SB1723sam001 101ST GENERAL ASSEMBLY

Sen. Ram Villivalam

Filed: 3/13/2019

10100SB1723sam001 LRB101 08318 JLS 57685 a

AMENDMENT TO SENATE BILL 1723

AMENDMENT NO. ______. Amend Senate Bill 1723 by replacing everything after the enacting clause with the following:

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

Section 5. Declaration of policy and intent.

(a) Many workers do not have access to family and medical leave programs, and those who do may not be in a financial position to take family or medical leave that is unpaid, and employer-paid benefits meet only a relatively small part of this need. It is the public policy of this State to protect working families against the economic hardship caused by the need to take time off from work to care for themselves or family members who are suffering from a serious illness or to care for a newborn or a newly adopted child.

Moreover, many women are single mothers or the primary breadwinners for their families. If any of these women take an unpaid maternity leave, her whole family, and Illinois, suffers.

The United States is the only industrialized nation in the world that does not have a mandatory workplace-based program for such income support.

It is therefore desirable and necessary to develop systems that help families adapt to the competing interests of work and home which not only benefit workers, but also benefit employers by reducing employee turnover and increasing worker productivity.

(b) It is the intent of the General Assembly to create a family and medical leave program to relieve the serious menace to health, morals, and welfare of Illinois families, to increase workplace productivity, and to alleviate the enormous and growing stress on working families of balancing the demands of work and family needs.

Section 10. Definitions. In this Act:

(1) "Average weekly wage" means the amount derived by dividing by 12 an employee's total wages, including gratuities and commissions that constitute remuneration, earned during the 12 weeks preceding application for family and medical leave benefits, or the most recent 12 weeks of employment if the individual is not currently employed.

(2) "Base hours" means the hours of work for which an employee receives compensation. "Base hours" includes overtime hours for which the employee is paid additional or overtime compensation and hours for which the employee receives workers' compensation benefits. "Base hours" also includes hours an employee would have worked except for having been in military service. "Base hours" also includes hours for which the employee receives other types of compensation, such as administrative, personal leave, vacation or sick leave, or paid time off.

(3) "Care" includes, but is not limited to, physical care, emotional support, visitation, arranging for a change in care, assistance with essential daily living matters, and personal attendant services.

(4) "Child" means a biological, adopted, or foster child, stepchild, or legal ward of an employee, or a child for whom an employee is standing in loco parentis, a child of the spouse of an employee, or a child of a party to a civil union, or any other individual whose close association with the employee is the equivalent of a child.

(5) "Civil union" means a civil union as defined in the Illinois Religious Freedom Protection and Civil Union Act.

(6) "Consecutive leave" means leave that is taken without interruption based upon an employee's regular work schedule and does not include breaks in employment in which an employee is not regularly scheduled to work. For example, when an employee is normally scheduled to work from September through June and is not scheduled to work during July and August, a leave taken continuously during May, June, and September shall be considered a consecutive leave.

(7) "Covered employee" means (a) an individual employed by the same employer, as defined in paragraph (12), in the State of Illinois for 12 weeks or more who has worked 240 or more base hours. This threshold must be met annually, however, once the annual threshold is met, the covered employee shall be able to use family and medical leave. A covered employee is considered to be employed in the State of Illinois if (i) the individual works in Illinois; (ii) the individual performs some work in Illinois and the employer's base of operations or the place from which the work is directed and controlled is in Illinois; or (iii) the base of operations or place from which the work is directed or controlled is not in any state in which some part of the work is performed, but the individual's residence is in this state.

(8) "Department" means the Department of Employment Security.

(9) "Director" means the Director of Employment Security and any transaction or exercise of authority by the Director shall be deemed to be performed by the Department.

(10)"Employ" means to suffer or permit to work.

