093_HB0247

 
                                     LRB093 06289 WGH 06405 b

 1        AN ACT concerning employment.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented 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
 7    Illinois Family and Medical Leave Act.

 8        Section 100.1. Findings and purposes.
 9        (a) Findings.  The General Assembly finds that:
10             (1)  the  number  of  single-parent  households  and
11        two-parent  households in which the single parent or both
12        parents work is increasing significantly;
13             (2) it is important for the development of  children
14        and  the  family unit that fathers and mothers be able to
15        participate in early child rearing and the care of family
16        members who have serious health conditions;
17             (3) the lack of employment policies  to  accommodate
18        working  parents  can force individuals to choose between
19        job security  and parenting;
20             (4) there is inadequate job security  for  employees
21        who have serious health conditions that prevent them from
22        working for temporary periods;
23             (5)  due to the nature of the roles of men and women
24        in our society, the  primary  responsibility  for  family
25        caretaking  often falls on women, and such responsibility
26        affects the working lives of women more than  it  affects
27        the working lives of men; and
28             (6)  employment  standards  that apply to one gender
29        only have serious potential for encouraging employers  to
30        discriminate   against   employees   and  applicants  for
 
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 1        employment who are of that gender.
 2        (b) Purposes. It is the purpose of this Act:
 3             (1) to balance the demands of the workplace with the
 4        needs of families, to promote the stability and  economic
 5        security  of  families, and to promote national interests
 6        in preserving  family integrity;
 7             (2) to entitle employees to  take  reasonable  leave
 8        for  medical  reasons,  for  the  birth  or adoption of a
 9        child, and for the  care  of  a  child,  spouse,  parent,
10        son-in-law,     daughter-in-law,     father-in-law,    or
11        mother-in-law who has a serious health condition;
12             (3)  to  accomplish  the   purposes   described   in
13        paragraphs (1)  and (2) in a manner that accommodates the
14        legitimate interests of employers;
15             (4)   to   accomplish   the  purposes  described  in
16        paragraphs (1)  and (2) in a manner that, consistent with
17        the Equal Protection Clause of the Fourteenth  Amendment,
18        minimizes  the potential for employment discrimination on
19        the basis of sex by  ensuring  generally  that  leave  is
20        available   for   eligible   medical  reasons  (including
21        maternity-related disability) and for  compelling  family
22        reasons, on a gender-neutral basis; and
23             (5)   to   promote  the  goal  of  equal  employment
24        opportunity for women and men, pursuant to such clause.

25        Section 101. Definitions.    As used in this Article:
26        (1) (Blank).
27        (2) Eligible Employee.
28             (A) In General. The term "eligible  employee"  means
29        an employee who has been employed:
30                  (i) for at least 12 months by the employer with
31             respect  to  whom  leave  is requested under Section
32             102; and
33                  (ii) for at least 1,250 hours of  service  with
 
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 1             such employer during the previous 12-month period.
 2             (B)  Exclusions.  The  term "eligible employee" does
 3        not include:
 4                  (i) any Federal  officer  or  employee  covered
 5             under  Subchapter V of Chapter 63 of Title 5, United
 6             States Code; or
 7                  (ii)  any  employee  of  an  employer  who   is
 8             employed  at  a  work  site  at  which such employer
 9             employs less than 50 employees if the  total  number
10             of  employees  employed  by  that employer within 75
11             miles of that work site is less than 50.
12             (C)  Determination.  For  purposes  of   determining
13        whether   an   employee   meets   the  hours  of  service
14        requirement specified  in subparagraph (A)(ii), the legal
15        standards established under Section 7 of the  Fair  Labor
16        Standards Act of 1938 (29 U.S.C. 207) shall apply.
17        (3)   Employ;   Employee;   State.  The  terms  "employ",
18    "employee", and "State" have the  same  meanings  given  such
19    terms  in  subsections  (c), (e), and (g) of Section 3 of the
20    Fair Labor Standards Act of 1938 (29 U.S.C. 203 (c), (e), and
21    (g)).
22        (4) Employer.
23             (A) In general. The term "employer":
24                  (i) means any person who  employs  50  or  more
25             employees for each working day during each of  20 or
26             more  calendar workweeks in the current or preceding
27             calendar year;
28                  (ii) includes:
29                       (I)  any  person  who  acts,  directly  or
30                  indirectly, in the interest of an  employer  to
31                  any of the employees of such employer; and
32                       (II)  any  successor  in  interest  of  an
33                  employer; and
34                  (iii)  includes  any State officer, department,
 
