SB3120 102ND GENERAL ASSEMBLY

LRB102 24118 SPS 33344 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB3120

Introduced 1/11/2022, by Sen. Melinda Bush

SYNOPSIS AS INTRODUCED:

New Act

Creates the Illinois Support Through Loss Act. Requires an employer to grant to each employee 24 hours of paid leave time on the employee's first workday of each calendar year. Provides that the employee shall use the paid leave time as needed during that calendar year for either (i) an absence resulting from a pregnancy loss; an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure; a failed adoption match or an adoption that is not finalized because it is contested by another party; a failed surrogacy arrangement; or a diagnosis or event that impacts pregnancy or fertility; or (ii) an absence to care for a spouse or domestic partner who experiences a circumstance described in item (i). Requires paid leave time to be provided upon the oral or written request of an employee. Provides that any paid leave time granted shall not carry over from one calendar year to the next. Provides that any employer with a paid leave policy that is sufficient to meet the requirements of the Act shall not be required to grant an employee additional paid leave time in accordance with the Act. Prohibits an employer from requiring the employee to find a replacement employee to cover the hours during which the employee is using paid leave time. Provides that an employer is not required to provide an employee with reimbursement for granted paid leave time that has not been used. Prohibits an employer from retaliating against an employee who uses paid leave time or files a complaint alleging a violation of the Act. Exempts from the requirements of the Act an employer who is subject to the Railway Labor Act, the Railroad Unemployment Insurance Act, the Federal Employers' Liability Act, or other comparable federal law. Provides that the Director of Labor shall administer and enforce the Act. Grants an employee the right to bring an action to recover damages. Grants the Department of Labor rulemaking authority.

A BILL FOR

AN ACT concerning employment.

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

Section 1. Short title. This Act may be cited as the Illinois Support Through Loss Act.

Section 5. Findings. The General Assembly finds and declares that pregnancy loss is a traumatic and life-altering experience for those who develop pregnancies and their families. 10% to 15% of pregnancies end in miscarriage, with most pregnancy loss happening in the first trimester, before the 12th week of pregnancy. One in 6 women who have a miscarriage or an ectopic pregnancy suffer from long-term post-traumatic stress, with approximately 15% of those who experience pregnancy loss developing severe depression or anxiety to the state of clinical diagnosis. Pregnancy loss not only has physical impacts, but mental and psychosocial implications. The General Assembly further acknowledges the disparities affecting Black individuals, Indigenous individuals, and people of color who often experience nearly twice the rate of pregnancy loss than those of their white counterparts. Individuals need time to process and address their own health needs and the health needs of their partners during the period following a pregnancy loss, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, a failed adoption arrangement, a failed surrogacy arrangement, or a diagnosis or event that impacts pregnancy or fertility. Providing paid leave time after pregnancy loss is critical for individuals to address both their mental and physical needs.

Section 10. Definitions. As used in this Act:

"Assisted reproduction" means a method of achieving a pregnancy through an artificial insemination or an embryo transfer and includes gamete and embryo donation. "Assisted reproduction" does not include any pregnancy achieved through sexual intercourse.

"Department" means the Department of Labor.

"Domestic partner", used with respect to an unmarried employee, includes:

(1) the person recognized as the domestic partner of the employee under any domestic partnership or civil union law of a state or political subdivision of a state; and

(2) an unmarried adult person who is in a committed, personal relationship with the employee, who is not a domestic partner as described in paragraph (1) to or in such a relationship with any other person, and who is designated to the employee's employer by such employee as that employee's domestic partner.

"Employee" means any person employed by an employer. "Employee" includes a person employed on a full-time or part-time basis or as a participant in a work assignment as a condition of receipt of federal or State income-based public assistance.

"Employer" means any of the following:

(1) any agency of the State;

(2) any unit of local government or school district; or

(3) any person that employs at least one employee.

"Employment benefits" means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer.

"Paid leave time" means an increment of compensated leave that can be granted to an employee for use during an absence from employment for any reason described in Section 15.

Section 15. Paid leave time. An employer shall grant to each employee 24 hours of paid leave time on the employee's first workday of each calendar year. The employee shall use the paid leave time as needed during that calendar year for either of the following:

(1) An absence resulting from:

(A) a pregnancy loss;

(B) an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure;

(C) a failed adoption match or an adoption that is not finalized because it is contested by another party;

(D) a failed surrogacy arrangement; or

(E) a diagnosis or event that impacts pregnancy or fertility.

(2) An absence to care for a spouse or domestic partner who experiences a circumstance described in paragraph (1) of this Section.

Section 20. Procedures. Paid leave time shall be provided upon the oral or written request of an employee. Such request shall:

(1) include the expected duration of the period of such time; and

(2) be provided as soon as practicable after the employee is aware of the need for such period.