(11)"Employee" means any person who works for an employer for wage, remuneration, or other compensation. This includes persons working any number of hours, including full-time or part-time status. "Employee" does not include (i) any employee as defined in the federal Railroad Unemployment Insurance Act (45 U.S.C 351) or (ii) any person who the employer establishes:

(A) has been and will continue to be free from control and direction over the performance of their work, both under a contract of service and in fact;

(B) is engaged in an independently established trade, occupation, profession or business; or

(C) is deemed a legitimate sole proprietor or partnership. A sole proprietor or partnership shall be deemed to be legitimate if the employer establishes that:

(i) the sole proprietor or partnership is performing the service free from the direction or control over the means and manner of providing the service, subject only to the right of the employer for whom the service is provided to specify the desired result;

(ii) the sole proprietor or partnership is not subject to cancellation or destruction upon severance of the relationship with the employer;

(iii) the sole proprietor or partnership has a substantial investment of capital in the sole proprietorship or partnership beyond the ordinary tools and equipment and a personal vehicle;

(iv) the sole proprietor or partnership owns the capital goods and gains the profits and bears the losses of the sole proprietorship or partnership;

(v) the sole proprietor or partnership makes its services available to the general public on a continuing basis;

(vi) the sole proprietor or partnership includes services rendered on a federal Income Tax Schedule as an independent business or profession;

(vii) the sole proprietor or partnership performs services for the contractor under the sole proprietor or partnership's name;

(viii) when the services being provided require a license or permit, the sole proprietor or partnership obtains and pays for the license or permit in the sole proprietorship's or partnership's name;

(ix) the sole proprietor or partnership furnishes the tools and equipment necessary to provide the service;

(x) if necessary, the sole proprietor or partnership hires its own employees without approval of the employer, pays the employees without reimbursement from the employer and reports the employees' income to the Internal Revenue Service;

(xi) the employer does not represent the sole proprietorship or partnership as an employee of the employer to the public; and

(xii) the sole proprietor or partnership has the right to perform similar services for others on whatever basis and whenever it chooses.

(12) "Employer" means any individual, person, partnership, association, limited liability company, trust, estate, joint-stock company, insurance company, employment and labor placement agency, or business where wages are made directly or indirectly by the agency or business for work undertaken by the employee under hire to a third party pursuant to a contract between the agency or business with the third party, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or person that has in its employ one or more employees performing services for it as a covered employee. "Employer" also includes any employer subject to the Unemployment Insurance Act, except the State, its political subdivisions, and any instrumentality of the State. All employees performing services within this State for any employing unit that maintains 2 or more separate establishments within this State shall be deemed to be employed by a single employing unit for all purposes of this Act.

(13) "Family member" means an employee's child, spouse, party to a civil union, parent, or any other individual related by blood or whose close relationship with the employee is the equivalent of a family relationship, as determined by the employee.

(14) "Family and medical leave" means leave taken by a covered employee from work with an employer:

(A) to participate in the providing of care, including physical or psychological care, for a family member of the covered employee made necessary by a serious health condition of the family member;

(B) to be with a child during the first 12 months after the child's birth, if the employee, the employee's spouse, or the party to a civil union with the employee, is a biological parent of the child, or the first 12 months after the placement of the child for adoption or foster care with the employee, the first 12 months after the child becomes the legal ward of the employee, the employee's spouse, or the party to a civil union with the employee, or the first 12 months after the employee, the employee's spouse, or the party to a civil union with the employee acquires loco parentis status of the child;

(C) for the employee's own serious health condition;

(D) because of any qualifying exigency as interpreted under the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)(E) and 29 CFR 825.126) as of the effective date of this Act arising out of the fact that the spouse, party to a civil union, child, parent of the employee, or any other individual related by blood or whose close relationship with the employee is equivalent to a family relationship is on active duty (or has been notified of an impending call or order to active duty) in the armed forces as of the United States; or

(E) because the employee or the employee's family member is the victim of domestic violence as defined in Section 103(3) of the Illinois Domestic Violence Act of 1986, or sexual violence, which means: (1) any conduct proscribed by Article 11 of the Criminal Code of 2012 except Sections 11-35 and 11-45; (ii) Sections 12-7.3, 12-7.4, and 12-7.5 of the Illinois Criminal Code of 2012; or (iii) a similar provision of the Criminal Code of 1961. "Family and medical leave" does not include any period of time during which an employee is paid benefits pursuant to the Workers' Compensation Act because the employee is unable to perform the duties of the employee's employment due to the employee's own disability, or paid benefits pursuant to the Unemployment Insurance Act.