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 1             or agency, any unit of  local  government,  and  any
 2             school district.
 3             (B)  (Blank).
 4        (5)  Employment  benefits. The term "employment benefits"
 5    means all benefits provided or made available to employees by
 6    an  employer,  including   group   life   insurance,   health
 7    insurance,  disability  insurance,  sick leave, annual leave,
 8    educational benefits, and  pensions,  regardless  of  whether
 9    such benefits are provided by a practice or written policy of
10    an employer or through an "employee benefit plan", as defined
11    in  Section  3(3)  of the Employee Retirement Income Security
12    Act of 1974 (29 U.S.C. 1002(3)).
13        (6) Health care provider. The term "health care provider"
14    means:
15             (A) a  doctor  of  medicine  or  osteopathy  who  is
16        authorized   to   practice   medicine   or   surgery  (as
17        appropriate) by the State in which the doctor  practices;
18        or
19             (B)  any  other person determined by the Director to
20        be capable of providing health care services.
21        (7) Parent. The term "parent" means the biological parent
22    of an employee or an individual who stood in loco parentis to
23    an employee when the employee was a son or daughter.
24        (8) Person. The term "person" has the same meaning  given
25    such  term in Section 3(a) of the Fair Labor Standards Act of
26    1938 (29 U.S.C. 203(a)).
27        (9) Reduced  leave  schedule.  The  term  "reduced  leave
28    schedule"  means  a  leave  schedule  that  reduces the usual
29    number of hours per workweek, or hours  per  workday,  of  an
30    employee.
31        (10)  Director. The term "Director" means the Director of
32    Labor.
33        (11) Serious health condition. The term  "serious  health
34    condition"  means an illness, injury, impairment, or physical
 
                            -5-      LRB093 06289 WGH 06405 b
 1    or mental condition that involves:
 2             (A)  inpatient  care  in  a  hospital,  hospice,  or
 3        residential medical care facility; or
 4             (B) continuing treatment by a health care provider.
 5        (12) Son or daughter. The term "son or daughter" means  a
 6    biological,  adopted,  or  foster child, a stepchild, a legal
 7    ward, or a child of a person standing in loco  parentis,  who
 8    is:
 9             (A) under 18 years of age; or
10             (B)  18  years  of  age  or  older  and incapable of
11        self-care because of a mental or physical disability.
12        (13) Spouse. The term "spouse" means a husband  or  wife,
13    as  the case may be.

14        Section 102. Leave requirement.
15        (a) In general.
16             (1) Entitlement to leave. Subject to Section 103, an
17        eligible  employee  shall  be  entitled  to a total of 12
18        workweeks of leave during any 12-month period for one  or
19        more of the following:
20                  (A)  Because  of the birth of a son or daughter
21             of the employee and in order to care for such son or
22             daughter.
23                  (B) Because  of  the  placement  of  a  son  or
24             daughter  with   the employee for adoption or foster
25             care.
26                  (C) In order to care for the spouse, or a  son,
27             daughter,   parent,   son-in-law,   daughter-in-law,
28             father-in-law,  or mother-in-law of the employee, if
29             such  spouse,  son,  daughter,  parent,  son-in-law,
30             daughter-in-law, father-in-law, or mother-in-law has
31             a serious health condition.
32                  (D) Because of a serious health condition  that
33             makes  the  employee unable to perform the functions
 
                            -6-      LRB093 06289 WGH 06405 b
 1             of the position of such employee.
 2             (2) Expiration of entitlement.  The  entitlement  to
 3        leave  under  subparagraphs  (A) and (B) of paragraph (1)
 4        for a birth or placement  of  a  son  or  daughter  shall
 5        expire at the end of the 12-month period beginning on the
 6        date of such birth or placement.
 7        (b)  Leave  taken  intermittently  or  on a reduced leave
 8    schedule.
 9             (1) In general. Leave under subparagraph (A) or  (B)
10        of  subsection  (a)(1)  shall not be taken by an employee
11        intermittently or on a reduced leave schedule unless  the
12        employee   and   the   employer  of  the  employee  agree
13        otherwise. Subject to paragraph (2),  subsection  (e)(2),
14        and  Section  103(b)(5),  leave under subparagraph (C) or
15        (D) of subsection (a)(1) may be taken  intermittently  or
16        on a reduced leave schedule when medically necessary. The
17        taking  of  leave  intermittently  or  on a reduced leave
18        schedule pursuant to this paragraph shall not result in a
19        reduction in the total amount   of  leave  to  which  the
20        employee  is  entitled  under  subsection  (a) beyond the
21        amount of leave actually taken.
22             (2) Alternative position. If  an  employee  requests
23        intermittent leave, or leave on a reduced leave schedule,
24        under  subparagraph (C) or (D) of subsection (a)(1), that
25        is foreseeable based on planned  medical  treatment,  the
26        employer      may   require  such  employee  to  transfer
27        temporarily to an available alternative position  offered
28        by  the employer for  which the employee is qualified and
29        that:
30                  (A) has equivalent pay and benefits; and
31                  (B) better accommodates  recurring  periods  of
32             leave  than  the  regular employment position of the
33             employee.
34        (c)  Unpaid  leave  permitted.  Except  as  provided   in
 
