Full Text of HB5409 98th General Assembly
HB5409 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB5409 Introduced , by Rep. Robyn Gabel SYNOPSIS AS INTRODUCED: |
| New Act | | 30 ILCS 105/5.855 new | |
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Creates the Family Leave Insurance Program Act to establish a fund to provide income support for men and women who are temporarily unable to work due to their own serious illness or their need to provide care to a newborn, newly adopted or newly placed foster child, or to a seriously ill family member. Provides for administration by the Department of Employment Security. Provides for an assessment upon employees and employers. Authorizes civil penalties. Effective January 1, 2015.
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| | FISCAL NOTE ACT MAY APPLY | | STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT |
| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the Family | 5 | | Leave Insurance Program Act. | 6 | | Section 5. Findings and purpose. | 7 | | (a) The General Assembly finds: | 8 | | (1) Although family leave laws have assisted employees | 9 | | to balance the demands of the workplace with their family | 10 | | responsibilities, more needs to be done to achieve the | 11 | | goals of workforce stability and economic security. | 12 | | (2) Many employees do not have access to family and | 13 | | medical leave, and those who do may not be in a financial | 14 | | position to take leave that is unpaid. Employees that are | 15 | | compelled to take leave in spite of financial inability to | 16 | | do so often fall into debt from which it is hard to | 17 | | recover. | 18 | | (3) Most families no longer have one person who is the | 19 | | full-time caregiver and one who is the full-time | 20 | | breadwinner. | 21 | | (4) The majority of mothers with school-age children | 22 | | are in the workforce. | 23 | | (5) It is important for a child's development that |
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| 1 | | mothers and fathers be able to participate in early | 2 | | childrearing. | 3 | | (6) The average weekly hours of family caregiving for | 4 | | adults amounts to a part-time job. | 5 | | (7) Employer-paid benefits meet only a small part of | 6 | | this need. Benefits are often given to some workers but not | 7 | | all. | 8 | | (8) The working population in Illinois contains a high | 9 | | number of "baby boom" workers approaching retirement age, | 10 | | who are increasingly called upon to care for their own | 11 | | parents, an impaired spouse, or a grandchild. Older workers | 12 | | need time off to care for themselves or rely on care from | 13 | | younger relatives who are in the workforce. The | 14 | | establishment of paid family and medical leave benefits | 15 | | will ease workplace demands and reduce the impact on State | 16 | | income-support programs by increasing the ability of | 17 | | workers to recover from illness or provide care-giving | 18 | | services for family members while maintaining employment. | 19 | | (9) Employers will benefit from the establishment of a | 20 | | family leave insurance program because of higher retention | 21 | | rates and lower costs in turnover and retraining when | 22 | | employees are able to take a leave and return to the job. | 23 | | (10) Employers who could otherwise not afford to offer | 24 | | paid leave will benefit from a paid leave program that does | 25 | | not require them to fund the full costs. | 26 | | (b) This Act is enacted to establish a Family Leave |
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| 1 | | Insurance Program to provide limited income support for a | 2 | | reasonable period while an employee is away from work on family | 3 | | leave, a policy which protects the health and safety of | 4 | | Illinois residents and strengthens the Illinois economy. | 5 | | Section 10. Definitions. In this Act, the following terms | 6 | | have the following meanings: | 7 | | "Application year" means the 12-month period beginning on | 8 | | the first day of the calendar week in which an employee files | 9 | | an application for FLIP benefits and, thereafter, the 12-month | 10 | | period beginning with the first day of the calendar week in | 11 | | which the employee files a subsequent application for FLIP | 12 | | benefits after the expiration of the employee's last preceding | 13 | | application year. | 14 | | "Child" means a person who is a biological, adopted, or | 15 | | foster child, a stepchild, a legal ward, or a child of a person | 16 | | standing in loco parentis, and who is: | 17 | | (1) under 18 years of age; or | 18 | | (2) eighteen years of age or older and incapable of | 19 | | self-care because of a mental or physical disability. | 20 | | "Department" means the Department of Employment Security. | 21 | | "Employer" means one who employs 10 or more employees, | 22 | | including the State and its political subdivisions.
