Armed Forces
15    receiving medical care as outpatients.
16    (17) Next of kin. The term "next of kin", used with respect
17to an individual, means the nearest blood relative of that
18individual.
19    (18) Serious injury or illness. The term "serious injury or
20illness":
21        (A) in the case of a member of the Armed Forces
22    (including a member of the National Guard or Reserves),
23    means an injury or illness that was incurred by the member
24    in line of duty on active duty in the Armed Forces (or
25    existed before the beginning of the member's active duty
26    and was aggravated by service in line of duty on active

 

 

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1    duty in the Armed Forces) and that may render the member
2    medically unfit to perform the duties of the member's
3    office, grade, rank, or rating; and
4        (B) in the case of a veteran who was a member of the
5    Armed Forces (including a member of the National Guard or
6    Reserves) at any time during a period described in
7    paragraph (15)(B), means a qualifying (as defined by the
8    Secretary of Labor) injury or illness that was incurred by
9    the member in line of duty on active duty in the Armed
10    Forces (or existed before the beginning of the member's
11    active duty and was aggravated by service in line of duty
12    on active duty in the Armed Forces) and that manifested
13    itself before or after the member became a veteran.
14    (19) Veteran. The term "veteran" has the meaning given the
15term in section 101 of Title 38 of the United States Code (38
16U.S.C. 101).
 
17    Section 102. Leave requirement.
18    (a) In general.
19        (1) Entitlement to leave. Subject to Section 103, an
20    eligible employee shall be entitled to a total of 12
21    workweeks of leave during any 12-month period for one or
22    more of the following:
23            (A) Because of the birth of a son or daughter of
24        the employee and in order to care for such son or
25        daughter.

 

 

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1            (B) Because of the placement of a son or daughter
2        with the employee for adoption or foster care.
3            (C) In order to care for the spouse, or a son,
4        daughter, or parent, of the employee, if such spouse,
5        son, daughter, or parent has a serious health
6        condition.
7            (D) Because of a serious health condition that
8        makes the employee unable to perform the functions of
9        the position of such employee.
10            (E) Because of any qualifying exigency (as the
11        Director shall, by regulation, determine) arising out
12        of the fact that the spouse, or a son, daughter, or
13        parent of the employee is on covered active duty (or
14        has been notified of an impending call or order to
15        covered active duty) in the Armed Forces.
16        (2) Expiration of entitlement. The entitlement to
17    leave under subparagraphs (A) and (B) of paragraph (1) for
18    a birth or placement of a son or daughter shall expire at
19    the end of the 12-month period beginning on the date of
20    such birth or placement.
21        (3) Servicemember family leave. Subject to Section
22    103, an eligible employee who is the spouse, son, daughter,
23    parent, or next of kin of a covered servicemember shall be
24    entitled to a total of 26 workweeks of leave during a
25    12-month period to care for the servicemember. The leave
26    described in this paragraph shall only be available during

 

 

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1    a single 12-month period.
2        (4) Combined leave total. During the single 12-month
3    period described in paragraph (3), an eligible employee
4    shall be entitled to a combined total of 26 workweeks of
5    leave under paragraphs (1) and (3). Nothing in this
6    paragraph shall be construed to limit the availability of
7    leave under paragraph (1) during any other 12-month period.
8        (5) Calculation of leave for airline flight crews. The
9    Director may provide, by regulation, a method for
10    calculating the leave described in paragraph (1) with
11    respect to employees described in Section 101(2)(D).
12    (b) Leave taken intermittently or on a reduced leave
13schedule.
14        (1) In general. Leave under subparagraph (A) or (B) of
15    subsection (a)(1) shall not be taken by an employee
16    intermittently or on a reduced leave schedule unless the
17    employee and the employer of the employee agree otherwise.
18    Subject to paragraph (2), subsection (e)(2), and
19    subsection (b)(5) or (f) (as appropriate) of Section 103,
20    leave under subparagraph (C) or (D) of subsection (a)(1) or
21    under subsection (a)(3) may be taken intermittently or on a
22    reduced leave schedule when medically necessary. Subject
23    to subsection (e)(3) and section 103(f), leave under
24    subsection (a)(1)(E) may be taken intermittently or on a
25    reduced leave schedule. The taking of leave intermittently
26    or on a reduced leave schedule pursuant to this paragraph