                            -7-      LRB093 06289 WGH 06405 b
 1    subsection  (d),  leave  granted  under  subsection  (a)  may
 2    consist  of  unpaid  leave.  Where  an  employee is otherwise
 3    exempt under regulations issued by the Secretary of the  U.S.
 4    Department  of Labor pursuant to Section 13(a)(1) of the Fair
 5    Labor Standards  Act  of  1938  (29  U.S.C.  213(a)(1)),  the
 6    compliance  of  an  employer  with  this Article by providing
 7    unpaid leave shall  not  affect  the  exempt  status  of  the
 8    employee under such Section.
 9        (d) Relationship to paid leave.
10             (1) Unpaid leave. If an employer provides paid leave
11        for    fewer  than  12 workweeks, the additional weeks of
12        leave  necessary to attain  the  12  workweeks  of  leave
13        required  under  this  Article  may  be  provided without
14        compensation.
15             (2) Substitution of paid leave.
16                  (A) In general. An eligible employee may elect,
17             or  an  employer  may  require  the   employee,   to
18             substitute  any  of the accrued paid vacation leave,
19             personal leave, or family  leave of the employee for
20             leave provided under subparagraph (A), (B),  or  (C)
21             of  subsection  (a)(1)  for  any part of the 12-week
22             period of such leave under such subsection.
23                  (B)  Serious  health  condition.  An   eligible
24             employee  may  elect, or an employer may require the
25             employee, to substitute  any  of  the  accrued  paid
26             vacation  leave,  personal leave, or medical or sick
27             leave of  the  employee  for  leave  provided  under
28             subparagraph (C) or (D) of subsection (a)(1) for any
29             part  of the 12-week period of such leave under such
30             subsection, except  that  nothing  in  this  Article
31             shall require an employer to provide paid sick leave
32             or  paid  medical    leave in any situation in which
33             such employer would not normally  provide  any  such
34             paid leave.
 
                            -8-      LRB093 06289 WGH 06405 b
 1        (e) Foreseeable leave.
 2             (1)  Requirement of notice. In any case in which the
 3        necessity for leave under  subparagraph  (A)  or  (B)  of
 4        subsection  (a)(1)  is  foreseeable  based on an expected
 5        birth  or  placement,  the  employee  shall  provide  the
 6        employer with not less than 30 days' notice,  before  the
 7        date  the leave is to begin, of the  employee's intention
 8        to take leave under such subparagraph, except that if the
 9        date of the birth or placement requires  leave  to  begin
10        in  less  than  30  days, the employee shall provide such
11        notice as is practicable.
12             (2) Duties of employee. In any  case  in  which  the
13        necessity    for  leave  under subparagraph (C) or (D) of
14        subsection (a)(1) is foreseeable based on planned medical
15        treatment, the employee:
16                  (A) shall make a reasonable effort to  schedule
17             the  treatment  so  as  not  to  disrupt  unduly the
18             operations of the employer, subject to the  approval
19             of  the  health care provider of the employee or the
20             health care provider of the son,  daughter,  spouse,
21             parent,  son-in-law, daughter-in-law, father-in-law,
22             or mother-in-law of the  employee,  as  appropriate;
23             and
24                  (B)  shall  provide  the employer with not less
25             than 30  days' notice, before the date the leave  is
26             to  begin, of the employee's intention to take leave
27             under such subparagraph, except that if the date  of
28             the  treatment  requires leave to begin in less than
29             30 days, the employee shall provide such  notice  as
30             is practicable.
31        (f) Spouses employed by the same employer. In any case in
32    which  a  husband and wife entitled to leave under subsection
33    (a) are  employed by the same employer, the aggregate  number
34    of  workweeks  of  leave to which both may be entitled may be
 
                            -9-      LRB093 06289 WGH 06405 b
 1    limited to 12 workweeks during any 12-month period,  if  such
 2    leave is taken:
 3             (1)  under  subparagraph  (A)  or  (B) of subsection
 4        (a)(1); or
 5             (2) to care for a sick parent under subparagraph (C)
 6        of such subsection.

 7        Section 103. Certification.
 8        (a) In general. An employer may require  that  a  request
 9    for  leave under subparagraph (C) or (D) of Section 102(a)(1)
10    be supported by  a certification issued by  the  health  care
11    provider  of  the  eligible employee or of the son, daughter,
12    spouse, parent, son-in-law,  daughter-in-law,  father-in-law,
13    or   mother-in-law  of  the  employee,  as  appropriate.  The
14    employee shall provide, in a timely manner, a  copy  of  such
15    certification to the employer.
16        (b)   Sufficient  certification.  Certification  provided
17    under subsection (a) shall be sufficient if it states:
18             (1) the date on which the serious  health  condition
19        commenced;
20             (2) the probable duration of the condition;
21             (3)   the   appropriate  medical  facts  within  the
22        knowledge of  the  health  care  provider  regarding  the
23        condition;
24             (4)(A)   for   purposes   of   leave  under  Section
25        102(a)(1)(C), a statement that the eligible  employee  is
26        needed  to  care  for  the son, daughter, spouse, parent,
27        son-in-law,    daughter-in-law,     father-in-law,     or
28        mother-in-law  and an estimate of the amount of time that
29        such employee is needed to care for  the  son,  daughter,
30        spouse,      parent,     son-in-law,     daughter-in-law,
31        father-in-law, or mother-in-law; and
32             (B)   for   purposes   of   leave   under    Section
33        102(a)(1)(D),  a statement that the employee is unable to
 
