HB4724 97TH GENERAL ASSEMBLY

LRB097 13739 AEK 61639 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4724

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

SYNOPSIS AS INTRODUCED:

New Act

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

A BILL FOR

AN ACT concerning employment.

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

ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL

REQUIREMENTS FOR LEAVE

Section 100. Short title. This Act may be cited as the Illinois Family and Medical Leave Act.

Section 101. Definitions. As used in this Article:

(1) (Blank).

(2) Eligible Employee.

(A) In General. The term "eligible employee" means an employee who has been employed:

(i) for at least 12 months by the employer with respect to whom leave is requested under Section 102; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

(B) Exclusions. The term "eligible employee" does not include:

(i) any Federal officer or employee covered under Subchapter V of Chapter 63 of Title 5, United States Code; or

(ii) any employee of an employer who is employed at a work site at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that work site is less than 50.

(C) Determination. For purposes of determining whether an employee meets the hours of service requirement specified in subparagraph (A)(ii), the legal standards established under Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) shall apply.

(D) Airline flight crews.

(i) Determination. For purposes of determining whether an employee who is a flight attendant or flight crewmember (as such terms are defined in regulations of the Federal Aviation Administration) meets the hours of service requirement specified in subparagraph (A)(ii), the employee will be considered to meet the requirement if:

(I) the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under Section 102; and

(II) the employee has worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.

(ii) File. Each employer of an employee described in clause (i) shall maintain on file with the Director (in accordance with such regulations as the Director may prescribe) containing information specifying the applicable monthly guarantee with respect to each category of employee to which such guarantee applies.

(iii) Definition. For the purposes of this Section, "applicable monthly guarantee" means:

(I) for an employee described in clause (i) other than an employee on reserve status, the minimum number of hours for which an employer as agreed to schedule such employee for any given month; and

(II) for an employee described in clause (i) who is on reserve status, the number of hours for which an employer has agreed to pay such employee on reserve status for any given month, as established in the applicable collective bargaining agreement or, if none exists, in the employer's policies.

(3) Employ; Employee; State. The terms "employ", "employee", and "State" have the same meanings given such terms in subsections (c), (e), and (g) of Section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203 (c), (e), and (g)).

(4) Employer.

(A) In general. The term "employer":

(i) means any person who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes:

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer; and

(iii) includes any State officer, department, or agency, any unit of local government, and any school district.

(B) (Blank).

(5) Employment benefits. The term "employment benefits" means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an "employee benefit plan", as defined in the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(3)).

(6) Health care provider. The term "health care provider" means:

(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or

(B) any other person determined by the Director to be capable of providing health care services.

(7) Parent. The term "parent" means the biological father or mother, adoptive father or mother, stepfather or stepmother, or foster father or mother of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.

(8) Person. The term "person" has the same meaning given such term in Section 203(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(a)).

(9) Reduced leave schedule. The term "reduced leave schedule" means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.

(10) Director. The term "Director" means the Director of Labor.

(11) Serious health condition. The term "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.

(12) Son or daughter. The term "son or daughter" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:

(A) under 18 years of age; or

(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.

(13) Spouse. The term "spouse" means a husband or wife, as the case may be.

(14) Covered active duty. The term "covered active duty" means:

(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and

(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in Section 101(a)(13)(B) of Title 10 of the United States Code (10 U.S.C. 101(a)(13)(B)).

(15) Covered servicemember. The term "covered servicemember" means:

(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or

(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

(16) Outpatient status. The term "outpatient status", with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to:

(A) a military medical treatment facility as an outpatient; or

(B) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

(17) Next of kin. The term "next of kin", used with respect to an individual, means the nearest blood relative of that individual.

(18) Serious injury or illness. The term "serious injury or illness":

(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating; and

(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

(19) Veteran. The term "veteran" has the meaning given the term in section 101 of Title 38 of the United States Code (38 U.S.C. 101).

Section 102. Leave requirement.

(a) In general.

(1) Entitlement to leave. Subject to Section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Director shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

(2) Expiration of entitlement. The entitlement to leave under subparagraphs (A) and (B) of paragraph (1) for a birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.