 

 

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1    shall not result in a reduction in the total amount of
2    leave to which the employee is entitled under subsection
3    (a) beyond the amount of leave actually taken.
4        (2) Alternative position. If an employee requests
5    intermittent leave, or leave on a reduced leave schedule,
6    under subparagraph (C) or (D) of subsection (a)(1) or under
7    subsection (a)(3), that is foreseeable based on planned
8    medical treatment, the employer may require such employee
9    to transfer temporarily to an available alternative
10    position offered by the employer for which the employee is
11    qualified and that:
12            (A) has equivalent pay and benefits; and
13            (B) better accommodates recurring periods of leave
14        than the regular employment position of the employee.
15    (c) Unpaid leave permitted. Except as provided in
16subsection (d), leave granted under subsection (a) may consist
17of unpaid leave. Where an employee is otherwise exempt under
18regulations issued by the United States Secretary of Labor
19pursuant to Section 213(a)(1) of the Fair Labor Standards Act
20of 1938 (29 U.S.C. 213(a)(1)), the compliance of an employer
21with this Article by providing unpaid leave shall not affect
22the exempt status of the employee under such Section.
23    (d) Relationship to paid leave.
24        (1) Unpaid leave. If an employer provides paid leave
25    for fewer than 12 workweeks(or 26 workweeks in the case of
26    leave provided under subsection (a)(3)), the additional

 

 

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1    weeks of leave necessary to attain the 12 workweeks (or 26
2    workweeks, as appropriate) of leave required under this
3    subchapter may be provided without compensation.
4        (2) Substitution of paid leave.
5            (A) In general. An eligible employee may elect, or
6        an employer may require the employee, to substitute any
7        of the accrued paid vacation leave, personal leave, or
8        family leave of the employee for leave provided under
9        subparagraph (A), (B), or (C) of subsection (a)(1) for
10        any part of the 12-week period of such leave under such
11        subsection.
12            (B) Serious health condition. An eligible employee
13        may elect, or an employer may require the employee, to
14        substitute any of the accrued paid vacation leave,
15        personal leave, or medical or sick leave of the
16        employee for leave provided under subparagraph (C) or
17        (D) of subsection (a)(1) for any part of the 12-week
18        period of such leave under such subsection, except that
19        nothing in this Article shall require an employer to
20        provide paid sick leave or paid medical leave in any
21        situation in which such employer would not normally
22        provide any such paid leave. An eligible employee may
23        elect, or an employer may require the employee, to
24        substitute any of the accrued paid vacation leave,
25        personal leave, family leave, or medical or sick leave
26        of the employee for leave provided under subsection

 

 

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1        (a)(3) for any part of the 26-week period of such leave
2        under such subsection, except that nothing in this
3        subchapter requires an employer to provide paid sick
4        leave or paid medical leave in any situation in which
5        the employer would not normally provide any such paid
6        leave.
7    (e) Foreseeable leave.
8        (1) Requirement of notice. In any case in which the
9    necessity for leave under subparagraph (A) or (B) of
10    subsection (a)(1) is foreseeable based on an expected birth
11    or placement, the employee shall provide the employer with
12    not less than 30 days' notice, before the date the leave is
13    to begin, of the employee's intention to take leave under
14    such subparagraph, except that if the date of the birth or
15    placement requires leave to begin in less than 30 days, the
16    employee shall provide such notice as is practicable.
17        (2) Duties of employee. In any case in which the
18    necessity for leave under subparagraph (C) or (D) of
19    subsection (a)(1) is foreseeable based on planned medical
20    treatment, the employee:
21            (A) shall make a reasonable effort to schedule the
22        treatment so as not to disrupt unduly the operations of
23        the employer, subject to the approval of the health
24        care provider of the employee or the health care
25        provider of the son, daughter, spouse, parent, or
26        covered servicemember of the employee, as appropriate;

 

 