                            -10-     LRB093 06289 WGH 06405 b
 1        perform the functions of the position of the employee;
 2             (5) in the case of  certification  for  intermittent
 3        leave,  or leave on a reduced leave schedule, for planned
 4        medical treatment, the dates on which such  treatment  is
 5        expected to be given and the duration of such treatment;
 6             (6)  in  the  case of certification for intermittent
 7        leave, or  leave  on  a  reduced  leave  schedule,  under
 8        Section   102(a)(1)(D),    a  statement  of  the  medical
 9        necessity for  the  intermittent  leave  or  leave  on  a
10        reduced  leave schedule, and the expected duration of the
11        intermittent leave or reduced leave schedule; and
12             (7) in the case of  certification  for  intermittent
13        leave,  or  leave  on  a  reduced  leave  schedule, under
14        Section 102(a)(1)(C),  a statement  that  the  employee's
15        intermittent  leave or leave on  a reduced leave schedule
16        is necessary for the care of the son,  daughter,  parent,
17        spouse,  son-in-law,  daughter-in-law,  father-in-law, or
18        mother-in-law who has a serious health condition, or will
19        assist in their recovery, and the expected  duration  and
20        schedule  of  the  intermittent  leave  or  reduced leave
21        schedule.
22        (c) Second opinion.
23             (1) In general. In any case in  which  the  employer
24        has  reason  to  doubt  the validity of the certification
25        provided   under   subsection   (a)   for   leave   under
26        subparagraph  (C)  or  (D)  of  Section  102(a)(1),   the
27        employer  may  require,  at  the expense of the employer,
28        that the eligible employee obtain the opinion of a second
29        health  care  provider  designated  or  approved  by  the
30        employer  concerning  any  information  certified   under
31        subsection (b) for such leave.
32             (2) Limitation. A health care provider designated or
33        approved  under  paragraph (1) shall not be employed on a
34        regular basis by the employer.
 
                            -11-     LRB093 06289 WGH 06405 b
 1        (d) Resolution of conflicting opinions.
 2             (1) In general. In any  case  in  which  the  second
 3        opinion  described  in  subsection  (c)  differs from the
 4        opinion in  the  original  certification  provided  under
 5        subsection  (a), the employer may require, at the expense
 6        of the employer, that the employee obtain the opinion  of
 7        a  third  health  care  provider  designated  or approved
 8        jointly by the employer and the employee  concerning  the
 9        information certified under subsection (b).
10             (2)  Finality.  The opinion of the third health care
11        provider  concerning  the  information  certified   under
12        subsection  (b) shall be considered to be final and shall
13        be binding on the employer and the employee.
14        (e) Subsequent recertification. The employer may  require
15    that the eligible employee obtain subsequent recertifications
16    on a  reasonable basis.

17        Section 104. Employment and benefits protection.
18        (a) Restoration to position.
19             (1)  In  general.  Except  as provided in subsection
20        (b), any eligible employee who takes leave under  Section
21        102  for  the  intended  purpose  of  the  leave shall be
22        entitled, on return from such leave:
23                  (A) to be  restored  by  the  employer  to  the
24             position of employment held by the employee when the
25             leave commenced; or
26                  (B)  to  be  restored to an equivalent position
27             with equivalent employment benefits, pay, and  other
28             terms and conditions of employment.
29             (2)  Loss  of  benefits.  The  taking of leave under
30        Section  102  shall  not  result  in  the  loss  of   any
31        employment benefit accrued prior to the date on which the
32        leave commenced.
33             (3)  Limitations.  Nothing  in this Section shall be
 
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 1        construed  to entitle any restored employee to:
 2                  (A) the accrual of any seniority or  employment
 3             benefits during any period of leave; or
 4                  (B)   any   right,   benefit,  or  position  of
 5             employment  other  than  any  right,   benefit,   or
 6             position  to  which  the  employee  would  have been
 7             entitled had the employee not taken the leave.
 8             (4) Certification. As  a  condition  of  restoration
 9        under  paragraph  (1) for an employee who has taken leave
10        under Section  102(a)(1)(D),  the  employer  may  have  a
11        uniformly  applied  practice or policy that requires each
12        such employee to receive certification  from  the  health
13        care  provider of the employee  that the employee is able
14        to resume work, except that nothing   in  this  paragraph
15        shall   supersede  a  valid  State  or  local  law  or  a
16        collective bargaining agreement that governs  the  return
17        to work of such employees.
18             (5)  Construction.  Nothing in this subsection shall
19        be construed to prohibit an employer  from  requiring  an
20        employee   on   leave   under   Section   102  to  report
21        periodically to the employer on the status and  intention
22        of the employee to return to work.
23        (b)   Exemption  concerning  certain  highly  compensated
24    employees.
25             (1) Denial of  restoration.  An  employer  may  deny
26        restoration under subsection (a) to any eligible employee
27        described in paragraph (2) if:
28                  (A)   such   denial  is  necessary  to  prevent
29             substantial and  grievous  economic  injury  to  the
30             operations of the employer;
31                  (B)  the  employer notifies the employee of the
32             intent of the employer to deny restoration  on  such
33             basis  at the time the employer determines that such
34             injury would occur; and
 