Section 25. Carryover. Paid leave time granted under this Act shall not carry over from one calendar year to the next.

Section 30. Existing employment benefits. Any employer with a paid leave policy who makes available an amount of paid leave that is sufficient to meet the requirements of this Act and that is made available for all stated reasons and under all stated conditions that are the same as the reasons and conditions outlined in Section 15 shall not be required to grant an employee additional paid leave time under this Act.

Section 35. Prohibition. An employer may not require, as a condition of providing paid leave time to an employee under this Act, that the employee search for or find a replacement employee to cover the hours during which the employee is using paid leave time.

Section 40. Limitations. Nothing in this Act shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for granted paid leave time that has not been used.

Section 45. Retaliation prohibited. An employer shall not deny an employee the right to use paid leave time in accordance with this Act or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using paid leave time, attempting to exercise the right to use paid leave time, filing a complaint with the Illinois Department of Labor or alleging a violation of this Act, cooperating in an investigation or prosecution of an alleged violation of this Act, or opposing any policy or practice or act that is prohibited by this Act. Nothing in this Section prohibits an employer from applying the terms and conditions set forth in the employment benefit plan or paid time off policy applicable to paid leave time.

Section 50. Employments exempted from coverage.

(a) This Act does not apply to an employee of an employer subject to the provisions of Title II of the Railway Labor Act (45 U.S.C. 181 et seq.) or to an employer or employee as defined in either the federal Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.) or the Federal Employers' Liability Act (45 U.S.C. 51-60), or other comparable federal law.

(b) Nothing in this Act shall be construed to invalidate, diminish, or otherwise interfere with any collective bargaining agreement nor shall it be construed to invalidate, diminish, or otherwise interfere with any party's power to collectively bargain such an agreement.

(c) This Act does not apply to any other employment expressly exempted under rules adopted by the Department as necessary to implement this Act in accordance with applicable State and federal law.

Section 55. Enforcement.

(a) Department of Labor.

(1) The Director or his or her authorized representative shall administer and enforce the provisions of this Act. Any employee or a representative of employees who believes his or her rights under this Act have been violated may, within 3 years after the alleged violation occurs, file a complaint with the Department requesting a review of the alleged violation. A copy of the complaint shall be sent to the person who allegedly committed the violation, who shall be the respondent. Upon receipt of a complaint, the Director shall cause such investigation to be made as he or she deems appropriate. The investigation shall provide an opportunity for a public hearing at the request of any party to the review to enable the parties to present information relating to the alleged allegation. The parties shall be given written notice of the time and place of the hearing at least 7 days before the hearing. Upon receiving the report of the investigation, the Director shall make findings of fact. If the Director finds that a violation did occur, he or she shall issue a decision incorporating his or her findings and requiring the party committing the violation to take such affirmative action to abate the violation as the Director deems appropriate, including:

(A) damages equal to the amount of wages, salary, employment benefits, public assistance, or other compensation denied or lost to such individual by reason of the violation, and the interest on that amount calculated at the prevailing rate;

(B) such equitable relief as may be appropriate, including, but not limited to, hiring, reinstatement, promotion, and reasonable accommodations; and

(C) reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the respondent to a prevailing employee.

If the Director finds that there was no violation, he or she shall issue an order denying the complaint. An order issued by the Director under this Section shall be final and subject to judicial review under the Administrative Review Law.

(2) The Director shall adopt rules necessary to administer and enforce this Act in accordance with the Illinois Administrative Procedure Act. The Director shall have the powers and the parties shall have the rights provided in the Illinois Administrative Procedure Act for contested cases, including, but not limited to, provisions for depositions, subpoena power and procedures, and discovery and protective order procedures.

(b) Refusal to pay damages. Any employer who has been ordered by the Director of Labor or the court to pay damages under this Section and who fails to do so within 30 days after the order is entered is liable to pay a penalty of 1% per calendar day to the employee for each day of delay in paying the damages to the employee.

Section 60. Effect on other laws and employment benefits.

(a) More protective laws, agreements, programs, and plans. Nothing in this Act shall be construed to supersede any provision of any federal, State, or local law, collective bargaining agreement, or employment benefits program or plan that provides greater paid leave benefits than those provided under this Act.

(b) Less protective laws, agreements, programs, and plans. The rights established for employees under this Act shall not be diminished by any local law, collective bargaining agreement, or employment benefits program or plan unless otherwise required by federal or state law.

Section 65. Severability. If any provision of this Act or the application of such provision to any person or circumstance is held to be in violation of the United States Constitution or Illinois Constitution, the remainder of the provisions of this Act and the application of those provisions to any person or circumstance shall not be affected.

Section 70. Rules. The Department may adopt rules to implement this Act.