State of Illinois
90th General Assembly
Legislation

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[ Engrossed ][ House Amendment 001 ]

90_HB3477

      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, except that it applies to
      employers with 25 or more (instead of 50 or  more)  employees
      and  some  of the provisions of the Federal law pertaining to
      federal employees and federal matters have  been  deleted  or
      changed.   Effective 6 months after becoming law.
                                                     LRB9011164WHmg
                                               LRB9011164WHmg
 1        AN  ACT to grant family and temporary medical leave under
 2    certain circumstances.
 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:
 5       ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL
 6                       REQUIREMENTS FOR LEAVE
 7        Section  100.  Short  title. This Act may be cited as the
 8    Illinois Family and Medical Leave Act.
 9        Section 100.1. Findings and purposes.
10        (a) Findings.  The General Assembly finds that:
11             (1)  the  number  of  single-parent  households  and
12        two-parent households in which the single parent or  both
13        parents work is increasing significantly;
14             (2)  it is important for the development of children
15        and the family unit that fathers and mothers be  able  to
16        participate  in early childrearing and the care of family
17        members who have serious health conditions;
18             (3) the lack of employment policies  to  accommodate
19        working  parents  can force individuals to choose between
20        job security  and parenting;
21             (4) there is inadequate job security  for  employees
22        who have serious health conditions that prevent them from
23        working for temporary periods;
24             (5)  due to the nature of the roles of men and women
25        in our society, the  primary  responsibility  for  family
26        caretaking  often falls on women, and such responsibility
27        affects the working lives of women more than  it  affects
28        the working lives of men; and
29             (6)  employment  standards  that apply to one gender
30        only have serious potential for encouraging employers  to
                            -2-                LRB9011164WHmg
 1        discriminate   against   employees   and  applicants  for
 2        employment who are of that gender.
 3        (b) Purposes. It is the purpose of this Act:
 4             (1) to balance the demands of the workplace with the
 5        needs of families, to promote the stability and  economic
 6        security  of  families, and to promote national interests
 7        in preserving  family integrity;
 8             (2) to entitle employees to  take  reasonable  leave
 9        for  medical  reasons,  for  the  birth  or adoption of a
10        child, and for the care of a child, spouse, or parent who
11        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
                            -3-                LRB9011164WHmg
 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  worksite  at  which  such  employer
 9             employs  less  than 25 employees if the total number
10             of employees employed by  that  employer  within  75
11             miles of that worksite is less than 25.
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 25 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,
                            -4-                LRB9011164WHmg
 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-                LRB9011164WHmg
 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,  or  parent,  of  the  employee,  if  such
28             spouse, son,  daughter,  or  parent  has  a  serious
29             health condition.
30                  (D)  Because of a serious health condition that
31             makes the employee unable to perform  the  functions
32             of the position of such employee.
33             (2)  Expiration  of  entitlement. The entitlement to
                            -6-                LRB9011164WHmg
 1        leave under subparagraphs (A) and (B)  of  paragraph  (1)
 2        for  a  birth  or  placement  of  a son or daughter shall
 3        expire at the end of the 12-month period beginning on the
 4        date of such birth or placement.
 5        (b) Leave taken intermittently  or  on  a  reduced  leave
 6    schedule.
 7             (1)  In general. Leave under subparagraph (A) or (B)
 8        of subsection (a)(1) shall not be taken  by  an  employee
 9        intermittently  or on a reduced leave schedule unless the
10        employee  and  the  employer  of   the   employee   agree
11        otherwise.  Subject  to paragraph (2), subsection (e)(2),
12        and Section 103(b)(5), leave under  subparagraph  (C)  or
13        (D)  of  subsection (a)(1) may be taken intermittently or
14        on a reduced leave schedule when medically necessary. The
15        taking of leave intermittently  or  on  a  reduced  leave
16        schedule pursuant to this paragraph shall not result in a
17        reduction  in  the  total  amount   of leave to which the
18        employee is entitled  under  subsection  (a)  beyond  the
19        amount of leave actually taken.