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1        and
2            (B) shall provide the employer with not less than
3        30 days' notice, before the date the leave is to begin,
4        of the employee's intention to take leave under such
5        subparagraph, except that if the date of the treatment
6        requires leave to begin in less than 30 days, the
7        employee shall provide such notice as is practicable.
8        (3) Notice for leave due to covered active duty of
9    family member. In any case in which the necessity for leave
10    under subsection (a)(1)(E) is foreseeable, whether because
11    the spouse, or a son, daughter, or parent, of the employee
12    is on covered active duty, or because of notification of an
13    impending call or order to covered active duty, the
14    employee shall provide such notice to the employer as is
15    reasonable and practicable.
16    (f) Spouses employed by the same employer.
17        (1) In general. In any case in which a husband and wife
18    entitled to leave under subsection (a) are employed by the
19    same employer, the aggregate number of workweeks of leave
20    to which both may be entitled may be limited to 12
21    workweeks during any 12-month period described in
22    subsection (a)(3), if such leave is taken:
23            (A) under subparagraph (A) or (B) of subsection
24        (a)(1); or
25            (B) to care for a sick parent under subparagraph
26        (C) of such subsection.

 

 

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1        (2) Servicemember family leave.
2            (A) In general. The aggregate number of workweeks
3        of leave to which both that husband and wife may be
4        entitled under subsection (a) may be limited to 26
5        workweeks during the single 12-month period described
6        in subsection (a)(3) if the leave is:
7                (i) leave under subsection (a)(3); or
8                (ii) a combination of leave under subsection
9            (a)(3) and leave described in paragraph (1).
10            (B) Both limitations applicable. If the leave
11        taken by the husband and wife includes leave described
12        in paragraph (1), the limitation in paragraph (1) shall
13        apply to the leave described in paragraph (1).
 
14    Section 103. Certification.
15    (a) In general. An employer may require that a request for
16leave under subparagraph (C) or (D) of paragraph (1) or
17paragraph (3) of Section 102(a) be supported by a certification
18issued by the health care provider of the eligible employee or
19of the son, daughter, spouse, or parent of the employee, or of
20the next of kin of an individual in the case of leave taken
21under such paragraph (3), as appropriate. The employee shall
22provide, in a timely manner, a copy of such certification to
23the employer.
24    (b) Sufficient certification. Certification provided under
25subsection (a) shall be sufficient if it states:

 

 

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1        (1) the date on which the serious health condition
2    commenced;
3        (2) the probable duration of the condition;
4        (3) the appropriate medical facts within the knowledge
5    of the health care provider regarding the condition;
6        (4)(A) for purposes of leave under Section
7    102(a)(1)(C), a statement that the eligible employee is
8    needed to care for the son, daughter, spouse, or parent and
9    an estimate of the amount of time that such employee is
10    needed to care for the son, daughter, spouse or parent; and
11        (B) for purposes of leave under Section 102(a)(1)(D), a
12    statement that the employee is unable to perform the
13    functions of the position of the employee;
14        (5) in the case of certification for intermittent
15    leave, or leave on a reduced leave schedule, for planned
16    medical treatment, the dates on which such treatment is
17    expected to be given and the duration of such treatment;
18        (6) in the case of certification for intermittent
19    leave, or leave on a reduced leave schedule, under Section
20    102(a)(1)(D), a statement of the medical necessity for the
21    intermittent leave or leave on a reduced leave schedule,
22    and the expected duration of the intermittent leave or
23    reduced leave schedule; and
24        (7) in the case of certification for intermittent
25    leave, or leave on a reduced leave schedule, under Section
26    102(a)(1)(C), a statement that the employee's intermittent

 

 

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1    leave or leave on a reduced leave schedule is necessary for
2    the care of the son, daughter, parent or spouse who has a
3    serious health condition, or will assist in their recovery,
4    and the expected duration and schedule of the intermittent
5    leave or reduced leave schedule.
6    (c) Second opinion.
7        (1) In general. In any case in which the employer has
8    reason to doubt the validity of the certification provided
9    under subsection (a) for leave under subparagraph (C) or
10    (D) of Section 102(a)(1), the employer may require, at the
11    expense of the employer, that the eligible employee obtain
12    the opinion of a second health care provider designated or
13    approved by the employer concerning any information
14    certified under subsection (b) for such leave.
15        (2) Limitation. A health care provider designated or
16    approved under paragraph (1) shall not be employed on a
17    regular basis by the employer.
18    (d) Resolution of conflicting opinions.
19        (1) In general. In any case in which the second opinion
20    described in subsection (c) differs from the opinion in the
21    original certification provided under subsection (a), the
22    employer may require, at the expense of the employer, that
23    the employee obtain the opinion of a third health care
24    provider designated or approved jointly by the employer and
25    the employee concerning the information certified under
26    subsection (b).

