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| [ Introduced ] | [ House Amendment 001 ] |
90_HB3477eng
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
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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
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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
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1 such employer during the previous 12-month period.
2 (B) Exclusions. The term "eligible employee" does
3 not include:
4 (i) any Federal officer or employee covered
5 under Subchapter V of Chapter 63 of Title 5, United
6 States Code; or
7 (ii) any employee of an employer who is
8 employed at a 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,
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1 or agency, any unit of local government, and any
2 school district.
3 (B) (Blank).
4 (5) Employment benefits. The term "employment benefits"
5 means all benefits provided or made available to employees by
6 an employer, including group life insurance, health
7 insurance, disability insurance, sick leave, annual leave,
8 educational benefits, and pensions, regardless of whether
9 such benefits are provided by a practice or written policy of
10 an employer or through an "employee benefit plan", as defined
11 in Section 3(3) of the Employee Retirement Income Security
12 Act of 1974 (29 U.S.C. 1002(3)).
13 (6) Health care provider. The term "health care provider"
14 means:
15 (A) a doctor of medicine or osteopathy who is
16 authorized to practice medicine or surgery (as
17 appropriate) by the State in which the doctor practices;
18 or
19 (B) any other person determined by the Director to
20 be capable of providing health care services.
21 (7) Parent. The term "parent" means the biological parent
22 of an employee or an individual who stood in loco parentis to
23 an employee when the employee was a son or daughter.
24 (8) Person. The term "person" has the same meaning given
25 such term in Section 3(a) of the Fair Labor Standards Act of
26 1938 (29 U.S.C. 203(a)).
27 (9) Reduced leave schedule. The term "reduced leave
28 schedule" means a leave schedule that reduces the usual
29 number of hours per workweek, or hours per workday, of an
30 employee.
31 (10) Director. The term "Director" means the Director of
32 Labor.
33 (11) Serious health condition. The term "serious health
34 condition" means an illness, injury, impairment, or physical
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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
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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
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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
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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
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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. For the purposes of this
11 Section, "health care provider" includes Christian Science
12 practitioners listed with The First Church of Christ,
13 Scientist, in Boston, Massachusetts. If an employee or family
14 member is receiving treatment from a Christian Science
15 practitioner, an employee may not object to any requirement
16 from an employer that the employee or family member submit to
17 examination (though not treatment) to obtain a second or
18 third certification from a health care provider other than a
19 Christian Science practitioner.
20 (b) Sufficient certification. Certification provided
21 under subsection (a) shall be sufficient if it 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
26 knowledge of the health care provider regarding the
27 condition;
28 (4)(A) for purposes of leave under Section
29 102(a)(1)(C), a statement that the eligible employee is
30 needed to care for the son, daughter, spouse, or parent
31 and an estimate of the amount of time that such employee
32 is needed to care for the son, daughter, spouse, or
33 parent; and
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1 (B) for purposes of leave under Section
2 102(a)(1)(D), a statement that the employee is unable to
3 perform the functions of the position of the employee;
4 (5) in the case of certification for intermittent
5 leave, or leave on a reduced leave schedule, for planned
6 medical treatment, the dates on which such treatment is
7 expected to be given and the duration of such treatment;
8 (6) in the case of certification for intermittent
9 leave, or leave on a reduced leave schedule, under
10 Section 102(a)(1)(D), a statement of the medical
11 necessity for the intermittent leave or leave on a
12 reduced leave schedule, and the expected duration of the
13 intermittent leave or reduced leave schedule; and
14 (7) in the case of certification for intermittent
15 leave, or leave on a reduced leave schedule, under
16 Section 102(a)(1)(C), a statement that the employee's
17 intermittent leave or leave on a reduced leave schedule
18 is necessary for the care of the son, daughter, parent,
19 or spouse who has a serious health condition, or will
20 assist in their recovery, and the expected duration and
21 schedule of the intermittent leave or reduced leave
22 schedule.
23 (c) Second opinion.
24 (1) In general. In any case in which the employer
25 has reason to doubt the validity of the certification
26 provided under subsection (a) for leave under
27 subparagraph (C) or (D) of Section 102(a)(1), the
28 employer may require, at the expense of the employer,
29 that the eligible employee obtain the opinion of a
30 second health care provider designated or approved by the
31 employer concerning any information certified under
32 subsection (b) for such leave.