20             (2)  Alternative  position.  If an employee requests
21        intermittent leave, or leave on a reduced leave schedule,
22        under subparagraph (C) or (D) of subsection (a)(1),  that
23        is  foreseeable  based  on planned medical treatment, the
24        employer    may  require  such   employee   to   transfer
25        temporarily  to an available alternative position offered
26        by the employer for  which the employee is qualified  and
27        that:
28                  (A) has equivalent pay and benefits; and
29                  (B)  better  accommodates  recurring periods of
30             leave than the regular employment  position  of  the
31             employee.
32        (c)   Unpaid  leave  permitted.  Except  as  provided  in
33    subsection  (d),  leave  granted  under  subsection  (a)  may
34    consist of unpaid  leave.  Where  an  employee  is  otherwise
                            -7-                LRB9011164WHmg
 1    exempt  under regulations issued by the Secretary of the U.S.
 2    Department of Labor pursuant to Section 13(a)(1) of the  Fair
 3    Labor  Standards  Act  of  1938  (29  U.S.C.  213(a)(1)), the
 4    compliance of an employer  with  this  Article  by  providing
 5    unpaid  leave  shall  not  affect  the  exempt  status of the
 6    employee under such Section.
 7        (d) Relationship to paid leave.
 8             (1) Unpaid leave. If an employer provides paid leave
 9        for  fewer than 12 workweeks,  the  additional  weeks  of
10        leave    necessary  to  attain  the 12 workweeks of leave
11        required under  this  Article  may  be  provided  without
12        compensation.
13             (2) Substitution of paid leave.
14                  (A) In general. An eligible employee may elect,
15             or   an   employer  may  require  the  employee,  to
16             substitute any of the accrued paid  vacation  leave,
17             personal leave, or family  leave of the employee for
18             leave  provided  under subparagraph (A), (B), or (C)
19             of subsection (a)(1) for any  part  of  the  12-week
20             period of such leave under such subsection.
21                  (B)   Serious  health  condition.  An  eligible
22             employee may elect, or an employer may  require  the
23             employee,  to  substitute  any  of  the accrued paid
24             vacation leave, personal leave, or medical  or  sick
25             leave  of  the  employee  for  leave  provided under
26             subparagraph (C) or (D) of subsection (a)(1) for any
27             part of the 12-week period of such leave under  such
28             subsection,  except  that  nothing  in  this Article
29             shall require an employer to provide paid sick leave
30             or paid medical  leave in  any  situation  in  which
31             such  employer  would  not normally provide any such
32             paid leave.
33        (e) Foreseeable leave.
34             (1) Requirement of notice. In any case in which  the
                            -8-                LRB9011164WHmg
 1        necessity  for  leave  under  subparagraph  (A) or (B) of
 2        subsection (a)(1) is foreseeable  based  on  an  expected
 3        birth  or  placement,  the  employee  shall  provide  the
 4        employer  with  not less than 30 days' notice, before the
 5        date the leave is to begin, of the  employee's  intention
 6        to take leave under such subparagraph, except that if the
 7        date  of  the birth or placement requires  leave to begin
 8        in less than 30 days, the  employee  shall  provide  such
 9        notice as is practicable.
10             (2)  Duties  of  employee.  In any case in which the
11        necessity  for leave under subparagraph  (C)  or  (D)  of
12        subsection (a)(1) is foreseeable based on planned medical
13        treatment, the employee:
14                  (A)  shall make a reasonable effort to schedule
15             the treatment  so  as  not  to  disrupt  unduly  the
16             operations  of the employer, subject to the approval
17             of the health care provider of the employee  or  the
18             health  care  provider of the son, daughter, spouse,
19             or parent of the employee, as appropriate; and
20                  (B) shall provide the employer  with  not  less
21             than  30  days' notice, before the date the leave is
22             to begin, of the employee's intention to take  leave
23             under  such subparagraph, except that if the date of
24             the treatment requires leave to begin in  less  than
25             30  days,  the employee shall provide such notice as
26             is practicable.
27        (f) Spouses employed by the same employer. In any case in
28    which a husband and wife entitled to leave  under  subsection
29    (a)  are  employed by the same employer, the aggregate number
30    of workweeks of leave to which both may be  entitled  may  be
31    limited  to  12 workweeks during any 12-month period, if such
32    leave is taken:
33             (1) under subparagraph  (A)  or  (B)  of  subsection
34        (a)(1); or
                            -9-                LRB9011164WHmg
 1             (2) to care for a sick parent under subparagraph (C)
 2        of such subsection.