                            -13-     LRB093 06289 WGH 06405 b
 1                  (C)  in  any  case  in  which  the  leave   has
 2             commenced,  the  employee  elects  not  to return to
 3             employment after receiving such notice.
 4             (2)  Affected  employees.   An   eligible   employee
 5        described   in  paragraph  (1)  is  a  salaried  eligible
 6        employee who is among the highest paid 10 percent of  the
 7        employees employed by the employer within 75 miles of the
 8        facility at which the employee is employed.
 9        (c) Maintenance of health benefits.
10             (1)  Coverage.  Except as provided in paragraph (2),
11        during any period that an eligible employee  takes  leave
12        under  Section  102, the employer shall maintain coverage
13        under any "group health  plan"  (as  defined  in  Section
14        5000(b)(1)  of the Internal Revenue Code of 1986) for the
15        duration of  such  leave  at  the  level  and  under  the
16        conditions  coverage  would  have  been  provided  if the
17        employee had continued in employment continuously for the
18        duration of such leave.
19             (2) Failure to return from leave. The  employer  may
20        recover      the  premium  that  the  employer  paid  for
21        maintaining coverage for the employee  under  such  group
22        health  plan  during  any  period  of  unpaid leave under
23        Section 102 if:
24                  (A) the employee fails  to  return  from  leave
25             under Section 102 after the period of leave to which
26             the employee is entitled has expired; and
27                  (B)  the employee fails to return to work for a
28             reason other than:
29                       (i) the continuation, recurrence, or onset
30                  of a serious health condition that entitles the
31                  employee to leave under subparagraph (C) or (D)
32                  of Section 102(a)(1); or
33                       (ii)  other   circumstances   beyond   the
34                  control of the employee.
 
                            -14-     LRB093 06289 WGH 06405 b
 1             (3) Certification.
 2                  (A)  Issuance.  An  employer may require that a
 3             claim that  an employee is unable to return to  work
 4             because of the continuation, recurrence, or onset of
 5             the  serious health condition described in paragraph
 6             (2)(B)(i) be supported by:
 7                       (i) a certification issued by  the  health
 8                  care    provider  of the son, daughter, spouse,
 9                  parent,      son-in-law,       daughter-in-law,
10                  father-in-law,    or   mother-in-law   of   the
11                  employee, as appropriate, in  the  case  of  an
12                  employee  unable to return to work because of a
13                  condition specified in Section 102(a)(1)(C); or
14                       (ii) a certification issued by the  health
15                  care  provider of the eligible employee, in the
16                  case of an employee unable to  return  to  work
17                  because  of  a   condition specified in Section
18                  102(a)(1)(D).
19                  (B) Copy. The  employee  shall  provide,  in  a
20             timely  manner,  a copy of such certification to the
21             employer.
22                  (C) Sufficiency of certification.
23                       (i) Leave due to serious health  condition
24                  of    employee.  The certification described in
25                  subparagraph (A)(ii) shall be sufficient if the
26                  certification  states  that  a  serious  health
27                  condition prevented  the  employee  from  being
28                  able  to perform the functions of the  position
29                  of the employee on the date that the  leave  of
30                  the employee expired.
31                       (ii) Leave due to serious health condition
32                  of  family  member. The certification described
33                  in subparagraph (A)(i) shall be  sufficient  if
34                  the  certification  states that the employee is
 
                            -15-     LRB093 06289 WGH 06405 b
 1                  needed to care for the son,  daughter,  spouse,
 2                  parent,       son-in-law,      daughter-in-law,
 3                  father-in-law,  or  mother-in-law  who  has   a
 4                  serious  health  condition on the date that the
 5                  leave of the employee expired.

 6        Section 105. Prohibited Acts.
 7        (a) Interference with rights.
 8             (1) Exercise of rights. It shall be unlawful for any
 9        employer  to  interfere  with,  restrain,  or  deny   the
10        exercise  of  or  the  attempt  to  exercise,  any  right
11        provided under this Article.
12             (2)  Discrimination.  It  shall  be unlawful for any
13        employer to discharge or in any other manner discriminate
14        against any individual for  opposing  any  practice  made
15        unlawful by this Article.
16        (b)  Interference with proceedings or inquiries. It shall
17    be unlawful for any person  to  discharge  or  in  any  other
18    manner  discriminate  against  any  individual  because  such
19    individual:
20             (1)  has  filed  any  charge,  or  has instituted or
21        caused to be instituted any proceeding, under or  related
22        to this Article;
23             (2)  has given, or is about to give, any information
24        in connection with any inquiry or proceeding relating  to
25        any right provided under this Article; or
26             (3)  has  testified,  or is about to testify, in any
27        inquiry or proceeding  relating  to  any  right  provided
28        under this Article.