| 23 | | "Family leave" means leave taken by an employee who is | 24 | | temporarily disabled or unavailable to work because she or he | 25 | | has to care for a newborn child, or a newly-placed adopted or |
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| 1 | | foster child (and leave is completed within 12 months after the | 2 | | birth or the placement of the child for foster care or | 3 | | adoption), to care for a family member who has a serious health | 4 | | condition, or because of the employee's own serious health | 5 | | condition, making them unable to perform the functions of the | 6 | | employee's position. | 7 | | "Family member" means a child, spouse, grandchild, | 8 | | grandparent, step grandparent, parent or parent-in-law of the | 9 | | employee, or persons jointly residing in the same household. | 10 | | "FLIP" means the Family Leave Insurance Program. | 11 | | "FLIP trust fund" means the trust fund created under | 12 | | Section 45 of this Act. | 13 | | "Healthcare provider" means a person licensed as a | 14 | | physician under the Medical Practice Act of 1987. | 15 | | "Parent" means a biological or adoptive parent, a | 16 | | stepparent, or a person who stands in loco parentis to an | 17 | | employee or an employee's spouse.
| 18 | | "Premium" means the money payments required by this Act to | 19 | | be made to the Department for the FLIP trust fund. | 20 | | "Qualifying year" means the first 4 of the last 5 completed | 21 | | calendar quarters or the last 4 completed calendar quarters | 22 | | immediately preceding the first day of the employee's | 23 | | application year. | 24 | | "Serious health condition" means an illness, injury, | 25 | | impairment, or physical or mental condition, that involves | 26 | | inpatient care in a hospital, hospice, or residential medical |
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| 1 | | care facility or continuing treatment by a healthcare provider.
| 2 | | Section 15. Family leave benefits. | 3 | | (a) The Department shall establish and administer a FLIP | 4 | | program and establish procedures and forms for filing benefit | 5 | | claims. The Department shall notify the employer within 2 | 6 | | business days of a claim being filed. | 7 | | (b) Family leave benefits are payable to an employee during | 8 | | a period in which the employee is on FLIP leave if the | 9 | | employee: | 10 | | (1) Files a claim for benefits as required by rules | 11 | | adopted by the Department. | 12 | | (2) Has earned at least $1,600 and has been employed at | 13 | | least 6 months during the employee's qualifying year for | 14 | | the employer from whom the employee is on FLIP leave. | 15 | | (3) Documents that he or she has provided the employer | 16 | | from whom FLIP leave is to be taken with written notice of | 17 | | his or her intention to take FLIP leave as follows: | 18 | | (i) If the necessity for FLIP leave was foreseeable | 19 | | based on an expected birth, placement, or treatment, | 20 | | notice was given at least 30 days before the FLIP leave | 21 | | was to begin, stating the anticipated starting date and | 22 | | ending date of the leave. | 23 | | (ii) If the date of birth, placement, or treatment | 24 | | requiring FLIP leave will begin in less than 30 days, | 25 | | as much notice as practical was given. |
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| 1 | | (iii) In the case of medical treatment, the | 2 | | employee made reasonable efforts to schedule the | 3 | | treatment so as not to unduly disrupt the operations of | 4 | | the employer, subject to the approval of the healthcare | 5 | | provider. | 6 | | (c) An employee is disqualified from FLIP benefits | 7 | | beginning with the first day of the calendar week and | 8 | | continuing for the next 52 consecutive weeks, if the employee: | 9 | | (1) willfully made a false statement or | 10 | | misrepresentation regarding a material fact, or willfully | 11 | | failed to report a material fact, to obtain benefits under | 12 | | this Act; or | 13 | | (2) seeks benefits based on a willful and intentional | 14 | | self-inflicted serious health condition or a serious | 15 | | health condition resulting from the employee's | 16 | | perpetration of a felony. | 17 | | An employee is not disqualified for benefits for any week | 18 | | when there is a strike or lockout at the factory, | 19 | | establishment, or other premises at which the employee is or | 20 | | was last employed. | 21 | | Section 20. Duration and amount of benefits. | 22 | | (a) In an application year, FLIP benefits are payable for a | 23 | | maximum of 4 weeks. Payments must be made within 2 weeks after | 24 | | an employee begins FLIP leave. | 25 | | (b) FLIP benefits shall be paid as follows: |
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| 1 | | (1) Benefits shall be 67% of weekly wages up to a | 2 | | maximum of $380 per week for an employee who at the time | 3 | | FLIP leave began was regularly working 35 hours or more per | 4 | | week or a prorated amount based on the weekly hours | 5 | | regularly worked for an employee regularly working less | 6 | | than 35 hours per week. | 7 | | (2) The Department annually shall calculate to the | 8 | | nearest dollar an adjusted maximum benefit to account for | 9 | | inflation using the consumer price index for urban wage | 10 | | earners and clerical workers (CPI-W or a successor index). | 11 | | (3) If an employee disclosed that he or she owes child | 12 | | support obligations and the Department determines that the | 13 | | employee is eligible for benefits, the Department shall | 14 | | notify the applicable State or local child support | 15 | | enforcement agency and deduct and withhold an amount from | 16 | | benefits. | 17 | | (4) If an employee elects to have income tax deducted | 18 | | and withheld from benefits, the Department shall deduct and | 19 | | withhold the amount specified under the federal Internal | 20 | | Revenue Code and under the Illinois Income Tax Act. | 21 | | (c) If FLIP benefits are paid erroneously or as a result of | 22 | | fraud or if a claim for benefits is rejected after benefits are | 23 | | paid, the Department shall seek repayment of benefits from the | 24 | | recipient. | 25 | | (d) If an employee dies while on FLIP leave before | 26 | | receiving payment of benefits, the payment shall be made by the |