 

 

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1        (2) Finality. The opinion of the third health care
2    provider concerning the information certified under
3    subsection (b) shall be considered to be final and shall be
4    binding on the employer and the employee.
5    (e) Subsequent recertification. The employer may require
6that the eligible employee obtain subsequent recertifications
7on a reasonable basis.
8    (f) Certification related to covered active duty or call to
9covered active duty. An employer may require that a request for
10leave under Section 102(a)(1)(E) be supported by a
11certification issued at such time and in such manner as the
12Director may by regulation prescribe. If the Director issues a
13regulation requiring such certification, the employee shall
14provide, in a timely manner, a copy of such certification to
15the employer.
 
16    Section 104. Employment and benefits protection.
17    (a) Restoration to position.
18        (1) In general. Except as provided in subsection (b),
19    any eligible employee who takes leave under Section 102 for
20    the intended purpose of the leave shall be entitled, on
21    return from such leave:
22            (A) to be restored by the employer to the position
23        of employment held by the employee when the leave
24        commenced; or
25            (B) to be restored to an equivalent position with

 

 

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1        equivalent employment benefits, pay, and other terms
2        and conditions of employment.
3        (2) Loss of benefits. The taking of leave under Section
4    102 shall not result in the loss of any employment benefit
5    accrued prior to the date on which the leave commenced.
6        (3) Limitations. Nothing in this Section shall be
7    construed to entitle any restored employee to:
8            (A) the accrual of any seniority or employment
9        benefits during any period of leave; or
10            (B) any right, benefit, or position of employment
11        other than any right, benefit, or position to which the
12        employee would have been entitled had the employee not
13        taken the leave.
14        (4) Certification. As a condition of restoration under
15    paragraph (1) for an employee who has taken leave under
16    Section 102(a)(1)(D), the employer may have a uniformly
17    applied practice or policy that requires each such employee
18    to receive certification from the health care provider of
19    the employee that the employee is able to resume work,
20    except that nothing in this paragraph shall supersede a
21    valid State or local law or a collective bargaining
22    agreement that governs the return to work of such
23    employees.
24        (5) Construction. Nothing in this subsection shall be
25    construed to prohibit an employer from requiring an
26    employee on leave under Section 102 to report periodically

 

 

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1    to the employer on the status and intention of the employee
2    to return to work.
3    (b) Exemption concerning certain highly compensated
4employees.
5        (1) Denial of restoration. An employer may deny
6    restoration under subsection (a) to any eligible employee
7    described in paragraph (2) if:
8            (A) such denial is necessary to prevent
9        substantial and grievous economic injury to the
10        operations of the employer;
11            (B) the employer notifies the employee of the
12        intent of the employer to deny restoration on such
13        basis at the time the employer determines that such
14        injury would occur; and
15            (C) in any case in which the leave has commenced,
16        the employee elects not to return to employment after
17        receiving such notice.
18        (2) Affected employees. An eligible employee described
19    in paragraph (1) is a salaried eligible employee who is
20    among the highest paid 10 percent of the employees employed
21    by the employer within 75 miles of the facility at which
22    the employee is employed.
23    (c) Maintenance of health benefits.
24        (1) Coverage. Except as provided in paragraph (2),
25    during any period that an eligible employee takes leave
26    under Section 102, the employer shall maintain coverage

 

 