29        Section 106. Investigative authority.
30        (a)  In general. To ensure compliance with the provisions
31    of this Article, or any  rule  or  order  issued  under  this
32    Article,  the Director shall have, subject to subsection (c),
 
                            -16-     LRB093 06289 WGH 06405 b
 1    the authority to investigate complaints.
 2        (b) Obligation to keep and preserve records. Any employer
 3    shall  make,  keep,  and  preserve  records   pertaining   to
 4    compliance with this Article in accordance with rules adopted
 5    by the Director.
 6        (c)  Required  submissions generally limited to an annual
 7    basis.  The Director shall not under the  authority  of  this
 8    Section require any employer or any plan, fund, or program to
 9    submit  to  the  Director any books or records more than once
10    during  any  12-month  period,  unless   the   Director   has
11    reasonable  cause  to  believe there may exist a violation of
12    this Article or any rule or order  issued  pursuant  to  this
13    Article,  or  is  investigating a charge  pursuant to Section
14    107(b).
15        (d)  Subpoena   powers.   For   the   purposes   of   any
16    investigation  provided  for  in  this  Section, the Director
17    shall have the authority to issue subpoenas.

18        Section 107. Enforcement.
19        (a) Civil action by employees.
20             (1) Liability. Any employer who violates Section 105
21        shall be liable to any eligible employee affected:
22                  (A) for damages equal to:
23                       (i) the amount of:
24                            (I)  any  wages,  salary,  employment
25                       benefits, or other compensation denied  or
26                       lost  to  such  employee  by reason of the
27                       violation; or
28                            (II)  in  a  case  in  which   wages,
29                       salary,   employment  benefits,  or  other
30                       compensation have not been denied or  lost
31                       to  the  employee,    any  actual monetary
32                       losses sustained  by  the  employee  as  a
33                       direct  result  of  the violation, such as
 
                            -17-     LRB093 06289 WGH 06405 b
 1                       the cost of providing care, up to   a  sum
 2                       equal  to  12 weeks of wages or salary for
 3                       the employee;
 4                       (ii) the interest on the amount  described
 5                  in   clause  (i)  calculated  at  the  rate  of
 6                  interest on  judgments  set  forth  in  Section
 7                  2-1303 of the Code of Civil Procedure; and
 8                       (iii)  an  additional amount as liquidated
 9                  damages    equal  to  the  sum  of  the  amount
10                  described  in  clause  (i)  and  the   interest
11                  described  in  clause  (ii),  except that if an
12                  employer who has violated Section 105 proves to
13                  the satisfaction of the court that the  act  or
14                  omission which violated Section 105 was in good
15                  faith  and  that  the  employer  had reasonable
16                  grounds for believing that the act or  omission
17                  was  not a violation of Section 105, such court
18                  may, in the discretion of the court, reduce the
19                  amount of  the  liability  to  the  amount  and
20                  interest determined under clauses (i) and (ii),
21                  respectively; and
22                  (B)   for  such  equitable  relief  as  may  be
23             appropriate,  including  employment,  reinstatement,
24             and promotion.
25             (2) Right  of  action.  An  action  to  recover  the
26        damages  or  equitable relief prescribed in paragraph (1)
27        may be  maintained  against  any  employer  (including  a
28        public  agency)  in  the circuit court by any one or more
29        employees for and in behalf of:
30                  (A) the employees; or
31                  (B) the employees and other employees similarly
32             situated.
33             (3) Fees and costs. The  court  in  such  an  action
34        shall,  in  addition  to  any  judgment  awarded  to  the
 
                            -18-     LRB093 06289 WGH 06405 b
 1        plaintiff,  allow a reasonable attorney's fee, reasonable
 2        expert witness fees, and other costs of the action to  be
 3        paid by the defendant.
 4             (4) Limitations. The right provided by paragraph (2)
 5        to  bring an action by or on behalf of any employee shall
 6        terminate:
 7                  (A)  on  the  filing  of  a  complaint  by  the
 8             Director in an action under subsection (d) in  which
 9             restraint  is  sought  of  any  further delay in the
10             payment of the amount described in paragraph  (1)(A)
11             to  such  employee by an employer  responsible under
12             paragraph (1) for the payment; or
13                  (B)  on  the  filing  of  a  complaint  by  the
14             Director in an action under subsection (b) in  which
15             a  recovery  is  sought  of the damages described in
16             paragraph (1)(A) owing to an eligible employee by an
17             employer liable  under  paragraph  (1),  unless  the
18             action  described  in  subparagraph  (A)  or  (B) is
19             dismissed  without  prejudice  on  motion   of   the
20             Director.
21        (b) Action by the Director.
22             (1)   Administrative   action.  The  Director  shall
23        receive, investigate, and attempt to  resolve  complaints
24        of violations of Section 105.
25             (2)  Civil  action. The Director may bring an action
26        in the circuit court to recover the damages  described in
27        subsection (a)(1)(A).
28             (3)  Sums  recovered.  Any  sums  recovered  by  the
29        Director pursuant to paragraph (2) shall  be  held  in  a
30        special  deposit  account  and shall be paid, on order of
31        the Director, directly to  each  employee  affected.  Any
32        such  sums  not paid to an  employee because of inability
33        to do so within a period of 3 years  shall  be  deposited
34        into the General Revenue Fund.
 