 3        Section 103. Certification.
 4        (a)  In  general.  An employer may require that a request
 5    for leave under subparagraph (C) or (D) of Section  102(a)(1)
 6    be  supported  by   a certification issued by the health care
 7    provider of the eligible employee or of  the  son,  daughter,
 8    spouse,  or  parent  of  the    employee, as appropriate. The
 9    employee shall provide, in a timely manner, a  copy  of  such
10    certification to the employer.
11        (b)   Sufficient  certification.  Certification  provided
12    under subsection (a) shall be sufficient if it states:
13             (1) the date on which the serious  health  condition
14        commenced;
15             (2) the probable duration of the condition;
16             (3)   the   appropriate  medical  facts  within  the
17        knowledge of  the  health  care  provider  regarding  the
18        condition;
19             (4)(A)   for   purposes   of   leave  under  Section
20        102(a)(1)(C), a statement that the eligible  employee  is
21        needed  to  care for the son, daughter, spouse, or parent
22        and an estimate of the amount of time that such  employee
23        is  needed  to  care  for  the  son, daughter, spouse, or
24        parent; and
25             (B)   for   purposes   of   leave   under    Section
26        102(a)(1)(D),  a statement that the employee is unable to
27        perform the functions of the position of the employee;
28             (5) in the case of  certification  for  intermittent
29        leave,  or leave on a reduced leave schedule, for planned
30        medical treatment, the dates on which such  treatment  is
31        expected to be given and the duration of such treatment;
32             (6)  in  the  case of certification for intermittent
33        leave, or  leave  on  a  reduced  leave  schedule,  under
                            -10-               LRB9011164WHmg
 1        Section   102(a)(1)(D),    a  statement  of  the  medical
 2        necessity for  the  intermittent  leave  or  leave  on  a
 3        reduced  leave schedule, and the expected duration of the
 4        intermittent leave or reduced leave schedule; and
 5             (7) in the case of  certification  for  intermittent
 6        leave,  or  leave  on  a  reduced  leave  schedule, under
 7        Section 102(a)(1)(C),  a statement  that  the  employee's
 8        intermittent  leave or leave on  a reduced leave schedule
 9        is necessary for the care of the son,  daughter,  parent,
10        or  spouse  who  has  a serious health condition, or will
11        assist in their recovery, and the expected  duration  and
12        schedule  of  the  intermittent  leave  or  reduced leave
13        schedule.
14        (c) Second opinion.
15             (1) In general. In any case in  which  the  employer
16        has  reason  to  doubt  the validity of the certification
17        provided   under   subsection   (a)   for   leave   under
18        subparagraph  (C)  or  (D)  of  Section  102(a)(1),   the
19        employer  may  require,  at  the expense of the employer,
20        that the eligible employee  obtain  the  opinion  of    a
21        second health care provider designated or approved by the
22        employer   concerning  any  information  certified  under
23        subsection (b) for such leave.
24             (2) Limitation. A health care provider designated or
25        approved under paragraph (1) shall not be employed  on  a
26        regular basis by the employer.
27        (d) Resolution of conflicting opinions.
28             (1)  In  general.  In  any  case in which the second
29        opinion described in  subsection  (c)  differs  from  the
30        opinion  in  the  original  certification  provided under
31        subsection (a), the employer may require, at the  expense
32        of  the employer, that the employee obtain the opinion of
33        a third  health  care  provider  designated  or  approved
34        jointly  by  the employer and the employee concerning the
                            -11-               LRB9011164WHmg
 1        information certified under subsection (b).
 2             (2) Finality. The opinion of the third  health  care
 3        provider   concerning  the  information  certified  under
 4        subsection (b) shall be considered to be final and  shall
 5        be binding on the employer and the employee.
 6        (e)  Subsequent recertification. The employer may require
 7    that the eligible employee obtain subsequent recertifications
 8    on a  reasonable basis.
 9        Section 104. Employment and benefits protection.
10        (a) Restoration to position.
11             (1) In general. Except  as  provided  in  subsection
12        (b),  any eligible employee who takes leave under Section
13        102 for the  intended  purpose  of  the  leave  shall  be
14        entitled, on return from such leave:
15                  (A)  to  be  restored  by  the  employer to the
16             position of employment held by the employee when the
17             leave commenced; or
18                  (B) to be restored to  an  equivalent  position
19             with  equivalent employment benefits, pay, and other
20             terms and conditions of employment.