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1    under any "group health plan" (as defined in Section
2    5000(b)(1) of the Internal Revenue Code of 1986) for the
3    duration of such leave at the level and under the
4    conditions coverage would have been provided if the
5    employee had continued in employment continuously for the
6    duration of such leave.
7        (2) Failure to return from leave. The employer may
8    recover the premium that the employer paid for maintaining
9    coverage for the employee under such group health plan
10    during any period of unpaid leave under Section 102 if:
11            (A) the employee fails to return from leave under
12        Section 102 after the period of leave to which the
13        employee is entitled has expired; and
14            (B) the employee fails to return to work for a
15        reason other than:
16                (i) the continuation, recurrence, or onset of
17            a serious health condition that entitles the
18            employee to leave under subparagraph (C) or (D) of
19            Section 102(a)(1) or under Section 102(a)(3); or
20                (ii) other circumstances beyond the control of
21            the employee.
22        (3) Certification.
23            (A) Issuance. An employer may require that a claim
24        that an employee is unable to return to work because of
25        the continuation, recurrence, or onset of the serious
26        health condition described in paragraph (2)(B)(i) be

 

 

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1        supported by:
2                (i) a certification issued by the health care
3            provider of the son, daughter, spouse or parent of
4            the employee, as appropriate, in the case of an
5            employee unable to return to work because of a
6            condition specified in Section 102(a)(1)(C);
7                (ii) a certification issued by the health care
8            provider of the eligible employee, in the case of
9            an employee unable to return to work because of a
10            condition specified in Section 102(a)(1)(D); or
11                (iii) a certification issued by the health
12            care provider of the servicemember being cared for
13            by the employee, in the case of an employee unable
14            to return to work because of a condition specified
15            in Section 102(a)(3).
16            (B) Copy. The employee shall provide, in a timely
17        manner, a copy of such certification to the employer.
18            (C) Sufficiency of certification.
19                (i) Leave due to serious health condition of
20            employee. The certification described in
21            subparagraph (A)(ii) shall be sufficient if the
22            certification states that a serious health
23            condition prevented the employee from being able
24            to perform the functions of the position of the
25            employee on the date that the leave of the employee
26            expired.

 

 

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1                (ii) Leave due to serious health condition of
2            family member. The certification described in
3            subparagraph (A)(i) shall be sufficient if the
4            certification states that the employee is needed
5            to care for the son, daughter, spouse, or parent
6            who has a serious health condition on the date that
7            the leave of the employee expired.
 
8    Section 105. Prohibited Acts.
9    (a) Interference with rights.
10        (1) Exercise of rights. It shall be unlawful for any
11    employer to interfere with, restrain, or deny the exercise
12    of or the attempt to exercise, any right provided under
13    this Article.
14        (2) Discrimination. It shall be unlawful for any
15    employer to discharge or in any other manner discriminate
16    against any individual for opposing any practice made
17    unlawful by this Article.
18    (b) Interference with proceedings or inquiries. It shall be
19unlawful for any person to discharge or in any other manner
20discriminate against any individual because such individual:
21        (1) has filed any charge, or has instituted or caused
22    to be instituted any proceeding, under or related to this
23    Article;
24        (2) has given, or is about to give, any information in
25    connection with any inquiry or proceeding relating to any

 

 

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1    right provided under this Article; or
2        (3) has testified, or is about to testify, in any
3    inquiry or proceeding relating to any right provided under
4    this Article.
 
5    Section 106. Investigative authority.
6    (a) In general. To ensure compliance with the provisions of
7this Article, or any rule or order issued under this Article,
8the Director shall have, subject to subsection (c), the
9authority to investigate complaints.
10    (b) Obligation to keep and preserve records. Any employer
11shall make, keep, and preserve records pertaining to compliance
12with this Article in accordance with rules adopted by the
13Director.
14    (c) Required submissions generally limited to an annual
15basis. The Director shall not under the authority of this
16Section require any employer or any plan, fund, or program to
17submit to the Director any books or records more than once
18during any 12-month period, unless the Director has reasonable
19cause to believe there may exist a violation of this Article or
20any rule or order issued pursuant to this Article, or is
21investigating a charge pursuant to Section 107(b).
22    (d) Subpoena powers. For the purposes of any investigation
23provided for in this Section, the Director shall have the
24authority to issue subpoenas.
 