(3) Servicemember family leave. Subject to Section 103, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.

(4) Combined leave total. During the single 12-month period described in paragraph (3), an eligible employee shall be entitled to a combined total of 26 workweeks of leave under paragraphs (1) and (3). Nothing in this paragraph shall be construed to limit the availability of leave under paragraph (1) during any other 12-month period.

(5) Calculation of leave for airline flight crews. The Director may provide, by regulation, a method for calculating the leave described in paragraph (1) with respect to employees described in Section 101(2)(D).

(b) Leave taken intermittently or on a reduced leave schedule.

(1) In general. Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise. Subject to paragraph (2), subsection (e)(2), and subsection (b)(5) or (f) (as appropriate) of Section 103, leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) may be taken intermittently or on a reduced leave schedule when medically necessary. Subject to subsection (e)(3) and section 103(f), leave under subsection (a)(1)(E) may be taken intermittently or on a reduced leave schedule. The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.

(2) Alternative position. If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3), that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that:

(A) has equivalent pay and benefits; and

(B) better accommodates recurring periods of leave than the regular employment position of the employee.

(c) Unpaid leave permitted. Except as provided in subsection (d), leave granted under subsection (a) may consist of unpaid leave. Where an employee is otherwise exempt under regulations issued by the United States Secretary of Labor pursuant to Section 213(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an employer with this Article by providing unpaid leave shall not affect the exempt status of the employee under such Section.

(d) Relationship to paid leave.

(1) Unpaid leave. If an employer provides paid leave for fewer than 12 workweeks(or 26 workweeks in the case of leave provided under subsection (a)(3)), the additional weeks of leave necessary to attain the 12 workweeks (or 26 workweeks, as appropriate) of leave required under this subchapter may be provided without compensation.

(2) Substitution of paid leave.

(A) In general. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), or (C) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.

(B) Serious health condition. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under subparagraph (C) or (D) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection, except that nothing in this Article shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the 26-week period of such leave under such subsection, except that nothing in this subchapter requires an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave.

(e) Foreseeable leave.

(1) Requirement of notice. In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) is foreseeable based on an expected birth or placement, 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 under such subparagraph, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

(2) Duties of employee. In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) is foreseeable based on planned medical treatment, the employee:

(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and

(B) 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 under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

(3) Notice for leave due to covered active duty of family member. In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.

(f) Spouses employed by the same employer.

(1) In general. In any case in which a husband and wife entitled to leave under subsection (a) are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period described in subsection (a)(3), if such leave is taken:

(A) under subparagraph (A) or (B) of subsection (a)(1); or

(B) to care for a sick parent under subparagraph (C) of such subsection.

(2) Servicemember family leave.

(A) In general. The aggregate number of workweeks of leave to which both that husband and wife may be entitled under subsection (a) may be limited to 26 workweeks during the single 12-month period described in subsection (a)(3) if the leave is:

(i) leave under subsection (a)(3); or

(ii) a combination of leave under subsection (a)(3) and leave described in paragraph (1).

(B) Both limitations applicable. If the leave taken by the husband and wife includes leave described in paragraph (1), the limitation in paragraph (1) shall apply to the leave described in paragraph (1).

Section 103. Certification.

(a) In general. An employer may require that a request for leave under subparagraph (C) or (D) of paragraph (1) or paragraph (3) of Section 102(a) be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual in the case of leave taken under such paragraph (3), as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer.

(b) Sufficient certification. Certification provided under subsection (a) shall be sufficient if it states:

(1) the date on which the serious health condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;

(4)(A) for purposes of leave under Section 102(a)(1)(C), a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse or parent; and

(B) for purposes of leave under Section 102(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee;

(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;

(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under Section 102(a)(1)(D), a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and

(7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under Section 102(a)(1)(C), a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.

(c) Second opinion.

(1) In general. In any case in which the employer has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) of Section 102(a)(1), the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) for such leave.

(2) Limitation. A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer.

(d) Resolution of conflicting opinions.