21             (2) Loss of benefits.  The  taking  of  leave  under
22        Section   102  shall  not  result  in  the  loss  of  any
23        employment benefit accrued prior to the date on which the
24        leave commenced.
25             (3) Limitations. Nothing in this  Section  shall  be
26        construed  to entitle any restored employee to:
27                  (A)  the accrual of any seniority or employment
28             benefits during any period of leave; or
29                  (B)  any  right,  benefit,   or   position   of
30             employment   other   than  any  right,  benefit,  or
31             position to  which  the  employee  would  have  been
32             entitled had the employee not taken the leave.
33             (4)  Certification.  As  a  condition of restoration
                            -12-               LRB9011164WHmg
 1        under paragraph (1) for an employee who has  taken  leave
 2        under  Section  102(a)(1)(D),  the  employer  may  have a
 3        uniformly applied  practice or policy that requires  each
 4        such  employee  to  receive certification from the health
 5        care provider of the employee  that the employee is  able
 6        to  resume  work,  except that nothing  in this paragraph
 7        shall  supersede  a  valid  State  or  local  law  or   a
 8        collective  bargaining  agreement that governs the return
 9        to work of such employees.
10             (5) Construction. Nothing in this  subsection  shall
11        be  construed  to  prohibit an employer from requiring an
12        employee  on  leave   under   Section   102   to   report
13        periodically  to the employer on the status and intention
14        of the employee to return to work.
15        (b)  Exemption  concerning  certain  highly   compensated
16    employees.
17             (1)  Denial  of  restoration.  An  employer may deny
18        restoration under subsection (a) to any eligible employee
19        described in paragraph (2) if:
20                  (A)  such  denial  is  necessary   to   prevent
21             substantial  and  grievous  economic  injury  to the
22             operations of the employer;
23                  (B) the employer notifies the employee  of  the
24             intent  of  the employer to deny restoration on such
25             basis at the time the employer determines that  such
26             injury would occur; and
27                  (C)   in  any  case  in  which  the  leave  has
28             commenced, the employee  elects  not  to  return  to
29             employment after receiving such notice.
30             (2)   Affected   employees.   An  eligible  employee
31        described  in  paragraph  (1)  is  a  salaried   eligible
32        employee  who is among the highest paid 10 percent of the
33        employees employed by the employer within 75 miles of the
34        facility at which the employee is employed.
                            -13-               LRB9011164WHmg
 1        (c) Maintenance of health benefits.
 2             (1) Coverage. Except as provided in  paragraph  (2),
 3        during  any  period that an eligible employee takes leave
 4        under Section 102, the employer shall  maintain  coverage
 5        under  any  "group  health  plan"  (as defined in Section
 6        5000(b)(1) of the Internal Revenue Code of 1986) for  the
 7        duration  of  such  leave  at  the  level  and  under the
 8        conditions coverage  would  have  been  provided  if  the
 9        employee had continued in employment continuously for the
10        duration of such leave.
11             (2)  Failure  to return from leave. The employer may
12        recover    the  premium  that  the  employer   paid   for
13        maintaining  coverage  for  the employee under such group
14        health plan during  any  period  of  unpaid  leave  under
15        Section 102 if:
16                  (A)  the  employee  fails  to return from leave
17             under Section 102 after the period of leave to which
18             the employee is entitled has expired; and
19                  (B) the employee fails to return to work for  a
20             reason other than:
21                       (i) the continuation, recurrence, or onset
22                  of a serious health condition that entitles the
23                  employee to leave under subparagraph (C) or (D)
24                  of Section 102(a)(1); or
25                       (ii)   other   circumstances   beyond  the
26                  control of the employee.
27             (3) Certification.
28                  (A) Issuance. An employer may  require  that  a
29             claim  that  an employee is unable to return to work
30             because of the continuation, recurrence, or onset of
31             the serious health condition described in  paragraph
32             (2)(B)(i) be supported by:
33                       (i)  a  certification issued by the health
34                  care  provider of the son, daughter, spouse, or
                            -14-               LRB9011164WHmg
 1                  parent of the employee, as appropriate, in  the
 2                  case  of  an  employee unable to return to work
 3                  because of a  condition  specified  in  Section
 4                  102(a)(1)(C); or
 5                       (ii)  a certification issued by the health
 6                  care provider of the eligible employee, in  the
 7                  case  of  an  employee unable to return to work
 8                  because of a  condition  specified  in  Section
 9                  102(a)(1)(D).
