Full Text of SB1190 98th General Assembly
SB1190sam001 98TH GENERAL ASSEMBLY | Sen. Toi W. Hutchinson Filed: 3/20/2013
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| 1 | | AMENDMENT TO SENATE BILL 1190
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1190 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Family Care Provider Act. | 6 | | Section 5. Purpose. It is the purpose of this Act that all | 7 | | employers required to comply with the Family and Medical Leave | 8 | | Act of 1993, 29 U.S.C. 2601, et seq., shall include | 9 | | grandparents and grandchildren as "eligible employees" for | 10 | | leave for the birth or adoption of a grandchild in order for | 11 | | the grandparent to care for that grandchild; for the placement | 12 | | of a grandchild with the grandparent for adoption or foster | 13 | | care; for the grandparent to care for the grandchild if that | 14 | | grandchild has a serious health condition; or for the | 15 | | grandchild to care for the grandparent if the grandparent has a | 16 | | serious health condition. |
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| 1 | | Section 10. Definitions. For the purposes of this Act: | 2 | | "Department" means the Department of Labor. | 3 | | "Director" means the Director of the Department of Labor. | 4 | | "Eligible employee" means an employee who has been employed | 5 | | for
(i) at least 12 months by the employer with respect to whom | 6 | | leave is requested under this Act and
(ii) has at least 1,250 | 7 | | hours of service with that employer during the previous | 8 | | 12-month period. | 9 | | "Eligible employee" does not include
any employee of an | 10 | | employer who is employed at a worksite at which the employer | 11 | | employs fewer than 50 employees if the total number of | 12 | | employees employed by that employer within 75 miles of that | 13 | | worksite is less than 50. | 14 | | "Employee benefits" means all benefits, other than salary | 15 | | and wages, provided or made available to employees by an | 16 | | employer and includes group life insurance, health insurance, | 17 | | disability insurance, and pensions, regardless of whether | 18 | | benefits are provided by a policy or practice of an employer. | 19 | | "Employer" has the meaning ascribed to that term in the | 20 | | Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. | 21 | | "Grandparent" means a biological, adopted, or step | 22 | | grandparent of an employee or a grandparent who is physically | 23 | | residing with the employee. | 24 | | "Grandchild" means a biological, adopted, or step | 25 | | grandchild of an employee or a grandchild who is physically |
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| 1 | | residing with the employee.
| 2 | | Section 15. Scope. All employers required to comply with | 3 | | the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et | 4 | | seq., are required to comply with this Act.
| 5 | | Section 20. Family leave requirement.
| 6 | | (a) Subject to the conditions set forth in this Section, an | 7 | | eligible employee is entitled to receive and each employer, as | 8 | | defined in Section 10 of this Act, must provide up to 12 weeks | 9 | | of unpaid family medical leave to an employee during any | 10 | | 12-month period for one or more of the following:
| 11 | | (1) the birth or adoption of a grandchild in order for | 12 | | the employee to care for the grandchild;
| 13 | | (2) the placement of a grandchild with the employee for | 14 | | adoption or foster care or the placement of a grandparent | 15 | | or grandchild to physically reside in the employee's home;
| 16 | | (3) the care for a grandchild if the grandchild has a | 17 | | serious health condition; or
| 18 | | (4) the care for a grandparent if the grandparent has a | 19 | | serious health condition. | 20 | | (b) In any case in which the necessity for leave under this | 21 | | Section is foreseeable, the employee shall provide the employer | 22 | | with notice of the employee's intention to take leave under | 23 | | this Section at least 30 days before the leave is to begin. If | 24 | | the date of the birth, adoption, or placement requires leave to |
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| 1 | | begin in fewer than 30 days or in the case of sudden medical | 2 | | emergency or health condition, the employee shall provide as | 3 | | much notice as is practicable. When able, the employee shall | 4 | | consult with the employer to schedule the leave so as to not | 5 | | unduly disrupt the operations of the employer. | 6 | | (c) An employee shall not take leave as provided under this | 7 | | Act unless he or she has exhausted all accrued vacation leave, | 8 | | personal leave, compensatory leave, and any other leave that | 9 | | may be granted to the employee, except sick leave and | 10 | | disability leave.
| 11 | | Section 25. Certification. | 12 | | (a) In general.