(1) In general. In any case in which the second opinion described in subsection (c) differs from the opinion in the original certification provided under subsection (a), the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (b).

(2) Finality. The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employer and the employee.

(e) Subsequent recertification. The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.

(f) Certification related to covered active duty or call to covered active duty. An employer may require that a request for leave under Section 102(a)(1)(E) be supported by a certification issued at such time and in such manner as the Director may by regulation prescribe. If the Director issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.

Section 104. Employment and benefits protection.

(a) Restoration to position.

(1) In general. Except as provided in subsection (b), any eligible employee who takes leave under Section 102 for the intended purpose of the leave shall be entitled, on return from such leave:

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

(2) Loss of benefits. The taking of leave under Section 102 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.

(3) Limitations. Nothing in this Section shall be construed to entitle any restored employee to:

(A) the accrual of any seniority or employment benefits during any period of leave; or

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

(4) Certification. As a condition of restoration under paragraph (1) for an employee who has taken leave under Section 102(a)(1)(D), the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.

(5) Construction. Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave under Section 102 to report periodically to the employer on the status and intention of the employee to return to work.

(b) Exemption concerning certain highly compensated employees.

(1) Denial of restoration. An employer may deny restoration under subsection (a) to any eligible employee described in paragraph (2) if:

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

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

(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.

(2) Affected employees. An eligible employee described in paragraph (1) is a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.

(c) Maintenance of health benefits.

(1) Coverage. Except as provided in paragraph (2), during any period that an eligible employee takes leave under Section 102, the employer shall maintain coverage under any "group health plan" (as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986) for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave.

(2) Failure to return from leave. The employer may recover the premium that the employer paid for maintaining coverage for the employee under such group health plan during any period of unpaid leave under Section 102 if:

(A) the employee fails to return from leave under Section 102 after the period of leave to which the employee is entitled has expired; and

(B) the employee fails to return to work for a reason other than:

(i) the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subparagraph (C) or (D) of Section 102(a)(1) or under Section 102(a)(3); or

(ii) other circumstances beyond the control of the employee.

(3) Certification.

(A) Issuance. An employer may require that a claim that an employee is unable to return to work because of the continuation, recurrence, or onset of the serious health condition described in paragraph (2)(B)(i) be supported by:

(i) a certification issued by the health care provider of the son, daughter, spouse or parent of the employee, as appropriate, in the case of an employee unable to return to work because of a condition specified in Section 102(a)(1)(C);

(ii) a certification issued by the health care provider of the eligible employee, in the case of an employee unable to return to work because of a condition specified in Section 102(a)(1)(D); or

(iii) a certification issued by the health care provider of the servicemember being cared for by the employee, in the case of an employee unable to return to work because of a condition specified in Section 102(a)(3).

(B) Copy. The employee shall provide, in a timely manner, a copy of such certification to the employer.

(C) Sufficiency of certification.

(i) Leave due to serious health condition of employee. The certification described in subparagraph (A)(ii) shall be sufficient if the certification states that a serious health condition prevented the employee from being able to perform the functions of the position of the employee on the date that the leave of the employee expired.

(ii) Leave due to serious health condition of family member. The certification described in subparagraph (A)(i) shall be sufficient if the certification states that the employee is needed to care for the son, daughter, spouse, or parent who has a serious health condition on the date that the leave of the employee expired.

Section 105. Prohibited Acts.

(a) Interference with rights.

(1) Exercise of rights. It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this Article.

(2) Discrimination. It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this Article.

(b) Interference with proceedings or inquiries. It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual:

(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this Article;

(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Article; or

(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Article.

Section 106. Investigative authority.

(a) In general. To ensure compliance with the provisions of this Article, or any rule or order issued under this Article, the Director shall have, subject to subsection (c), the authority to investigate complaints.

(b) Obligation to keep and preserve records. Any employer shall make, keep, and preserve records pertaining to compliance with this Article in accordance with rules adopted by the Director.