(15) "Family and medical leave benefits" means any payments that are payable to a covered employee for all or part of a period of family and medical leave.

(16) "Health care provider" means any person licensed under federal, State, or local law or the laws of a foreign nation to provide health care services or any other person who has been authorized to provide health care by a licensed health care provider.

(17) "Intermittent leave" means a non-consecutive leave consisting of intervals, each of which is at least one, but fewer than 12, weeks within a consecutive 12-month period.

(18) "Parent" means a biological parent, foster parent, adoptive parent, or stepparent of the employee or a person who was a legal guardian of, or who stood in loco parentis to, the employee when the employee was a child, or any other individual whose close association with the employee is the equivalent of a parent.

(19) "Placement for adoption" means the time when an employee adopts a child or becomes responsible for a child pending adoption by the eligible employee.

(20) "Serious health condition" means an illness, injury, impairment, or physical or mental condition that requires inpatient care in a hospital, hospice, or residential medical care facility or continuing medical treatment or continuing supervision by a health care provider.

(21) "12-month period" means, with respect to an employee who establishes a valid claim for family and medical leave benefits during a period of family and medical leave, the 365 consecutive days that begin with the first day that the employee first establishes the claim.

(22) "Victim services organization" means a nonprofit, nongovernmental organization that provides assistance to victims of domestic or sexual violence, including rape crisis centers, organizations carrying out a domestic violence program, organizations operating a shelter or providing counseling services, or a legal services organization or other organization providing assistance through the legal process.

Section 15. Family and medical leave insurance program.

(a) The Department shall establish and administer a family and medical leave insurance program.

(b) The Department shall establish procedures and forms for filing claims for benefits under this Act.

(c) The Department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records by the Department.

(d) Information contained in the files and records pertaining to an employee under this Act is confidential and not open to public inspection, other than to public employees in the performance of their official duties. However, the employee or an authorized representative of an employee may review the records or receive specific information from the records on the presentation of the signed authorization of the employee. An employer or the employer's duly authorized representative may review the records of an employee employed by the employer in connection with a pending claim. At the Department's discretion, other persons may review records when such persons are rendering assistance to the Department at any stage of the proceedings on any matter pertaining to the administration of this Act.

An employer must keep at its place of business records of employment from which the information needed by the Department for purposes of this Act may be obtained. The records shall at all times be open to the inspection of the Department pursuant to rules adopted by the Department.

(e) The Department shall develop and implement an outreach program to ensure that individuals who may be eligible to receive family and medical leave benefits under this Act are made aware of these benefits. Outreach information shall explain, in an easy to understand format, eligibility requirements, the claims process, weekly benefit amounts, maximum benefits payable, notice requirements, reinstatement and nondiscrimination rights, confidentiality, and coordination of leave under this Act and other laws, collective bargaining agreements, and employer policies. Outreach information shall be available in English and in languages other than English that are spoken as a primary language by a significant portion of the State's population, as determined by the Department.

(f) A covered employee may make a claim for benefits under this Act on and after January 1 of the year one year after the Department begins collecting employee payroll premium deductions and employer premium contributions under this Act.

Section 20. Eligibility for benefits.