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| 1 | | Department to the surviving spouse or the child or children if | 2 | | there is no surviving spouse. If there is no surviving spouse | 3 | | and no child or children, the payment shall be made and | 4 | | distributed consistent with the terms of the decedent's will | 5 | | or, if the decedent dies intestate, consistent with the terms | 6 | | of the Probate Act of 1975. | 7 | | Section 25. Existing benefits not diminished. | 8 | | (a) Nothing in this Act shall be construed to limit an | 9 | | employee's right to leave from employment under other laws or | 10 | | employer policy. | 11 | | (b) If an employer provides paid time off or an employee is | 12 | | covered by disability insurance, the employee may elect whether | 13 | | first to use the paid time off or to receive temporary | 14 | | disability benefits. An employee may not be required to use his | 15 | | or her paid time off or disability insurance to which he or she | 16 | | is entitled before receiving benefits under this Act. | 17 | | (c) An employer may require that FLIP leave for which an | 18 | | employee is receiving or received benefits under this Act be | 19 | | taken concurrently with leave under the federal Family and | 20 | | Medical Leave Act or other applicable federal, State or local | 21 | | law, except that: | 22 | | (1) FLIP leave during which the employee is receiving | 23 | | or received benefits under this Act is in addition to leave | 24 | | from employment during which benefits are paid or are | 25 | | payable under the Workers' Compensation Act and that is |
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| 1 | | designated as leave under the federal Family and Medical | 2 | | Leave Act. | 3 | | (2) An employee who is receiving or received FLIP | 4 | | benefits under this Act may not be required to concurrently | 5 | | take leave under the federal Family and Medical Leave Act, | 6 | | or other applicable federal, State, or local law. | 7 | | (d) Benefits under this Act are supplementary to a federal, | 8 | | State, or local law establishing similar entitlement benefits, | 9 | | and if a federal, State, or local law applying to the employee | 10 | | establishes a more favorable right to return to his or her | 11 | | position than is established under this Act, the application of | 12 | | that federal, State, or local law is not affected by this Act. | 13 | | (e) This Act is not to be construed to diminish an | 14 | | employer's obligation to comply with a collective bargaining | 15 | | agreement or an employment benefit program or plan that | 16 | | provides greater benefits to employees than FLIP benefits | 17 | | provided under this Act. | 18 | | (f) An agreement by an employee to waive his or her rights | 19 | | under this Act is void as against public policy. The benefits | 20 | | provided to employees under this Act may not be diminished by a | 21 | | collective bargaining agreement or an employment benefit | 22 | | program or plan entered into or renewed after the effective | 23 | | date of this Act. | 24 | | Section 30. Election of coverage. | 25 | | (a) An employer can opt out of participation in the FLIP |
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| 1 | | under this Act if: | 2 | | (1) the employer is participating in a private plan | 3 | | that meets or exceeds all benefits under the FLIP, or | 4 | | (2) the employer provides its own coverage that meets | 5 | | or exceeds all benefits under the FLIP. | 6 | | (b) An employer of employees not covered by this Act or a | 7 | | self-employed person may elect coverage under the FLIP under | 8 | | this Act for an initial period of not less than 3 years or a | 9 | | subsequent period of not less than one year immediately | 10 | | following another period of coverage. The employer or | 11 | | self-employed person must file a notice of election in writing | 12 | | with the Department. The election takes effect on the date of | 13 | | filing the notice. | 14 | | (c) An employer or self-employed person who has elected | 15 | | coverage may withdraw from coverage within 30 days after the | 16 | | end of the 3-year period of coverage, or at other times as the | 17 | | Department may prescribe by rule, by filing written notice with | 18 | | the Department. The withdrawal shall take effect not sooner | 19 | | than 30 days after the filing of the notice. | 20 | | (d) The Department may cancel elective coverage if the | 21 | | employer or self-employed person fails to provide required | 22 | | payments or reports. The Department may collect due and unpaid | 23 | | premiums and may levy an additional premium for the remainder | 24 | | of the period of coverage. The cancellation shall be effective | 25 | | no later than 30 days after the date of the notice in writing | 26 | | advising the employer or self-employed person of the |