An employer may require that a request for | 13 | | leave be supported by a certification issued by the health care | 14 | | provider of the eligible employee or of the grandparent or | 15 | | grandchild in the case of leave taken under such subsection | 16 | | (a)(3) or (a)(4) of Section 20, as appropriate. The employee | 17 | | shall provide, in a timely manner, a copy of the certification | 18 | | to the employer.
| 19 | | (b) Sufficient certification.
Certification provided under | 20 | | subsection (a) of this Section shall be sufficient if it | 21 | | states: | 22 | | (1) the date on which the serious health condition | 23 | | commenced;
| 24 | | (2) the probable duration of the condition;
| 25 | | (3) the appropriate medical facts within the knowledge |
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| 1 | | of the health care provider regarding the condition;
| 2 | | (4)
for purposes of leave, a statement that the | 3 | | eligible employee is needed to care for the grandparent or | 4 | | grandchild and an estimate of the amount of time that the | 5 | | employee is needed to care for the grandchild or | 6 | | grandparent; | 7 | | (5) in the case of certification for intermittent leave | 8 | | or leave on a reduced leave schedule for planned medical | 9 | | treatment, the dates on which the treatment is expected to | 10 | | be given and the duration of the treatment;
| 11 | | (6) in the case of certification for intermittent leave | 12 | | or leave on a reduced leave schedule, a statement of the | 13 | | medical necessity for the intermittent leave or leave on a | 14 | | reduced leave schedule and the expected duration of the | 15 | | intermittent leave or reduced leave schedule; and
| 16 | | (7) in the case of certification for intermittent leave | 17 | | or leave on a reduced leave schedule, a statement that the | 18 | | employee's intermittent leave or leave on a reduced leave | 19 | | schedule is necessary for the care of a grandparent or | 20 | | grandchild, who has a serious health condition, or will | 21 | | assist in their recovery and the expected duration and | 22 | | schedule of the intermittent leave or reduced leave | 23 | | schedule.
| 24 | | (c) Second opinion. | 25 | | (1) In general.
In any case in which the employer has | 26 | | reason to doubt the validity of the certification for leave |
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| 1 | | provided under subsection (a) of this Section, the employer | 2 | | may require, at the expense of the employer, that the | 3 | | eligible employee obtain the opinion of a second health | 4 | | care provider designated or approved by the employer | 5 | | concerning any information certified as provided in | 6 | | subsection (b) of this Section for the leave.
| 7 | | (2) Limitation.
A health care provider designated or | 8 | | approved under paragraph (1) shall not be employed on a | 9 | | regular basis by the employer. | 10 | | (d) Resolution of conflicting opinions.
| 11 | | (1) In general.
In any case in which the second opinion | 12 | | described in subsection (c) of this Section differs from | 13 | | the opinion in the original certification provided under | 14 | | subsection (a) of this Section, the employer may require, | 15 | | at the expense of the employer, that the employee obtain | 16 | | the opinion of a third health care provider designated or | 17 | | approved jointly by the employer and the employee | 18 | | concerning the information certified as provided in | 19 | | subsection (b) of this Section.
| 20 | | (2) Finality.
The opinion of the third health care | 21 | | provider concerning the information certified as provided | 22 | | in subsection (b) of this Section shall be considered to be | 23 | | final and shall be binding on the employer and the | 24 | | employee. | 25 | | (e) Subsequent recertification.