(c) Required submissions generally limited to an annual basis. The Director shall not under the authority of this Section require any employer or any plan, fund, or program to submit to the Director any books or records more than once during any 12-month period, unless the Director has reasonable cause to believe there may exist a violation of this Article or any rule or order issued pursuant to this Article, or is investigating a charge pursuant to Section 107(b).

(d) Subpoena powers. For the purposes of any investigation provided for in this Section, the Director shall have the authority to issue subpoenas.

Section 107. Enforcement.

(a) Civil action by employees.

(1) Liability. Any employer who violates Section 105 shall be liable to any eligible employee affected:

(A) for damages equal to:

(i) the amount of:

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

(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under Section 102(a)(3)) of wages or salary for the employee;

(ii) the interest on the amount described in clause (i) calculated at the rate of interest on judgments set forth in Section 2-1303 of the Code of Civil Procedure; and

(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated Section 105 proves to the satisfaction of the court that the act or omission which violated Section 105 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of Section 105, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and

(B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

(2) Right of action. An action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in the circuit court by any one or more employees for and in behalf of:

(A) the employees; or

(B) the employees and other employees similarly situated.

(3) Fees and costs. 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.

(4) Limitations. The right provided by paragraph (2) to bring an action by or on behalf of any employee shall terminate:

(A) on the filing of a complaint by the Director in an action under subsection (d) in which restraint is sought of any further delay in the payment of the amount described in paragraph (1)(A) to such employee by an employer responsible under paragraph (1) for the payment; or

(B) on the filing of a complaint by the Director in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an eligible employee by an employer liable under paragraph (1), unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Director.

(b) Action by the Director.

(1) Administrative action. The Director shall receive, investigate, and attempt to resolve complaints of violations of Section 105.

(2) Civil action. The Director may bring an action in the circuit court to recover the damages described in subsection (a)(1)(A).

(3) Sums recovered. Any sums recovered by the Director pursuant to paragraph (2) shall be held in a special deposit account and shall be paid, on order of the Director, directly to each employee affected. Any such sums not paid to an employee because of inability to do so within a period of 3 years shall be deposited into the General Revenue Fund.

(c) Limitation.

(1) In general. Except as provided in paragraph (2), an action may be brought under this Section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.

(2) Willful violation. In the case of such action brought for a willful violation of Section 105, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought.

(3) Commencement. In determining when an action is commenced by the Director under this Section for the purposes of this subsection, it shall be considered to be commenced on the date when the complaint is filed.

(d) Action for injunction by Director. The circuit court shall have jurisdiction, for cause shown, in an action brought by the Director:

(1) to restrain violations of Section 105, 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 eligible employees; or

(2) to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion.

Section 108. Special rules concerning employees of local educational agencies.

(a) Application.

(1) In general. Except as otherwise provided in this Section, the rights (including the rights under Section 104, which shall extend throughout the period of leave of any employee under this Section), remedies, and procedures under this Article shall apply to:

(A) any "local educational agency" (as defined in Section 1471(12) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 2891(12)) and an eligible employee of the agency; and

(B) any private elementary or secondary school and an eligible employee of the school.

(2) Definitions. For purposes of the application described in paragraph (1):

(A) Eligible employee. The term "eligible employee" means an eligible employee of an agency or school described in paragraph (1).

(B) Employer. The term "employer" means an agency or school described in paragraph (1).

(b) (Blank).

(c) Intermittent leave or leave on a reduced schedule for instructional employees.

(1) In general. Subject to paragraph (2), in any case in which an eligible employee employed principally in an instructional capacity by any such educational agency or school requests leave under subparagraph (C) or (D) of Section 102(a)(1) or under Section 102(a)(3) that is foreseeable based on planned medical treatment and the employee would be on leave for greater than 20 percent of the total number of working days in the period during which the leave would extend, the agency or school may require that such employee elect either:

(A) to take leave for periods of a particular duration, not to exceed the duration of the planned medical treatment; or

(B) to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified, and that:

(i) has equivalent pay and benefits; and

(ii) better accommodates recurring periods of leave than the regular employment position of the employee.