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| 1 | | cancellation. | 2 | | Section 35. Records and reports. | 3 | | (a) The Department shall specify the forms and times for | 4 | | employers to provide reports, furnish information, and remit | 5 | | premiums. If the employer is a temporary services agency that | 6 | | provides employees on a temporary basis to its customers, the | 7 | | temporary services agency is considered the employer for | 8 | | purposes of this Section. However, if the temporary services | 9 | | agency fails to remit the required premiums, the customer to | 10 | | whom the employees were provided is liable for paying the | 11 | | premiums. | 12 | | (b) An employer must keep at its place of business a record | 13 | | of employment from which the information needed by the | 14 | | Department for purposes of this Act may be obtained. This | 15 | | record shall at all times be open to the inspection of the | 16 | | Department pursuant to rules adopted by the Department. | 17 | | (c) Information obtained from employer records under this | 18 | | Act is confidential and not open to public inspection other | 19 | | than to public employees in the performance of their official | 20 | | duties. An interested party, however, shall be supplied with | 21 | | information from employer records to the extent necessary for | 22 | | the proper presentation of the case in question. An employer | 23 | | may authorize inspection of its records by written consent. | 24 | | Section 40. Disposal of business. |
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| 1 | | (a) When an employer ceases business or sells out, | 2 | | exchanges, or otherwise disposes of the business or stock of | 3 | | goods, any premium payable under this Act is immediately due | 4 | | and payable, and the employer must, within 10 days thereafter, | 5 | | make a return and pay the premium due. A person who becomes a | 6 | | successor to the business is liable for the full amount of the | 7 | | premium and must withhold from the purchase price a sum | 8 | | sufficient to pay any premium due from the employer until the | 9 | | employer produces a receipt from the Department showing payment | 10 | | in full of any premium due or a certificate that no premium is | 11 | | due and, if the premium is not paid by the employer within 10 | 12 | | days from the date of the sale, exchange, or disposal, the | 13 | | successor is liable for the payment of the full amount of | 14 | | premium. The successor's payment thereof is, to the extent | 15 | | thereof, a payment upon the purchase price, and if the payment | 16 | | is greater in amount than the purchase price, the amount of the | 17 | | difference is a debt due the successor from the employer. | 18 | | (b) A successor is not liable for any premium due from the | 19 | | person from whom the successor has acquired a business or stock | 20 | | of goods if the successor gives written notice to the | 21 | | Department of the acquisition and no assessment is issued by | 22 | | the Department within 180 days after receipt of the notice | 23 | | against the former operator of the business and a copy is | 24 | | mailed to the successor. | 25 | | Section 45. FLIP Trust Fund. |
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| 1 | | (a) The FLIP Trust Fund is created as a special fund in the | 2 | | State treasury. The fund shall be administered by the | 3 | | Department. The moneys in this fund shall be used, pursuant to | 4 | | appropriation, by the Department only for the purposes of the | 5 | | FLIP Program. All moneys received pursuant to this Act shall be | 6 | | deposited into the fund. | 7 | | (b) An employer shall deduct from the earnings of each | 8 | | full-time employee a premium in the amount of $1.50 per week | 9 | | and from the earnings of each part-time employee an amount | 10 | | pro-rated based on the number of actual hours worked. The | 11 | | employer shall match the amount deducted by an equal amount, | 12 | | and those amounts shall be paid to the Department in the manner | 13 | | and at the times as the Department directs for deposit in the | 14 | | FLIP Trust Fund. | 15 | | (c) The Department shall adjust the amount of the premium | 16 | | from time to time to ensure that the amount is the lowest rate | 17 | | necessary to pay FLIP benefits and administrative costs and | 18 | | maintain actuarial solvency in accordance with recognized | 19 | | insurance principles. | 20 | | (d) The Department may adopt rules to permit an employee | 21 | | with multiple employers and his or her employers to petition | 22 | | for refunds or credits of amounts paid to the Department for | 23 | | hours in excess of 35 hours per week worked by the employee. | 24 | | Section 50. Taxation of FLIP benefits; notice. The | 25 | | Department must advise an employee filing a new claim for FLIP |
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| 1 | | benefits, at the time of filing such claim, that: | 2 | | (1) benefits are subject to federal income tax and | 3 | | state income tax; | 4 | | (2) requirements exist pertaining to estimated tax | 5 | | payments; | 6 | | (3) the employee may elect to have income tax deducted | 7 | | and withheld from the employee's payment of benefits as | 8 | | provided under the Internal Revenue Code or the Illinois | 9 | | Income Tax Act; and | 10 | | (4) an employee may change a previously elected | 11 | | withholding status. | 12 | | Section 55. Discrimination against claimants prohibited.