(a) The Department may require that a claim for family and medical leave benefits under this Act be supported by a certification. For a claim for family and medical leave under paragraph (A), (B), or (C) of item (14) of Section 10, the certification shall be issued by a health care provider of the employee's choosing who is providing care to the employee or the employee's family member if applicable. For a claim for family and medical leave under paragraph (E) of item (14) of Section 10, any one of the following is acceptable for certification, and only one of the following documents shall be required: a police report, court document, document issued by a healthcare provider, or a signed statement from an attorney, a member of the clergy, or a victim services organization or advocate. It is up to the employee to determine which documentation to submit. If a document has been submitted, the Department or the employer shall not request or require any other document if the reason for the initial or subsequent claims for family and medical leave is related to the same incident of violence or the same perpetrator of the violence.

(b) The eligibility of an employee for benefits is not affected by a strike or lockout at the factory, establishment, or other premises at which the employee is or was last employed.

(c) An employee who has received benefits under this Act may not lose any other employment benefits, including seniority or pension rights, accrued before the date that family and medical leave commenced. The employer shall maintain during any period of family and medical leave taken the health benefits of the employee and, if applicable, the employee's dependents, in force at the time a request for family and medical leave was made, for the duration of such leave as if the employee had continued to work from the date the employee commenced the family and medical leave until the date the employee returns to work. However, this Section does not entitle an employee to accrue employment benefits during a period of family and medical leave or to a right, benefit, or position of employment other than a right, benefit, or position to which the employee would have been entitled had the employee not taken family and medical leave.

(d) This Act does not diminish an employer's obligation to comply with a collective bargaining agreement or an employment benefits program or plan that provides greater benefits to employees than the benefits provided under this Act.

(e) An agreement by an employee to waive the employee's rights under this Section is void as contrary to public policy. The benefits under this Act may not be diminished by a collective bargaining agreement or another employment benefits program or plan entered into or renewed after the effective date of this Act.

(f) Nothing in this Act shall be deemed to affect the validity or change the terms of bona fide collective bargaining agreements in force on the effective date of this Act. After that date, requirements of this Act may be waived in a bona fide collective bargaining agreement, but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms.

Section 25. Elective coverage; self-employed.

(a) For benefits payable beginning January 1, 2021, any self-employed person, including a sole proprietor, independent contractor, partner, or joint venturer, who has self-employment income for work performed in Illinois in accordance with the definition of covered employee under item (7) of Section 10 may elect coverage for an initial period of not less than 3 years and subsequent periods of not less than one year immediately following a period of coverage. Those electing coverage under this Act are responsible for payment of 100% of all premiums assessed to any employee and employer under this Act. The self-employed person must file a notice of election in writing with the Department, in a manner as required by the Department in rule. The self-employed person is eligible for family and medical leave benefits after working at least 12 weeks in the state following the date of filing the notice.

(b) A self-employed person who has elected coverage may withdraw from coverage within 30 days after the end of each period of coverage, or at such other times as the Department may adopt by rule, by filing a notice of withdrawal in writing with the Department, such withdrawal to take effect not sooner than 30 days after the filing the notice with the Department.

(c) The Department may cancel elective coverage if the self-employed person fails to make required payments or file reports. The Department may collect due and unpaid premiums and may levy additional premiums for the remainder of the period of coverage. The cancellation shall be effective no later than 30 days from the date of the notice in writing advising the self-employed person of the cancellation.

(d) Those electing coverage are considered employees or employers where the context dictates so.

(e) In this Section, "independent contractor" means an individual excluded from employment under the definition of "employee" under Section 10 of this Act.

Section 30. Disqualification from benefits.

(a) An employee is disqualified from family and medical leave benefits under this Act if the employee:

(1) willfully makes a false statement or misrepresentation regarding a material fact, or willfully fails to disclose a material fact, to obtain benefits;

(2) seeks benefits based on a serious health condition that resulted from the employee's commission of a felony.

(b) A disqualification for family and medical leave benefits is for a period of 2 years, and commences on the first day of the calendar week in which the employee filed a claim for benefits under this Act. An employee who is disqualified for benefits is liable to the Department for a penalty in an amount equal to 15% of the amount of benefits received by the employee.

Section 35. Family and Medical Leave Insurance Fund.