33 (2) Limitation. A health care provider designated or
34 approved under paragraph (1) shall not be employed on a
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1 regular basis by the employer.
2 (d) Resolution of conflicting opinions.
3 (1) In general. In any case in which the second
4 opinion described in subsection (c) differs from the
5 opinion in the original certification provided under
6 subsection (a), the employer may require, at the expense
7 of the employer, that the employee obtain the opinion of
8 a third health care provider designated or approved
9 jointly by the employer and the employee concerning the
10 information certified under subsection (b).
11 (2) Finality. The opinion of the third health care
12 provider concerning the information certified under
13 subsection (b) shall be considered to be final and shall
14 be binding on the employer and the employee.
15 (e) Subsequent recertification. The employer may require
16 that the eligible employee obtain subsequent recertifications
17 on a reasonable basis.
18 Section 104. Employment and benefits protection.
19 (a) Restoration to position.
20 (1) In general. Except as provided in subsection
21 (b), any eligible employee who takes leave under Section
22 102 for the intended purpose of the leave shall be
23 entitled, on return from such leave:
24 (A) to be restored by the employer to the
25 position of employment held by the employee when the
26 leave commenced; or
27 (B) to be restored to an equivalent position
28 with equivalent employment benefits, pay, and other
29 terms and conditions of employment.
30 (2) Loss of benefits. The taking of leave under
31 Section 102 shall not result in the loss of any
32 employment benefit accrued prior to the date on which the
33 leave commenced.
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1 (3) Limitations. Nothing in this Section shall be
2 construed to entitle any restored employee to:
3 (A) the accrual of any seniority or employment
4 benefits during any period of leave; or
5 (B) any right, benefit, or position of
6 employment other than any right, benefit, or
7 position to which the employee would have been
8 entitled had the employee not taken the leave.
9 (4) Certification. As a condition of restoration
10 under paragraph (1) for an employee who has taken leave
11 under Section 102(a)(1)(D), the employer may have a
12 uniformly applied practice or policy that requires each
13 such employee to receive certification from the health
14 care provider of the employee that the employee is able
15 to resume work, except that nothing in this paragraph
16 shall supersede a valid State or local law or a
17 collective bargaining agreement that governs the return
18 to work of such employees.
19 (5) Construction. Nothing in this subsection shall
20 be construed to prohibit an employer from requiring an
21 employee on leave under Section 102 to report
22 periodically to the employer on the status and intention
23 of the employee to return to work.
24 (b) Exemption concerning certain highly compensated
25 employees.
26 (1) Denial of restoration. An employer may deny
27 restoration under subsection (a) to any eligible employee
28 described in paragraph (2) if:
29 (A) such denial is necessary to prevent
30 substantial and grievous economic injury to the
31 operations of the employer;
32 (B) the employer notifies the employee of the
33 intent of the employer to deny restoration on such
34 basis at the time the employer determines that such
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1 injury would occur; and
2 (C) in any case in which the leave has
3 commenced, the employee elects not to return to
4 employment after receiving such notice.
5 (2) Affected employees. An eligible employee
6 described in paragraph (1) is a salaried eligible
7 employee who is among the highest paid 10 percent of the
8 employees employed by the employer within 75 miles of the
9 facility at which the employee is employed.
10 (c) Maintenance of health benefits.
11 (1) Coverage. Except as provided in paragraph (2),
12 during any period that an eligible employee takes leave
13 under Section 102, the employer shall maintain coverage
14 under any "group health plan" (as defined in Section
15 5000(b)(1) of the Internal Revenue Code of 1986) for the
16 duration of such leave at the level and under the
17 conditions coverage would have been provided if the
18 employee had continued in employment continuously for the
19 duration of such leave.
20 (2) Failure to return from leave. The employer may
21 recover the premium that the employer paid for
22 maintaining coverage for the employee under such group
23 health plan during any period of unpaid leave under
24 Section 102 if:
25 (A) the employee fails to return from leave
26 under Section 102 after the period of leave to which
27 the employee is entitled has expired; and
28 (B) the employee fails to return to work for a
29 reason other than:
30 (i) the continuation, recurrence, or onset
31 of a serious health condition that entitles the
32 employee to leave under subparagraph (C) or (D)
33 of Section 102(a)(1); or
34 (ii) other circumstances beyond the
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1 control of the employee.