10                  (B)  Copy.  The  employee  shall  provide, in a
11             timely manner, a copy of such certification  to  the
12             employer.
13                  (C) Sufficiency of certification.
14                       (i)  Leave due to serious health condition
15                  of  employee. The  certification  described  in
16                  subparagraph (A)(ii) shall be sufficient if the
17                  certification  states  that  a  serious  health
18                  condition  prevented  the  employee  from being
19                  able to perform the functions of the   position
20                  of  the  employee on the date that the leave of
21                  the employee expired.
22                       (ii) Leave due to serious health condition
23                  of family member. The  certification  described
24                  in  subparagraph  (A)(i) shall be sufficient if
25                  the certification states that the  employee  is
26                  needed  to  care for the son, daughter, spouse,
27                  or parent who has a serious health condition on
28                  the  date  that  the  leave  of  the   employee
29                  expired.
30        Section 105. Prohibited Acts.
31        (a) Interference with rights.
32             (1) Exercise of rights. It shall be unlawful for any
33        employer   to  interfere  with,  restrain,  or  deny  the
                            -15-               LRB9011164WHmg
 1        exercise  of  or  the  attempt  to  exercise,  any  right
 2        provided under this Article.
 3             (2) Discrimination. It shall  be  unlawful  for  any
 4        employer to discharge or in any other manner discriminate
 5        against  any  individual  for  opposing any practice made
 6        unlawful by this Article.
 7        (b) Interference with proceedings or inquiries. It  shall
 8    be  unlawful  for  any  person  to  discharge or in any other
 9    manner  discriminate  against  any  individual  because  such
10    individual:
11             (1) has filed  any  charge,  or  has  instituted  or
12        caused  to be instituted any proceeding, under or related
13        to this Article;
14             (2) has given, or is about to give, any  information
15        in  connection with any inquiry or proceeding relating to
16        any right provided under this Article; or
17             (3) has testified, or is about to  testify,  in  any
18        inquiry  or  proceeding  relating  to  any right provided
19        under this Article.
20        Section 106. Investigative authority.
21        (a) In general. To ensure compliance with the  provisions
22    of  this  Article,  or  any  rule  or order issued under this
23    Article, the Director shall have, subject to subsection  (c),
24    the authority to investigate complaints.
25        (b) Obligation to keep and preserve records. Any employer
26    shall   make,   keep,  and  preserve  records  pertaining  to
27    compliance with this Article in accordance with rules adopted
28    by the Director.
29        (c) Required submissions generally limited to  an  annual
30    basis.    The  Director shall not under the authority of this
31    Section require any employer or any plan, fund, or program to
32    submit to the Director any books or records  more  than  once
33    during   any   12-month   period,  unless  the  Director  has
                            -16-               LRB9011164WHmg
 1    reasonable cause to believe there may exist  a  violation  of
 2    this  Article  or  any  rule or order issued pursuant to this
 3    Article, or is investigating a charge   pursuant  to  Section
 4    107(b).
 5        (d)   Subpoena   powers.   For   the   purposes   of  any
 6    investigation provided for  in  this  Section,  the  Director
 7    shall have the authority to issue subpoenas.
 8        Section 107. Enforcement.
 9        (a) Civil action by employees.