| 13 | | (a) An employer, temporary services agency, employment | 14 | | agency, employee organization, or other person may not | 15 | | discharge, expel, or otherwise discriminate or retaliate | 16 | | against a person because he or she has filed or communicated to | 17 | | the employer an intent to file a claim, a complaint, or an | 18 | | appeal, has taken FLIP leave, or has testified or is about to | 19 | | testify or has assisted in any proceeding under this Act. | 20 | | (b) An employer who violates this Act shall be liable to | 21 | | any affected individuals for actual damages with interest and | 22 | | for such equitable relief as may be appropriate. An action may | 23 | | be brought under this Section not later than 3 years after the | 24 | | date of the last event constituting the alleged violation for | 25 | | which the action is brought. |
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| 1 | | Section 60. No entitlement created.
| 2 | | (a) Family leave benefits are payable under this Act only | 3 | | to the extent that moneys are available in the FLIP Trust Fund | 4 | | for this purpose. Neither the State nor the Department is | 5 | | liable for any amount in excess of these limits. | 6 | | (b) This Act does not create a continuing entitlement or | 7 | | contractual right. There is no vested private right of any kind | 8 | | against amendment or repeal of this Act. | 9 | | Section 65. Notices to employees required. | 10 | | (a) An employer covered by this Act shall post and keep | 11 | | posted, in conspicuous places on the premises of the employer | 12 | | where notices to employees are customarily posted, a notice, | 13 | | prepared or approved by the Department, summarizing the | 14 | | requirements of this Act and information pertaining to the | 15 | | filing of a charge. | 16 | | (b) If a FLIP-covered employer has any written guidance to | 17 | | employees concerning employee benefits or leave rights, such as | 18 | | in an employee handbook, information concerning FLIP | 19 | | entitlements and employee obligations under the FLIP must be | 20 | | included in the handbook or other document. | 21 | | (c) An employer that willfully violates the requirements of | 22 | | subsection (a) or (b) may be assessed a civil money penalty by | 23 | | the Department not to exceed $1000 for each separate offense. | 24 | | In addition, an employer that fails to provide notice as |
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| 1 | | required under subsection (a) or (b) may not take any adverse | 2 | | action against an employee, including denying FLIP leave, for | 3 | | failing to furnish the employer with advance notice of a need | 4 | | to take FLIP leave. | 5 | | (d) When an employer's workforce is comprised of a | 6 | | significant portion of workers who are not literate in English, | 7 | | the employer shall be responsible for providing the notice in a | 8 | | language in which the employees are literate. | 9 | | Section 70. Rules. The Department may adopt rules as | 10 | | necessary to implement this Act. In adopting rules, the | 11 | | Department shall maintain consistency with the rules adopted to | 12 | | implement the federal Family and Medical Leave Act, to the | 13 | | extent those rules are not in conflict with this Act.
| 14 | | Section 97. Severability. The provisions of this Act are | 15 | | severable under Section 1.31 of the Statute on Statutes. | 16 | | Section 98. The State Finance Act is amended by adding | 17 | | Section 5.855 as follows: | 18 | | (30 ILCS 105/5.855 new) | 19 | | Sec. 5.855. The FLIP Trust Fund.
| 20 | | Section 99. Effective date. This Act takes effect January | 21 | | 1, 2015.
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