2 (3) Certification.
3 (A) Issuance. An employer may require that a
4 claim that an employee is unable to return to work
5 because of the continuation, recurrence, or onset of
6 the serious health condition described in paragraph
7 (2)(B)(i) be supported by:
8 (i) a certification issued by the health
9 care provider of the son, daughter, spouse, or
10 parent of the employee, as appropriate, in the
11 case of an employee unable to return to work
12 because of a condition specified in Section
13 102(a)(1)(C); or
14 (ii) a certification issued by the health
15 care provider of the eligible employee, in the
16 case of an employee unable to return to work
17 because of a condition specified in Section
18 102(a)(1)(D).
19 (B) Copy. The employee shall provide, in a
20 timely manner, a copy of such certification to the
21 employer.
22 (C) Sufficiency of certification.
23 (i) Leave due to serious health condition
24 of employee. The certification described in
25 subparagraph (A)(ii) shall be sufficient if the
26 certification states that a serious health
27 condition prevented the employee from being
28 able to perform the functions of the position
29 of the employee on the date that the leave of
30 the employee expired.
31 (ii) Leave due to serious health condition
32 of family member. The certification described
33 in subparagraph (A)(i) shall be sufficient if
34 the certification states that the employee is
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1 needed to care for the son, daughter, spouse,
2 or parent who has a serious health condition on
3 the date that the leave of the employee
4 expired.
5 Section 105. Prohibited Acts.
6 (a) Interference with rights.
7 (1) Exercise of rights. It shall be unlawful for any
8 employer to interfere with, restrain, or deny the
9 exercise of or the attempt to exercise, any right
10 provided under this Article.
11 (2) Discrimination. It shall be unlawful for any
12 employer to discharge or in any other manner discriminate
13 against any individual for opposing any practice made
14 unlawful by this Article.
15 (b) Interference with proceedings or inquiries. It shall
16 be unlawful for any person to discharge or in any other
17 manner discriminate against any individual because such
18 individual:
19 (1) has filed any charge, or has instituted or
20 caused to be instituted any proceeding, under or related
21 to this Article;
22 (2) has given, or is about to give, any information
23 in connection with any inquiry or proceeding relating to
24 any right provided under this Article; or
25 (3) has testified, or is about to testify, in any
26 inquiry or proceeding relating to any right provided
27 under this Article.
28 Section 106. Investigative authority.
29 (a) In general. To ensure compliance with the provisions
30 of this Article, or any rule or order issued under this
31 Article, the Director shall have, subject to subsection (c),
32 the authority to investigate complaints.
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1 (b) Obligation to keep and preserve records. Any employer
2 shall make, keep, and preserve records pertaining to
3 compliance with this Article in accordance with rules adopted
4 by the Director.
5 (c) Required submissions generally limited to an annual
6 basis. The Director shall not under the authority of this
7 Section require any employer or any plan, fund, or program to
8 submit to the Director any books or records more than once
9 during any 12-month period, unless the Director has
10 reasonable cause to believe there may exist a violation of
11 this Article or any rule or order issued pursuant to this
12 Article, or is investigating a charge pursuant to Section
13 107(b).
14 (d) Subpoena powers. For the purposes of any
15 investigation provided for in this Section, the Director
16 shall have the authority to issue subpoenas.
17 Section 107. Enforcement.
18 (a) Civil action by employees.