(a) The Family and Medical Leave Insurance Fund is created as a special fund in the State treasury. Moneys in the Fund may be used for the payment of family and medical leave benefits and for the administration of this Act. All interest and other earnings that accrue from investment of moneys in the Fund shall be credited to the Fund.

(b) An employer shall retain from all employees a payroll premium deduction in the amount of 0.15% of wages as defined in Section 235 of the Unemployment Insurance Act. An employer shall pay an amount equal to the payroll premium deduction, known as the employer's premium contribution. The Department shall by rule provide for the collection of this payroll premium deduction and the employer's premium contribution.

The amount of the payroll premium deduction and the employer's premium contribution imposed under this Section, less refunds authorized by this Act, and all assessments and penalties collected under this Act shall be deposited into and credited to the Fund.

(c) A separate account, to be known as the Family and Medical Leave Insurance Administration Account, shall be maintained in the Fund. An amount determined by the Department sufficient for proper administration, not to exceed, however, 0.05% of additional payroll premium deductions and of employer premium contributions as defined in this Section, shall be collected and credited to the Administration Account. The expenses of the Department in administering the Fund and its accounts shall be charged against the Administration Account. The costs of administration of this Act shall be charged to the Administration Account.

(d) A separate account, to be known as the Family and Medical Leave Benefits Account, shall be maintained in the Fund. The account shall be charged with all benefit payments. Prior to July 1 of each calendar year, the Department shall determine the average rate of interest and other earnings on all investments of the Fund for the preceding calendar year. If there is an accumulated deficit in the Family and Medical Leave Benefits Account in excess of $200,000 at the end of any calendar year after interest and other earnings have been credited as provided in this Section, the Department shall determine the ratio of the deficit to the total of all taxable wages paid during the preceding calendar year and shall make an assessment against all employers in an amount equal to the taxable wages paid by them during the preceding calendar year to employees, multiplied by the ratio, but in no event shall any such assessment exceed 0.1% of such wages. The amounts shall be collectible by the Department in the same manner as provided for the collection of employer contributions under the Unemployment Insurance Act. In making this assessment, the Department shall furnish to each affected employer a brief summary of the determination of the assessment. The amount of such assessments collected by the Department shall be credited to the Family and Medical Leave Benefits Account. As used in this Section, "wages" means wages as provided in Section 235 of the Unemployment Insurance Act.

(e) A board of trustees, consisting of the State Treasurer, the Secretary of State, the Director of Labor, the Director of Employment Security, and the State Comptroller, is hereby created. The board shall invest and reinvest all moneys in the Fund in excess of its cash requirements in obligations legal for savings banks.

(f) The Department may adjust rates, not to exceed the amount established in subsection (b) of this Section, for the collection of premiums pursuant to subsection (b) of this Section. The Department shall set rates for premiums in a manner that minimizes the volatility of the rates assessed and so that at the end of the period for which the rates are effective, the cash balance shall be an amount approximating 12 months of projected expenditures from the Fund, considering the functions and duties of the Department under this Act.

(g) An employer required to make employee premium deductions and pay employer premium contributions under this Section shall make and file a report of employee hours worked and amounts due under this Section upon a combined report form prescribed by the Department. The report shall be filed with the Department at the times and in the manner prescribed by the Department.

(h) If the employer is a temporary employment agency that provides employees on a temporary basis to its customers, the temporary employment agency is considered the employer for purposes of this Act.

(i) When an employer goes out of business or sells out, exchanges, or otherwise disposes of the business or stock of goods, any premiums payable under this Section are immediately due and payable, and the employer shall, within 10 days thereafter, pay the premiums due. A person who becomes a successor to the business is liable for the full amount of the premiums and shall withhold from the purchase price a sum sufficient to pay any premiums due from the employer until the employer produces a receipt from the Department showing payment in full of any premiums due or a certificate that no premium is due. If the premiums are not paid by the employer within 10 days after the date of the sale, exchange, or disposal, the successor is liable for the payment of the full amount of the premiums. The successor's payment of the premiums are, to the extent of the payment, a payment upon the purchase price, and if the payment is greater in amount than the purchase price, the amount of the difference is a debt due the successor from the employer.