                            -19-     LRB093 06289 WGH 06405 b
 1        (c) Limitation.
 2             (1) In general. Except as provided in paragraph (2),
 3        an    action  may be brought under this Section not later
 4        than  2  years  after  the  date  of   the   last   event
 5        constituting  the  alleged violation for which the action
 6        is brought.
 7             (2) Willful violation. In the case  of  such  action
 8        brought  for  a  willful  violation  of Section 105, such
 9        action may be brought within 3 years of the date  of  the
10        last  event  constituting the alleged violation for which
11        such action is brought.
12             (3) Commencement. In determining when an  action  is
13        commenced  by  the  Director  under  this Section for the
14        purposes of this subsection, it shall be considered to be
15        commenced on the date when the complaint is filed.
16        (d) Action for injunction by Director. The circuit  court
17    shall  have  jurisdiction,  for  cause  shown,  in  an action
18    brought by the Director:
19             (1) to restrain violations of Section 105, including
20        the restraint of any withholding  of  payment  of  wages,
21        salary,  employment benefits, or other compensation, plus
22        interest,  found by the  court  to  be  due  to  eligible
23        employees; or
24             (2)  to  award such other equitable relief as may be
25        appropriate,  including  employment,  reinstatement,  and
26        promotion.

27        Section 108.  Special rules concerning employees of local
28    educational agencies.
29        (a) Application.
30             (1) In general. Except as otherwise provided in this
31        Section, the rights (including the rights  under  Section
32        104, which shall extend throughout the period of leave of
33        any   employee   under    this  Section),  remedies,  and
 
                            -20-     LRB093 06289 WGH 06405 b
 1        procedures under this Article shall apply to:
 2                  (A) any "local educational agency" (as  defined
 3             in  Section 1471(12) of the Elementary and Secondary
 4             Education Act of 1965 (20 U.S.C.  2891(12))  and  an
 5             eligible employee of the agency; and
 6                  (B)  any private elementary or secondary school
 7             and an eligible employee of the school.
 8             (2)  Definitions. For purposes  of  the  application
 9        described  in paragraph (1):
10                  (A)   Eligible  employee.  The  term  "eligible
11             employee" means an eligible employee of an agency or
12             school described in paragraph (1).
13                  (B) Employer.  The  term  "employer"  means  an
14             agency or school described in paragraph (1).
15        (b)  Leave does not violate certain other federal laws. A
16    local  educational  agency  and  a  private   elementary   or
17    secondary school shall not be in violation of the Individuals
18    with  Disabilities  Education  Act  (20 U.S.C. 1400 et seq.),
19    Section 504 of the Rehabilitation  Act  of  1973  (29  U.S.C.
20    794), or title VI of the  Civil Rights Act of 1964 (42 U.S.C.
21    2000d et seq.), solely as a result of an eligible employee of
22    such  agency or school exercising the rights of such employee
23    under this Article.
24        (c) Intermittent leave or leave on a reduced schedule for
25    instructional employees.
26             (1) In general. Subject to  paragraph  (2),  in  any
27        case  in  which an eligible employee employed principally
28        in an instructional  capacity  by  any  such  educational
29        agency or school requests leave under subparagraph (C) or
30        (D)  of  Section  102(a)(1)  that is foreseeable based on
31        planned medical  treatment and the employee would  be  on
32        leave for greater than  20 percent of the total number of
33        working  days  in the period during which the leave would
34        extend, the  agency  or  school  may  require  that  such
 
                            -21-     LRB093 06289 WGH 06405 b
 1        employee elect either:
 2                  (A)  to  take leave for periods of a particular
 3             duration, not to exceed the duration of the  planned
 4             medical  treatment; or
 5                  (B)  to  transfer  temporarily  to an available
 6             alternative position offered  by  the  employer  for
 7             which the employee is qualified, and that:
 8                       (i) has equivalent pay and benefits; and
 9                       (ii) better accommodates recurring periods
10                  of  leave  than the regular employment position
11                  of the employee.
12             (2)  Application.   The   elections   described   in
13        subparagraphs  (A)  and  (B) of paragraph (1) shall apply
14        only with respect to an eligible  employee  who  complies
15        with Section 102(e)(2).
16        (d) Rules applicable to periods near the conclusion of an
17    academic  term.  The following rules shall apply with respect
18    to periods of leave near the conclusion of an  academic  term
19    in the  case of any eligible employee employed principally in
20    an  instructional  capacity by any such educational agency or
21    school:
22             (1) Leave more than 5 weeks prior to end of term. If
23        the eligible employee begins leave under Section 102 more
24        than 5 weeks prior to the end of the academic  term,  the
25        agency  or  school  may  require the employee to continue
26        taking leave until the end of such term, if:
27                  (A) the leave is of at least 3 weeks  duration;
28             and
29                  (B) the return to employment would occur during
30             the  3-week period before the end of such term.
31             (2) Leave less than 5 weeks prior to end of term. If
32        the  eligible  employee  begins  leave under subparagraph
33        (A), (B), or (C) of Section 102(a)(1) during  the  period
34        that  commences  5 weeks prior to the end of the academic
 