10             (1) Liability. Any employer who violates Section 105
11        shall be liable to any eligible employee affected:
12                  (A) for damages equal to:
13                       (i) the amount of:
14                            (I)  any  wages,  salary,  employment
15                       benefits,  or other compensation denied or
16                       lost to such employee  by  reason  of  the
17                       violation; or
18                            (II)   in  a  case  in  which  wages,
19                       salary,  employment  benefits,  or   other
20                       compensation  have not been denied or lost
21                       to the  employee,    any  actual  monetary
22                       losses  sustained  by  the  employee  as a
23                       direct result of the  violation,  such  as
24                       the  cost  of providing care, up to  a sum
25                       equal to 12 weeks of wages or  salary  for
26                       the employee;
27                       (ii)  the interest on the amount described
28                  in  clause  (i)  calculated  at  the  rate   of
29                  interest  on  judgments  set  forth  in Section
30                  2-1303 of the Code of Civil Procedure; and
31                       (iii) an additional amount  as  liquidated
32                  damages    equal  to  the  sum  of  the  amount
33                  described   in  clause  (i)  and  the  interest
                            -17-               LRB9011164WHmg
 1                  described in clause (ii),  except  that  if  an
 2                  employer who has violated Section 105 proves to
 3                  the  satisfaction  of the court that the act or
 4                  omission which violated Section 105 was in good
 5                  faith and  that  the  employer  had  reasonable
 6                  grounds  for believing that the act or omission
 7                  was not a violation of Section 105, such  court
 8                  may, in the discretion of the court, reduce the
 9                  amount  of  the  liability  to  the  amount and
10                  interest determined under clauses (i) and (ii),
11                  respectively; and
12                  (B)  for  such  equitable  relief  as  may   be
13             appropriate,  including  employment,  reinstatement,
14             and promotion.
15             (2)  Right  of  action.  An  action  to  recover the
16        damages or equitable relief prescribed in  paragraph  (1)
17        may  be  maintained  against  any  employer  (including a
18        public agency) in the circuit court by any  one  or  more
19        employees for and in behalf of:
20                  (A) the employees; or
21                  (B) the employees and other employees similarly
22             situated.
23             (3)  Fees  and  costs.  The  court in such an action
24        shall,  in  addition  to  any  judgment  awarded  to  the
25        plaintiff, allow a reasonable attorney's fee,  reasonable
26        expert  witness fees, and other costs of the action to be
27        paid by the defendant.
28             (4) Limitations. The right provided by paragraph (2)
29        to bring an action by or on behalf of any employee  shall
30        terminate:
31                  (A)  on  the  filing  of  a  complaint  by  the
32             Director  in an action under subsection (d) in which
33             restraint is sought of  any  further  delay  in  the
34             payment  of the amount described in paragraph (1)(A)
                            -18-               LRB9011164WHmg
 1             to such employee by an employer   responsible  under
 2             paragraph (1) for the payment; or
 3                  (B)  on  the  filing  of  a  complaint  by  the
 4             Director  in an action under subsection (b) in which
 5             a recovery is sought  of the  damages  described  in
 6             paragraph (1)(A) owing to an eligible employee by an
 7             employer  liable  under  paragraph  (1),  unless the
 8             action described  in  subparagraph  (A)  or  (B)  is
 9             dismissed   without   prejudice  on  motion  of  the
10             Director.
11        (b) Action by the Director.
12             (1)  Administrative  action.  The   Director   shall
13        receive,  investigate,  and attempt to resolve complaints
14        of violations of Section 105.
15             (2) Civil action. The Director may bring  an  action
16        in the circuit court to recover the damages  described in
17        subsection (a)(1)(A).
18             (3)  Sums  recovered.  Any  sums  recovered  by  the
19        Director  pursuant  to  paragraph  (2) shall be held in a
20        special deposit account and shall be paid,  on  order  of
21        the  Director,  directly  to  each employee affected. Any
22        such sums not paid to an  employee because  of  inability
23        to  do  so  within a period of 3 years shall be deposited
24        into the General Revenue Fund.
25        (c) Limitation.
26             (1) In general. Except as provided in paragraph (2),
27        an  action may be brought under this  Section  not  later
28        than   2   years   after  the  date  of  the  last  event
29        constituting the alleged violation for which  the  action
30        is brought.
31             (2)  Willful  violation.  In the case of such action
32        brought for a willful  violation  of  Section  105,  such
33        action  may  be brought within 3 years of the date of the
34        last event constituting the alleged violation  for  which
                            -19-               LRB9011164WHmg
 1        such action is brought.
 2             (3)  Commencement.  In determining when an action is
 3        commenced by the Director  under  this  Section  for  the
 4        purposes of this subsection, it shall be considered to be
 5        commenced on the date when the complaint is filed.
 6        (d)  Action for injunction by Director. The circuit court
 7    shall have  jurisdiction,  for  cause  shown,  in  an  action
 8    brought by the Director:
 9             (1) to restrain violations of Section 105, including
10        the  restraint  of  any  withholding of payment of wages,
11        salary, employment benefits, or other compensation,  plus
12        interest,    found  by  the  court  to be due to eligible
13        employees; or
14             (2) to award such other equitable relief as  may  be
15        appropriate,  including  employment,  reinstatement,  and
16        promotion.