A successor is not liable for any premiums due from the person from whom the successor has acquired a business or stock of goods if the successor gives written notice to the Department of the acquisition and no assessment is issued by the Department within one year after receipt of the notice against the former operator of the business.

(j) This Section is inoperative before January 1 of the year after this Act becomes law. At that time, the Department shall collect the amounts due under this Section.

Section 40. Compensation for family and medical leave.

(a) An individual's weekly benefit rate shall be determined as follows: if the employee's average weekly wage is (a) 50% or less of the statewide average weekly wage, the employee's weekly benefit is 90% of the employee's average weekly wage or (b) greater than 50% of the statewide average weekly wage, the employee's weekly benefit is the sum of (i) 90% of the employee's average weekly wage up to 50% of the statewide average weekly wage; and (ii) 50% of the employee's average weekly wage that is greater than 50% of the statewide average weekly wage. The individual's benefit rate shall be computed to the next lower multiple of $1 if not already a multiple thereof. The amount of benefits for each day of family and medical leave for which benefits are payable shall be one-seventh of the corresponding weekly benefit amount; provided that the total benefits for a fractional part of a week shall be computed to the next lower multiple of $1 if not already a multiple thereof.

(b) The maximum weekly benefit for family and medical leave shall be $1,000, adjusted annually after the first year to 90% of the statewide average weekly wage.

(c) With respect to any period of family and medical leave taken by a covered employee, family and medical leave benefits not in excess of the employee's maximum benefits shall be payable with respect to the first day of family and medical leave taken after a waiting period consisting of the first 7 calendar days of family and medical leave following the commencement of the period of family and medical leave and each subsequent day of family and medical leave during that period of family and medical leave; and if benefits become payable on any day after the first 3 weeks in which leave is taken, then benefits shall also be payable with respect to any leave taken during the first one-week period in which leave is taken. The waiting period need only be served once every application year. The maximum total benefits payable to any covered employee commencing on or after the effective date of this Act shall be 12 times the employee's weekly benefit amount, provided that the maximum amount shall be computed in the next lower multiple of $1 if not already a multiple thereof.

(d) The first payment of benefits must be made to an employee within 14 calendar days after the claim is filed and subsequent payments must be made no later than semi-monthly thereafter. If the employer contests an initial application for family and medical leave benefits, the employer must notify the employee and the Department in a manner prescribed by the Director within 10 calendar days of receipt of notice from the Department of the employee's filing of an application for benefits.

Nothing in this Act shall be construed to prohibit the establishment by an employer, without approval by the Department, of a supplementary plan or plans providing for the payment to employees, or to any class or classes of employees, of benefits in addition to the benefits provided by this Act. The rights, duties, and responsibilities of all interested parties under the supplementary plans shall be unaffected by any provision of this Act.

Section 45. Family and medical leave; duration. A covered employee may take up to 12 weeks of family and medical leave within any 12-month period in order to provide care made necessary by reasons identified in item (14) of Section 10. A covered employee may take family and medical leave on an intermittent schedule in which all of the leave authorized under this Act is not taken sequentially.

Section 50. Annual reports; contents.

(a) The Department shall issue and make available to the public, not later than July 1, 2023 and July 1 of each subsequent year, annual reports providing data on family and medical leave benefits claims including separate data for each of the following categories of claims: the employee's own serious illness; care of newborn children; care of newly adopted children; care of seriously ill family members, because of family members on active duty in the armed forces of the U.S.; and for domestic or sexual violence. The reports shall include, for each category of claims, the number of workers receiving the benefits, the amount of benefits paid, the average duration of benefits, the average weekly benefit, and any reported amount of sick leave, vacation, or other fully paid time which resulted in reduced benefit duration. The report shall provide data by gender and by any other demographic factors determined to be relevant by the Department. The reports shall also provide, for all family and medical leave benefits, the total costs of benefits and the total cost of administration, the portion of benefits for claims during family and medical leave, and the total revenues from employer assessments, where applicable; employee assessments; and other sources.