The employer may require | 26 | | that the eligible employee obtain subsequent recertifications |
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| 1 | | on a reasonable basis.
| 2 | | Section 30. Employee benefits protection. | 3 | | (a) Any employee who exercises the right to leave under | 4 | | this Act shall be entitled upon expiration of the leave to be | 5 | | restored by the employer to the position held by the employee | 6 | | when the leave commenced or to a position with equivalent | 7 | | seniority status, employee benefits, pay, and other terms and | 8 | | conditions of employment. This Section does not apply if the | 9 | | employer proves that the employee was not restored as provided | 10 | | in this Section because of conditions unrelated to the | 11 | | employee's exercise of rights under this Act.
| 12 | | (b) During any leave taken under this Act, the employer | 13 | | shall continue employee benefits at the employer's expense.
| 14 | | Section 35. Effect on existing employee benefits.
| 15 | | (a) Taking leave under this Act shall not result in the | 16 | | loss of any employee benefit accrued before the date on which | 17 | | the leave commenced.
| 18 | | (b) Nothing in this Act shall be construed to affect an | 19 | | employer's obligation to comply with any collective bargaining | 20 | | agreement or employee benefit plan that provides greater leave | 21 | | rights to employees than the rights provided under this Act.
| 22 | | (c) The leave rights provided under this Act shall not be | 23 | | diminished by any collective bargaining agreement or employee | 24 | | benefit plan.
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| 1 | | (d) Nothing in this Act shall be construed to affect or | 2 | | diminish the contract rights or seniority status of any other | 3 | | employee of any employer covered under this Act. | 4 | | Section 40. Prohibited acts.
| 5 | | (a) An employer shall not interfere with, restrain, or deny | 6 | | the exercise or the attempt to exercise any right provided | 7 | | under this Act.
| 8 | | (b) An employer shall not discharge, fine, suspend, expel, | 9 | | discipline, or in any other manner discriminate against any | 10 | | employee that exercises any right provided under this Act.
| 11 | | (c) An employer shall not discharge, fine, suspend, expel, | 12 | | discipline, or in any other manner discriminate against any | 13 | | employee for opposing any practice made unlawful by this Act.
| 14 | | Section 45. Enforcement. | 15 | | (a) The Director or his or her authorized representative | 16 | | shall administer and enforce the provisions of this Act. Within | 17 | | 3 years after an alleged violation occurs, any employee who | 18 | | believes his or her rights under this Act have been violated or | 19 | | his or her representative may file a complaint with the | 20 | | Department requesting a review of the alleged violation. A copy | 21 | | of the complaint shall be sent to the person who allegedly | 22 | | committed the violation, who shall be the respondent. Upon | 23 | | receipt of a complaint, the Director shall cause such | 24 | | investigation to be made as he or she deems appropriate. The |
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| 1 | | investigation shall provide an opportunity for an | 2 | | administrative hearing at the request of any party to the | 3 | | review to enable the parties to present information relating to | 4 | | the alleged allegation. | 5 | | A party may be accompanied at an administrative hearing by | 6 | | his or her attorney or other representative. The participation | 7 | | of the other representative in the informal hearing shall be | 8 | | limited to fact-finding and support functions. Other | 9 | | representatives shall not be permitted to engage in any conduct | 10 | | or function that constitutes or reasonably approximates the | 11 | | practice of law. Other representatives shall not examine or | 12 | | cross-examine any party or witness; offer any documents or | 13 | | other exhibits into evidence; make evidentiary, procedural, or | 14 | | other legal objections; cite, file, or interpret case law, | 15 | | statutes, administrative rulings, or other legal authority; | 16 | | make legal arguments or interpretations; or give legal advice | 17 | | or opinions to parties or witnesses. Other representatives must | 18 | | provide to the represented party for signature a written | 19 | | disclosure document that explicitly states that the | 20 | | representative is not an attorney and that the representative | 21 | | is not permitted to present legal arguments or otherwise engage | 22 | | in any function that reasonably approximates the practice of | 23 | | law as described in this subsection. The document shall be | 24 | | signed by both the representative and the represented party. | 25 | | (b) The parties may bring witnesses to the hearing, and the | 26 | | hearing officer shall hear witnesses with information related |