17        Section 108.  Special rules concerning employees of local
18    educational agencies.
19        (a) Application.
20             (1) In general. Except as otherwise provided in this
21        Section,  the  rights (including the rights under Section
22        104, which shall extend throughout the period of leave of
23        any  employee  under    this  Section),   remedies,   and
24        procedures under this Article shall apply to:
25                  (A)  any "local educational agency" (as defined
26             in Section 1471(12) of the Elementary and  Secondary
27             Education  Act  of 1965 (20 U.S.C. 2891(12))) and an
28             eligible employee of the agency; and
29                  (B) any private elementary or secondary  school
30             and an eligible employee of the school.
31             (2)   Definitions.  For  purposes of the application
32        described  in paragraph (1):
33                  (A)  Eligible  employee.  The  term   "eligible
                            -20-               LRB9011164WHmg
 1             employee" means an eligible employee of an agency or
 2             school described in paragraph (1).
 3                  (B)  Employer.  The  term  "employer"  means an
 4             agency or school described in paragraph (1).
 5        (b) Leave does not violate certain other federal laws.  A
 6    local   educational   agency  and  a  private  elementary  or
 7    secondary school shall not be in violation of the Individuals
 8    with Disabilities Education Act (20  U.S.C.  1400  et  seq.),
 9    Section  504  of  the  Rehabilitation  Act of 1973 (29 U.S.C.
10    794), or title VI of the  Civil Rights Act of 1964 (42 U.S.C.
11    2000d et seq.), solely as a result of an eligible employee of
12    such agency or school exercising the rights of such  employee
13    under this Article.
14        (c) Intermittent leave or leave on a reduced schedule for
15    instructional employees.
16             (1)  In  general.  Subject  to paragraph (2), in any
17        case in  which an eligible employee employed  principally
18        in  an  instructional  capacity  by  any such educational
19        agency or school requests leave under subparagraph (C) or
20        (D) of Section 102(a)(1) that  is  foreseeable  based  on
21        planned  medical   treatment and the employee would be on
22        leave for greater than  20 percent of the total number of
23        working days in the period during which the  leave  would
24        extend,  the  agency  or  school  may  require  that such
25        employee elect either:
26                  (A) to take leave for periods of  a  particular
27             duration,  not to exceed the duration of the planned
28             medical  treatment; or
29                  (B) to transfer  temporarily  to  an  available
30             alternative  position  offered  by  the employer for
31             which the employee is qualified, and that:
32                       (i) has equivalent pay and benefits; and
33                       (ii) better accommodates recurring periods
34                  of leave than the regular  employment  position
                            -21-               LRB9011164WHmg
 1                  of the employee.
 2             (2)   Application.   The   elections   described  in
 3        subparagraphs (A) and (B) of paragraph  (1)  shall  apply
 4        only  with  respect  to an eligible employee who complies
 5        with Section 102(e)(2).
 6        (d) Rules applicable to periods near the conclusion of an
 7    academic term. The following rules shall apply  with  respect
 8    to  periods  of leave near the conclusion of an academic term
 9    in the  case of any eligible employee employed principally in
10    an instructional capacity by any such educational  agency  or
11    school:
12             (1) Leave more than 5 weeks prior to end of term. If
13        the eligible employee begins leave under Section 102 more
14        than  5  weeks prior to the end of the academic term, the
15        agency or school may require  the  employee  to  continue
16        taking leave until the end of such term, if:
17                  (A)  the leave is of at least 3 weeks duration;
18             and
19                  (B) the return to employment would occur during
20             the  3-week period before the end of such term.
21             (2) Leave less than 5 weeks prior to end of term. If
22        the eligible employee  begins  leave  under  subparagraph
23        (A),  (B),  or (C) of Section 102(a)(1) during the period
24        that commences 5 weeks prior to the end of  the  academic
25        term,  the  agency  or school may require the employee to
26        continue taking leave until the end of such term, if:
27                  (A) the  leave  is  of  greater  than  2  weeks
28             duration; and
29                  (B) the return to employment would occur during
30             the  2-week period before the end of such term.