 

 

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1    Section 107. Enforcement.
2    (a) Civil action by employees.
3        (1) Liability. Any employer who violates Section 105
4    shall be liable to any eligible employee affected:
5            (A) for damages equal to:
6                (i) the amount of:
7                    (I) any wages, salary, employment
8                benefits, or other compensation denied or lost
9                to such employee by reason of the violation; or
10                    (II) in a case in which wages, salary,
11                employment benefits, or other compensation
12                have not been denied or lost to the employee,
13                any actual monetary losses sustained by the
14                employee as a direct result of the violation,
15                such as the cost of providing care, up to a sum
16                equal to 12 weeks (or 26 weeks, in a case
17                involving leave under Section 102(a)(3)) of
18                wages or salary for the employee;
19                (ii) the interest on the amount described in
20            clause (i) calculated at the rate of interest on
21            judgments set forth in Section 2-1303 of the Code
22            of Civil Procedure; and
23                (iii) an additional amount as liquidated
24            damages equal to the sum of the amount described in
25            clause (i) and the interest described in clause
26            (ii), except that if an employer who has violated

 

 

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1            Section 105 proves to the satisfaction of the court
2            that the act or omission which violated Section 105
3            was in good faith and that the employer had
4            reasonable grounds for believing that the act or
5            omission was not a violation of Section 105, such
6            court may, in the discretion of the court, reduce
7            the amount of the liability to the amount and
8            interest determined under clauses (i) and (ii),
9            respectively; and
10            (B) for such equitable relief as may be
11        appropriate, including employment, reinstatement, and
12        promotion.
13        (2) Right of action. An action to recover the damages
14    or equitable relief prescribed in paragraph (1) may be
15    maintained against any employer (including a public
16    agency) in the circuit court by any one or more employees
17    for and in behalf of:
18            (A) the employees; or
19            (B) the employees and other employees similarly
20        situated.
21        (3) Fees and costs. The court in such an action shall,
22    in addition to any judgment awarded to the plaintiff, allow
23    a reasonable attorney's fee, reasonable expert witness
24    fees, and other costs of the action to be paid by the
25    defendant.
26        (4) Limitations. The right provided by paragraph (2) to

 

 

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1    bring an action by or on behalf of any employee shall
2    terminate:
3            (A) on the filing of a complaint by the Director in
4        an action under subsection (d) in which restraint is
5        sought of any further delay in the payment of the
6        amount described in paragraph (1)(A) to such employee
7        by an employer responsible under paragraph (1) for the
8        payment; or
9            (B) on the filing of a complaint by the Director in
10        an action under subsection (b) in which a recovery is
11        sought of the damages described in paragraph (1)(A)
12        owing to an eligible employee by an employer liable
13        under paragraph (1), unless the action described in
14        subparagraph (A) or (B) is dismissed without prejudice
15        on motion of the Director.
16    (b) Action by the Director.
17        (1) Administrative action. The Director shall receive,
18    investigate, and attempt to resolve complaints of
19    violations of Section 105.
20        (2) Civil action. The Director may bring an action in
21    the circuit court to recover the damages described in
22    subsection (a)(1)(A).
23        (3) Sums recovered. Any sums recovered by the Director
24    pursuant to paragraph (2) shall be held in a special
25    deposit account and shall be paid, on order of the
26    Director, directly to each employee affected. Any such sums

 

 

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1    not paid to an employee because of inability to do so
2    within a period of 3 years shall be deposited into the
3    General Revenue Fund.
4    (c) Limitation.
5        (1) In general. Except as provided in paragraph (2), an
6    action may be brought under this Section not later than 2
7    years after the date of the last event constituting the
8    alleged violation for which the action is brought.
9        (2) Willful violation. In the case of such action
10    brought for a willful violation of Section 105, such action
11    may be brought within 3 years of the date of the last event
12    constituting the alleged violation for which such action is
13    brought.
14        (3) Commencement. In determining when an action is
15    commenced by the Director under this Section for the
16    purposes of this subsection, it shall be considered to be
17    commenced on the date when the complaint is filed.
18    (d) Action for injunction by Director. The circuit court
19shall have jurisdiction, for cause shown, in an action brought
20by the Director:
21        (1) to restrain violations of Section 105, including
22    the restraint of any withholding of payment of wages,
23    salary, employment benefits, or other compensation, plus
24    interest, found by the court to be due to eligible
25    employees; or
26        (2) to award such other equitable relief as may be

 

 

HB4724- 29 -LRB097 13739 AEK 61639 b

1    appropriate, including employment, reinstatement, and
2    promotion.
 