(2) Application. The elections described in subparagraphs (A) and (B) of paragraph (1) shall apply only with respect to an eligible employee who complies with Section 102(e)(2).

(d) Rules applicable to periods near the conclusion of an academic term. The following rules shall apply with respect to periods of leave near the conclusion of an academic term in the case of any eligible employee employed principally in an instructional capacity by any such educational agency or school:

(1) Leave more than 5 weeks prior to end of term. If the eligible employee begins leave under Section 102 more than 5 weeks prior to the end of the academic term, the agency or school may require the employee to continue taking leave until the end of such term, if:

(A) the leave is of at least 3 weeks duration; and

(B) the return to employment would occur during the 3-week period before the end of such term.

(2) Leave less than 5 weeks prior to end of term. If the eligible employee begins leave under subparagraph (A), (B), or (C) of Section 102(a)(1) or under Section 102(a)3 during the period that commences 5 weeks prior to the end of the academic term, the agency or school may require the employee to continue taking leave until the end of such term, if:

(A) the leave is of greater than 2 weeks duration; and

(B) the return to employment would occur during the 2-week period before the end of such term.

(3) Leave less than 3 weeks prior to end of term. If the eligible employee begins leave under subparagraph (A), (B), or (C) of Section 102(a)(1) or under Section 102(a)3 during the period that commences 3 weeks prior to the end of the academic term and the duration of the leave is greater than 5 working days, the agency or school may require the employee to continue to take leave until the end of such term.

(e) Restoration to equivalent employment position. For purposes of determinations under Section 104(a)(1)(B) (relating to the restoration of an eligible employee to an equivalent position), in the case of a local educational agency or a private elementary or secondary school, such determination shall be made on the basis of established school board policies and practices, private school policies and practices, and collective bargaining agreements.

(f) Reduction of the amount of liability. If a local educational agency or a private elementary or secondary school that has violated this Article proves to the satisfaction of the court that the agency, school, or department had reasonable grounds for believing that the underlying act or omission was not a violation of this Article, such court may, in the discretion of the court, reduce the amount of the liability provided for under Section 107(a)(1)(A) to the amount and interest determined under clauses (i) and (ii), respectively, of such Section.

Section 109. Notice.

(a) In general. Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the Director, setting forth excerpts from, or summaries of, the pertinent provisions of this Article and information pertaining to the filing of a charge.

(b) Penalty. Any employer that willfully violates this Section may be assessed a civil money penalty not to exceed $100 for each separate offense.

ARTICLE II. (BLANK)

ARTICLE III. (BLANK)

ARTICLE IV. MISCELLANEOUS PROVISIONS

Section 401. Effect on other laws.

(a) State antidiscrimination laws. Nothing in this Act shall be construed to modify or affect any State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability.

(b) State and local laws. Nothing in this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act.

Section 402. Effect on existing employment benefits.

(a) More protective. Nothing in this Act shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act.

(b) Less protective. The rights established for employees under this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.

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

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

Section 404.1. Applicability; coordination.

(1) In the case of a collective bargaining agreement in effect on the effective date of this Act, Article I shall apply on the earlier of:

(A) the date of the termination of such agreement; or

(B) the date that occurs 12 months after the effective date of this Act.

(2) Nothing in this Act shall be construed to limit the applicability of the federal Family and Medical Leave Act of 1993 with regard to employers and employees covered by that Act.

(3) In the case of leave that is subject to the federal Family and Medical Leave Act of 1993:

(A) the 12-month period during which 12 workweeks (or 26 weeks, in a case involving leave under Section 102(a)(3)) of leave may be taken under this Act shall run concurrently with the 12-month period under the federal Family and Medical Leave Act of 1993, and shall commence the date leave taken under the federal Family and Medical Leave Act of 1993 commences; and

(B) leave taken under this Act shall run concurrently with leave taken under the federal Family and Medical Leave Act of 1993.

(4) The aggregate amount of leave taken under this Act or the federal Family and Medical Leave Act of 1993, or both, shall not exceed 12 workweeks (or 26 weeks, in a case involving leave under Section 102(a)(3)) in a 12-month period.