(b) The Department may, in its discretion, conduct surveys and other research regarding, and include in the annual reports descriptions and evaluations of the impact and potential future impact of the costs and benefits resulting from the provisions of this Act for:

(1) employees and their families, including surveys and evaluations of what portion of the total number of employees taking family and medical leave would not have taken leave, or would have taken less leave, without the availability of benefits; what portion of employees return to work after receiving benefits and what portion are not permitted to return to work; and what portion of employees who are eligible for benefits do not claim or receive them and why they do not;

(2) employers, including benefits such as reduced training and other costs related to reduced turnover of personnel, and increased affordability of family and medical leave through the State, with special attention given to small businesses; and

(3) the public, including savings caused by any reduction in the number of people receiving public assistance.

(c) The total amount of any expenses that the Department determines are necessary to carry out its duties pursuant to this Section shall be charged to the Administration Account of the Fund.

Section 55. Prohibited acts; enforcement.

(a) No employer, temporary employment agency, employment agency, employee organization, or other person shall discharge, expel, or otherwise retaliate or discriminate against a person because the person has requested family and medical leave, attempted to claim family and medical leave benefits, taken family and medical leave, filed or communicated to the employer an intent to file a claim, a complaint, or an appeal, or has testified or is about to testify or has assisted in any proceeding, under this Act, at any time.

(b) Any employer who violates subsection (a) shall be liable to the individual employed by such a person who is affected by the violation for damages equal to the sum of:

(1) the amount of:

(A) any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or

(B) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct violation, such as the cost of providing care, up to a sum equal to 60 calendar days of wages or salary for the individual; and

(2) the interest on the amount described under item (A) calculated at the prevailing rate; and

(3) an additional amount as liquidated damages equal to the sum of the amount described in item (1) and the interest described in item (2), except if a person who has violated subsection (a) proves to the satisfaction of the court that the act or omission was in good faith and that the person had reasonable grounds for believing that the act or omission was not a violation of subsection (a), the court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under item (A) and (B), respectively.

In addition, a court may order such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

(c) An action to recover the damages or obtain equitable relief subsection (a) may be maintained against any person in any court on behalf of:

(1) the individual; or

(2) the individual or other individuals similarly situated.

(d) The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.

(e) The right under subsection (c) to bring an action by or on behalf of any individual shall terminate:

(1) on the filing of a complaint by the Department in an action in which restraint is sought of any further delay in the payment of the amount described in item (1) of subsection (b) to such individual by the person responsible under subsection (a) for the payment; or

(2) on the filing of a complaint by the Department in an action under subsection (f) in which a recovery is sought of the damages described in item (1) of subsection (b) owing to an individual by a person liable under subsection (a).

(f) Action by the Department.

(1) The Department may bring an action in any court to recover the damages described in item (1) of subsection (b).

(2) Any sums recovered pursuant to item (1) of this subsection shall be held in a special deposit account and shall be paid, on order of the Department, directly to each individual affected. Any such sums not paid to an individual because of inability to do so within a period of 3 years shall be deposited into the Fund.

(3) An action may be brought under this subsection not later than 3 years after the date of the last event constituting the alleged violation for which the action is brought.

(4) An action brought by the Department under this subsection shall be considered to be commenced on the date when the complaint is filed.

(5) The Department may bring an action to restrain violations of subsection (a), including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to the individual, or to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion.

(g) A person aggrieved by a decision of the Department under this Act may request a hearing. The Department shall adopt rules governing hearings and the issuance of final orders under this Act in accordance with the provisions of the Illinois Administrative Procedure Act. All final administrative decisions of the Department under this Act are subject to judicial review under the Administrative Review Law.

Section 60. Penalties.