3    Section 108. Special rules concerning employees of local
4educational agencies.
5    (a) Application.
6        (1) In general. Except as otherwise provided in this
7    Section, the rights (including the rights under Section
8    104, which shall extend throughout the period of leave of
9    any employee under this Section), remedies, and procedures
10    under this Article shall apply to:
11            (A) any "local educational agency" (as defined in
12        Section 1471(12) of the Elementary and Secondary
13        Education Act of 1965 (20 U.S.C. 2891(12)) and an
14        eligible employee of the agency; and
15            (B) any private elementary or secondary school and
16        an eligible employee of the school.
17        (2) Definitions. For purposes of the application
18    described in paragraph (1):
19            (A) Eligible employee. The term "eligible
20        employee" means an eligible employee of an agency or
21        school described in paragraph (1).
22            (B) Employer. The term "employer" means an agency
23        or school described in paragraph (1).
24    (b) (Blank).
25    (c) Intermittent leave or leave on a reduced schedule for

 

 

HB4724- 30 -LRB097 13739 AEK 61639 b

1instructional employees.
2        (1) In general. Subject to paragraph (2), in any case
3    in which an eligible employee employed principally in an
4    instructional capacity by any such educational agency or
5    school requests leave under subparagraph (C) or (D) of
6    Section 102(a)(1) or under Section 102(a)(3) that is
7    foreseeable based on planned medical treatment and the
8    employee would be on leave for greater than 20 percent of
9    the total number of working days in the period during which
10    the leave would extend, the agency or school may require
11    that such employee elect either:
12            (A) to take leave for periods of a particular
13        duration, not to exceed the duration of the planned
14        medical treatment; or
15            (B) to transfer temporarily to an available
16        alternative position offered by the employer for which
17        the employee is qualified, and that:
18                (i) has equivalent pay and benefits; and
19                (ii) better accommodates recurring periods of
20            leave than the regular employment position of the
21            employee.
22        (2) Application. The elections described in
23    subparagraphs (A) and (B) of paragraph (1) shall apply only
24    with respect to an eligible employee who complies with
25    Section 102(e)(2).
26    (d) Rules applicable to periods near the conclusion of an

 

 

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1academic term. The following rules shall apply with respect to
2periods of leave near the conclusion of an academic term in the
3case of any eligible employee employed principally in an
4instructional capacity by any such educational agency or
5school:
6        (1) Leave more than 5 weeks prior to end of term. If
7    the eligible employee begins leave under Section 102 more
8    than 5 weeks prior to the end of the academic term, the
9    agency or school may require the employee to continue
10    taking leave until the end of such term, if:
11            (A) the leave is of at least 3 weeks duration; and
12            (B) the return to employment would occur during the
13        3-week period before the end of such term.
14        (2) Leave less than 5 weeks prior to end of term. If
15    the eligible employee begins leave under subparagraph (A),
16    (B), or (C) of Section 102(a)(1) or under Section 102(a)3
17    during the period that commences 5 weeks prior to the end
18    of the academic term, the agency or school may require the
19    employee to continue taking leave until the end of such
20    term, if:
21            (A) the leave is of greater than 2 weeks duration;
22        and
23            (B) the return to employment would occur during the
24        2-week period before the end of such term.
25        (3) Leave less than 3 weeks prior to end of term. If
26    the eligible employee begins leave under subparagraph (A),

 

 