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| 1 | | to the claim. The hearing officer shall determine the order in | 2 | | which the witnesses are to be heard and shall limit testimony | 3 | | to that which is relevant and material to the claim, not | 4 | | cumulative in nature, and not unduly repetitious. In deciding | 5 | | whether to permit a witness to testify, the hearing officer may | 6 | | consider the relevance and materiality of the testimony. The | 7 | | hearing officer may exclude witnesses from the hearing when | 8 | | they are not giving testimony. The hearing officer shall | 9 | | conduct and control the proceedings. | 10 | | The parties shall be given written notice of the time and | 11 | | place of the hearing at least 7 days before the hearing. Upon | 12 | | receiving the report of the investigation, the Director shall | 13 | | make findings of fact. If the Director finds that a violation | 14 | | did occur, he or she shall issue a decision incorporating his | 15 | | or her findings and requiring the party committing the | 16 | | violation to take such affirmative action to abate the | 17 | | violation as the Director deems appropriate, including: | 18 | | (1) damages equal to the amount of wages, salary, | 19 | | employment benefits, public assistance, or other | 20 | | compensation denied or lost to such individual by reason of | 21 | | the violation and the interest on that amount calculated at | 22 | | the prevailing rate;
| 23 | | (2) such equitable relief as may be appropriate, | 24 | | including, but not limited to, hiring, reinstatement, | 25 | | promotion, and reasonable accommodations; and
| 26 | | (3) reasonable attorney's fees, reasonable expert |
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| 1 | | witness fees, and other costs of the action to be paid by | 2 | | the respondent to a prevailing employee.
| 3 | | If the Director finds that there was no violation, he or | 4 | | she shall issue an order denying the complaint. An order issued | 5 | | by the Director under this Section shall be final and subject | 6 | | to judicial review under the Administrative Review Law.
| 7 | | (c) The Director shall adopt rules necessary to administer | 8 | | and enforce this Act in accordance with the Illinois | 9 | | Administrative Procedure Act. The Director shall have the | 10 | | powers and the parties shall have the rights provided in the | 11 | | Illinois Administrative Procedure Act for contested cases, | 12 | | including, but not limited to, provisions for depositions, | 13 | | subpoena power and procedures, and discovery and protective | 14 | | order procedures.
| 15 | | (d) The Department may establish an administrative | 16 | | procedure to adjudicate claims and to issue final and binding | 17 | | administrative decisions on such claims subject to the | 18 | | Administrative Review Law. To establish such a procedure, the | 19 | | Director or her or his authorized representative may promulgate | 20 | | rules. The adoption, amendment or rescission of rules for such | 21 | | a procedure shall be in conformity with the requirements of the | 22 | | Illinois Administrative Procedure Act.
| 23 | | (e) The Attorney General of Illinois may intervene on | 24 | | behalf of the Department if the Department certifies that the | 25 | | case is of general public importance. Upon such intervention | 26 | | the court may award such relief as is authorized to be granted |
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| 1 | | to an employee who has filed a complaint or whose | 2 | | representative has filed a complaint under this Section.
| 3 | | Section 50. Refusal to pay damages. Any employer who has | 4 | | been ordered by the Director of Labor or the court to pay | 5 | | damages under this Section is liable for: | 6 | | (1) damages equal to the amount of wages, salary, | 7 | | employment benefits, public assistance, or other | 8 | | compensation denied or lost to such individual by reason of | 9 | | the violation and the interest on that amount calculated at | 10 | | the prevailing rate; | 11 | | (2) such equitable relief as may be appropriate; and
| 12 | | (3) reasonable attorney's fees, reasonable expert | 13 | | witness fees, and other costs of the action to be paid by | 14 | | the respondent to a prevailing employee.
| 15 | | Section 99. Effective date. This Act takes effect upon | 16 | | becoming law.".
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