(a) Persons who make a false statement or representation, knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any family and medical leave benefit during a period of family and medical leave, either for themselves or for any other person, shall be liable for a civil penalty of $250 to be paid to the Fund. Each such false statement or representation or failure to disclose a material fact shall constitute a separate offense. Upon refusal to pay such civil penalty, the civil penalty shall be recovered in a civil action by the Attorney General on behalf the Department in the name of the State of Illinois. If, in any case in which liability for the payment of a civil penalty has been determined, any person who has received any benefits under this Act by reason of the making of such false statements or representations or failure to disclose a material fact shall not be entitled to any benefits under this Act for any leave occurring prior to the time he or she has discharged his or her liability to pay the civil penalty.

(b) A person who willfully violates any provision of this Act or any rule adopted under this Act for which a civil penalty is neither prescribed in this Act nor provided by any other applicable law shall be subject to a civil penalty of $500 to be paid to the Fund. Upon the refusal to pay such civil penalty, the civil penalty shall be recovered in a civil action by the Attorney General on behalf of the Department in the name of the State of Illinois.

(c) A person, employing unit, employer, or entity violating any provision of this Section with intent to defraud the Department is guilty of a Class C misdemeanor. The fine upon conviction shall be payable to the Fund. Any penalties imposed by this subsection shall be in addition to those otherwise prescribed in this Section.

Section 65. Leave and employment protection.

(a) During a period in which an employee receives family leave benefits under this Act, the employee is entitled to family leave and, at the established ending date of leave, to be restored to a position of employment with the employer from whom leave was taken as provided under subsection (b).

(b) Except as provided in subsection (f), an employee who receives family and medical leave benefits under this Act for the intended purpose of the family and medical leave is entitled, on return from the leave:

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

(2) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment at a workplace within 5 miles of the employee's workplace when the family and medical leave commenced.

(c) The taking of family and medical leave under this Act may not result in the loss of any employment benefits accrued before the date on which the family and medical leave commenced.

(d) Nothing in this Section entitles a restored employee to:

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

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

(e) Nothing in this Section prohibits an employer from requiring an employee on family and medical leave to report periodically to the employer on the status and intention of the employee to return to work.

(f) An employer may deny restoration under subsection (b) to a salaried employee who is among the highest paid 10% of the employees employed by the employer within 75 miles of the facility at which the employee is employed if:

(1) denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;

(2) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that the injury would occur; and

(3) the family and medical leave has commenced and the employee elects not to return to employment after receiving the notice.

Section 70. Notice to employer.

(a) If the necessity for family and medical leave for the birth or placement of a child or for any other reason under item (14) of Section 10 is foreseeable, the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave for the birth or placement of a child or for any other reason under item (14) of Section 10, except that if the expected date requires leave to begin in less than 30 days, the employee shall provide such notice as is practical.

Section 75. Employment by same employer. If spouses or parties to a civil union who are entitled to leave under this Act are employed by the same employer, the employer may not require that spouses or parties to a civil union not take such leave concurrently.

Section 80. Coordination of leave.

(a) Family and medical leave taken under this Act must be taken concurrently with any leave taken under the federal Family and Medical Leave Act of 1993.

(b) An employer may require that family and medical leave taken under this Act be taken concurrently with leave allowed under the terms of a collective bargaining agreement or employer policy. The employer must give employees written notice of this requirement.

Section 85. Rules. The Department may adopt any rules necessary to implement the provisions of this Act. In adopting rules, the Department shall maintain consistency with the regulations adopted to implement the Federal Family and Medical Leave Act of 1993 as of the effective date of this Act to the extent such regulations are not in conflict with this Act.

Section 90. Authority to contract. The Department may contract or enter into interagency agreements with other State agencies for the initial administration of the Family and Medical Leave Insurance Act

Section 175. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 900. The State Finance Act is amended by adding Section 5.891 as follows:

(30 ILCS 105/5.891 new)

Sec. 5.891. The Family and Medical Leave Insurance Fund.

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