                            -22-     LRB093 06289 WGH 06405 b
 1        term, the agency or school may require  the  employee  to
 2        continue taking leave until the end of such term, if:
 3                  (A)  the  leave  is  of  greater  than  2 weeks
 4             duration; and
 5                  (B) the return to employment would occur during
 6             the  2-week period before the end of such term.
 7             (3) Leave less than 3 weeks prior to end of term. If
 8        the eligible employee  begins  leave  under  subparagraph
 9        (A),  (B),  or (C) of Section 102(a)(1) during the period
10        that commences 3 weeks prior to the end of  the  academic
11        term  and  the  duration  of  the leave is greater than 5
12        working days,  the  agency  or  school  may  require  the
13        employee to continue to take leave until the  end of such
14        term.
15        (e)  Restoration  to  equivalent employment position. For
16    purposes    of  determinations  under  Section   104(a)(1)(B)
17    (relating  to  the  restoration of an eligible employee to an
18    equivalent position), in the  case  of  a  local  educational
19    agency  or  a  private  elementary  or secondary school, such
20    determination shall be  made  on  the  basis  of  established
21    school  board policies and practices, private school policies
22    and practices, and collective bargaining agreements.
23        (f) Reduction of the amount  of  liability.  If  a  local
24    educational  agency  or  a  private  elementary  or secondary
25    school  that  has    violated  this  Article  proves  to  the
26    satisfaction of the  court  that    the  agency,  school,  or
27    department  had  reasonable  grounds  for  believing that the
28    underlying act or omission was  not  a  violation    of  this
29    Article,  such  court  may,  in  the discretion of the court,
30    reduce the amount of the liability provided for under Section
31    107(a)(1)(A) to the  amount  and  interest  determined  under
32    clauses (i) and (ii), respectively, of such Section.

33        Section 109. Notice.
 
                            -23-     LRB093 06289 WGH 06405 b
 1        (a) In general. Each employer shall post and keep posted,
 2    in  conspicuous  places on the premises of the employer where
 3    notices  to  employees  and  applicants  for  employment  are
 4    customarily posted, a notice, to be prepared or  approved  by
 5    the  Director,  setting forth excerpts from, or summaries of,
 6    the pertinent provisions  of  this  Article  and  information
 7    pertaining to the filing of a charge.
 8        (b)  Penalty.  Any  employer that willfully violates this
 9    Section  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) Federal and State antidiscrimination laws. Nothing in
16    this   Act shall be construed to modify or affect any Federal
17    or State law prohibiting discrimination  on    the  basis  of
18    race,   religion,   color,  national  origin,  sex,  age,  or
19    disability.
20        (b) State and local laws. Nothing in this  Act  shall  be
21    construed  to  supersede  any provision of any State or local
22    law that provides greater family or medical leave rights than
23    the rights established under this Act.

24        Section 402. Effect on existing employment benefits.
25        (a)  More  protective.  Nothing  in  this  Act  shall  be
26    construed to diminish the obligation of an employer to comply
27    with any collective bargaining agreement  or  any  employment
28    benefit  program  or  plan  that  provides  greater family or
29    medical leave rights to employees than the rights established
 
                            -24-     LRB093 06289 WGH 06405 b
 1    under this Act.
 2        (b) Less protective. The rights established for employees
 3    under this Act shall not  be  diminished  by  any  collective
 4    bargaining  agreement  or  any  employment benefit program or
 5    plan.

 6        Section  403.  Encouragement  of  more   generous   leave
 7    policies.   Nothing   in  this  Act  shall  be  construed  to
 8    discourage  employers  from  adopting  or   retaining   leave
 9    policies more generous than any policies that comply with the
10    requirements under this Act.

11        Section  404.  Rules.  The  Director shall prescribe such
12    rules as are necessary to carry out this Act not  later  than
13    120 days after the effective date of of this Act.

14        Section 404.1.  Applicability.
15        (1)  In  the case of a collective bargaining agreement in
16    effect on the effective date of this  Act,  Article  I  shall
17    apply on the earlier of:
18             (A)  the  date of the termination of such agreement;
19        or
20             (B)  the  date  that  occurs  12  months  after  the
21        effective date of this Act.
22        (2)  Nothing in this Act shall be construed to limit  the
23    applicability  of the federal Family and Medical Leave Act of
24    1993 with regard to employers and employees covered  by  that
25    Act.

26        Section 405. Effective date. This Act shall take effect 6
27    months after it becomes law.