31             (3) Leave less than 3 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  3 weeks prior to the end of the academic
                            -22-               LRB9011164WHmg
 1        term and the duration of the  leave  is  greater  than  5
 2        working  days,  the  agency  or  school  may  require the
 3        employee to continue to take leave until the  end of such
 4        term.
 5        (e) Restoration to equivalent  employment  position.  For
 6    purposes     of  determinations  under  Section  104(a)(1)(B)
 7    (relating to the restoration of an eligible  employee  to  an
 8    equivalent  position),  in  the  case  of a local educational
 9    agency or a private  elementary  or  secondary  school,  such
10    determination  shall  be  made  on  the  basis of established
11    school board policies and practices, private school  policies
12    and practices, and collective bargaining agreements.
13        (f)  Reduction  of  the  amount  of liability. If a local
14    educational agency  or  a  private  elementary  or  secondary
15    school  that  has    violated  this  Article  proves  to  the
16    satisfaction  of  the  court  that    the  agency, school, or
17    department had reasonable  grounds  for  believing  that  the
18    underlying  act  or  omission  was  not  a violation  of this
19    Article, such court may, in  the  discretion  of  the  court,
20    reduce the amount of the liability provided for under Section
21    107(a)(1)(A)  to  the  amount  and  interest determined under
22    clauses (i) and (ii), respectively, of such Section.
23        Section 109. Notice.
24        (a) In general. Each employer shall post and keep posted,
25    in conspicuous places on the premises of the  employer  where
26    notices  to  employees  and  applicants  for  employment  are
27    customarily  posted,  a notice, to be prepared or approved by
28    the Director, setting forth excerpts from, or  summaries  of,
29    the  pertinent  provisions  of  this  Article and information
30    pertaining to the filing of a charge.
31        (b) Penalty. Any employer that  willfully  violates  this
32    Section   may be assessed a civil money penalty not to exceed
33    $100 for each separate offense.
                            -23-               LRB9011164WHmg
 1                         ARTICLE II. (BLANK)
 2                         ARTICLE III.(BLANK)
 3                ARTICLE IV. MISCELLANEOUS PROVISIONS
 4        Section 401. Effect on other laws.
 5        (a) Federal and State antidiscrimination laws. Nothing in
 6    this  Act shall be construed to modify or affect any  Federal
 7    or  State  law  prohibiting  discrimination  on  the basis of
 8    race,  religion,  color,  national  origin,  sex,   age,   or
 9    disability.
10        (b)  State  and  local laws. Nothing in this Act shall be
11    construed to supersede any provision of any  State  or  local
12    law that provides greater family or medical leave rights than
13    the rights established under this Act.
14        Section 402. Effect on existing employment benefits.
15        (a)  More  protective.  Nothing  in  this  Act  shall  be
16    construed to diminish the obligation of an employer to comply
17    with  any  collective  bargaining agreement or any employment
18    benefit program or  plan  that  provides  greater  family  or
19    medical leave rights to employees than the rights established
20    under this Act.
21        (b) Less protective. The rights established for employees
22    under  this  Act  shall  not  be diminished by any collective
23    bargaining agreement or any  employment  benefit  program  or
24    plan.
25        Section   403.   Encouragement  of  more  generous  leave
26    policies.  Nothing  in  this  Act  shall  be   construed   to
27    discourage   employers   from  adopting  or  retaining  leave
28    policies more generous than any policies that comply with the
29    requirements under this Act.
                            -24-               LRB9011164WHmg
 1        Section 404. Rules. The  Director  shall  prescribe  such
 2    rules  as  are necessary to carry out this Act not later than
 3    120 days after the effective date of of this Act.
 4        Section 404.1.  Applicability.
 5        (1)  In the case of a collective bargaining agreement  in
 6    effect  on  the  effective  date of this Act, Article I shall
 7    apply on the earlier of:
 8             (A) the date of the termination of  such  agreement;
 9        or
10             (B)  the  date  that  occurs  12  months  after  the
11        effective date of this Act.
12        (2)  Nothing  in this Act shall be construed to limit the
13    applicability of the federal Family and Medical Leave Act  of
14    1993  with  regard to employers and employees covered by that
15    Act.
16        Section 405. Effective date.   This Act shall take effect
17    6 months after  it becomes law.

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