HB4724- 32 -LRB097 13739 AEK 61639 b

1    (B), or (C) of Section 102(a)(1) or under Section 102(a)3
2    during the period that commences 3 weeks prior to the end
3    of the academic term and the duration of the leave is
4    greater than 5 working days, the agency or school may
5    require the employee to continue to take leave until the
6    end of such term.
7    (e) Restoration to equivalent employment position. For
8purposes of determinations under Section 104(a)(1)(B)
9(relating to the restoration of an eligible employee to an
10equivalent position), in the case of a local educational agency
11or a private elementary or secondary school, such determination
12shall be made on the basis of established school board policies
13and practices, private school policies and practices, and
14collective bargaining agreements.
15    (f) Reduction of the amount of liability. If a local
16educational agency or a private elementary or secondary school
17that has violated this Article proves to the satisfaction of
18the court that the agency, school, or department had reasonable
19grounds for believing that the underlying act or omission was
20not a violation of this Article, such court may, in the
21discretion of the court, reduce the amount of the liability
22provided for under Section 107(a)(1)(A) to the amount and
23interest determined under clauses (i) and (ii), respectively,
24of such Section.
 
25    Section 109. Notice.

 

 

HB4724- 33 -LRB097 13739 AEK 61639 b

1    (a) In general. Each employer shall post and keep posted,
2in conspicuous places on the premises of the employer where
3notices to employees and applicants for employment are
4customarily posted, a notice, to be prepared or approved by the
5Director, setting forth excerpts from, or summaries of, the
6pertinent provisions of this Article and information
7pertaining to the filing of a charge.
8    (b) Penalty. Any employer that willfully violates this
9Section may be assessed a civil money penalty not to exceed
10$100 for each separate offense.
 
11
ARTICLE II. (BLANK)

 
12
ARTICLE III. (BLANK)

 
13
ARTICLE IV. MISCELLANEOUS PROVISIONS

 
14    Section 401. Effect on other laws.
15    (a) State antidiscrimination laws. Nothing in this Act
16shall be construed to modify or affect any State law
17prohibiting discrimination on the basis of race, religion,
18color, national origin, sex, age, or disability.
19    (b) State and local laws. Nothing in this Act shall be
20construed to supersede any provision of any State or local law
21that provides greater family or medical leave rights than the
22rights established under this Act.
 

 

 

HB4724- 34 -LRB097 13739 AEK 61639 b

1    Section 402. Effect on existing employment benefits.
2    (a) More protective. Nothing in this Act shall be construed
3to diminish the obligation of an employer to comply with any
4collective bargaining agreement or any employment benefit
5program or plan that provides greater family or medical leave
6rights to employees than the rights established under this Act.
7    (b) Less protective. The rights established for employees
8under this Act shall not be diminished by any collective
9bargaining agreement or any employment benefit program or plan.
 
10    Section 403. Encouragement of more generous leave
11policies. Nothing in this Act shall be construed to discourage
12employers from adopting or retaining leave policies more
13generous than any policies that comply with the requirements
14under this Act.
 
15    Section 404. Rules. The Director shall prescribe such
16rules as are necessary to carry out this Act not later than 120
17days after the effective date of this Act.
 
18    Section 404.1. Applicability; coordination.
19    (1) In the case of a collective bargaining agreement in
20effect on the effective date of this Act, Article I shall apply
21on the earlier of:
22        (A) the date of the termination of such agreement; or

 

 

HB4724- 35 -LRB097 13739 AEK 61639 b

1        (B) the date that occurs 12 months after the effective
2    date of this Act.
3    (2) Nothing in this Act shall be construed to limit the
4applicability of the federal Family and Medical Leave Act of
51993 with regard to employers and employees covered by that
6Act.
7    (3) In the case of leave that is subject to the federal
8Family and Medical Leave Act of 1993:
9        (A) the 12-month period during which 12 workweeks (or
10    26 weeks, in a case involving leave under Section
11    102(a)(3)) of leave may be taken under this Act shall run
12    concurrently with the 12-month period under the federal
13    Family and Medical Leave Act of 1993, and shall commence
14    the date leave taken under the federal Family and Medical
15    Leave Act of 1993 commences; and
16        (B) leave taken under this Act shall run concurrently
17    with leave taken under the federal Family and Medical Leave
18    Act of 1993.
19    (4) The aggregate amount of leave taken under this Act or
20the federal Family and Medical Leave Act of 1993, or both,
21shall not exceed 12 workweeks (or 26 weeks, in a case involving
22leave under Section 102(a)(3)) in a 12-month period.