19 (1) Liability. Any employer who violates Section 105
20 shall be liable to any eligible employee affected:
21 (A) for damages equal to:
22 (i) the amount of:
23 (I) any wages, salary, employment
24 benefits, or other compensation denied or
25 lost to such employee by reason of the
26 violation; or
27 (II) in a case in which wages,
28 salary, employment benefits, or other
29 compensation have not been denied or lost
30 to the employee, any actual monetary
31 losses sustained by the employee as a
32 direct result of the violation, such as
33 the cost of providing care, up to a sum
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1 equal to 12 weeks of wages or salary for
2 the employee;
3 (ii) the interest on the amount described
4 in clause (i) calculated at the rate of
5 interest on judgments set forth in Section
6 2-1303 of the Code of Civil Procedure; and
7 (iii) an additional amount as liquidated
8 damages equal to the sum of the amount
9 described in clause (i) and the interest
10 described in clause (ii), except that if an
11 employer who has violated Section 105 proves to
12 the satisfaction of the court that the act or
13 omission which violated Section 105 was in good
14 faith and that the employer had reasonable
15 grounds for believing that the act or omission
16 was not a violation of Section 105, such court
17 may, in the discretion of the court, reduce the
18 amount of the liability to the amount and
19 interest determined under clauses (i) and (ii),
20 respectively; and
21 (B) for such equitable relief as may be
22 appropriate, including employment, reinstatement,
23 and promotion.
24 (2) Right of action. An action to recover the
25 damages or equitable relief prescribed in paragraph (1)
26 may be maintained against any employer (including a
27 public agency) in the circuit court by any one or more
28 employees for and in behalf of:
29 (A) the employees; or
30 (B) the employees and other employees similarly
31 situated.
32 (3) Fees and costs. The court in such an action
33 shall, in addition to any judgment awarded to the
34 plaintiff, allow a reasonable attorney's fee, reasonable
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1 expert witness fees, and other costs of the action to be
2 paid by the defendant.
3 (4) Limitations. The right provided by paragraph (2)
4 to bring an action by or on behalf of any employee shall
5 terminate:
6 (A) on the filing of a complaint by the
7 Director in an action under subsection (d) in which
8 restraint is sought of any further delay in the
9 payment of the amount described in paragraph (1)(A)
10 to such employee by an employer responsible under
11 paragraph (1) for the payment; or
12 (B) on the filing of a complaint by the
13 Director in an action under subsection (b) in which
14 a recovery is sought of the damages described in
15 paragraph (1)(A) owing to an eligible employee by an
16 employer liable under paragraph (1), unless the
17 action described in subparagraph (A) or (B) is
18 dismissed without prejudice on motion of the
19 Director.
20 (b) Action by the Director.
21 (1) Administrative action. The Director shall
22 receive, investigate, and attempt to resolve complaints
23 of violations of Section 105.
24 (2) Civil action. The Director may bring an action
25 in the circuit court to recover the damages described in
26 subsection (a)(1)(A).
27 (3) Sums recovered. Any sums recovered by the
28 Director pursuant to paragraph (2) shall be held in a
29 special deposit account and shall be paid, on order of
30 the Director, directly to each employee affected. Any
31 such sums not paid to an employee because of inability
32 to do so within a period of 3 years shall be deposited
33 into the General Revenue Fund.
34 (c) Limitation.
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1 (1) In general. Except as provided in paragraph (2),
2 an action may be brought under this Section not later
3 than 2 years after the date of the last event
4 constituting the alleged violation for which the action
5 is brought.
6 (2) Willful violation. In the case of such action
7 brought for a willful violation of Section 105, such
8 action may be brought within 3 years of the date of the
9 last event constituting the alleged violation for which
10 such action is brought.
11 (3) Commencement. In determining when an action is
12 commenced by the Director under this Section for the
13 purposes of this subsection, it shall be considered to be
14 commenced on the date when the complaint is filed.
15 (d) Action for injunction by Director. The circuit court
16 shall have jurisdiction, for cause shown, in an action
17 brought by the Director:
18 (1) to restrain violations of Section 105, including
19 the restraint of any withholding of payment of wages,
20 salary, employment benefits, or other compensation, plus
21 interest, found by the court to be due to eligible
22 employees; or
23 (2) to award such other equitable relief as may be
24 appropriate, including employment, reinstatement, and
25 promotion.
26 Section 108. Special rules concerning employees of local
27 educational agencies.
28 (a) Application.
29 (1) In general. Except as otherwise provided in this
30 Section, the rights (including the rights under Section
31 104, which shall extend throughout the period of leave of
32 any employee under this Section), remedies, and
33 procedures under this Article shall apply to:
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1 (A) any "local educational agency" (as defined
2 in Section 1471(12) of the Elementary and Secondary
3 Education Act of 1965 (20 U.S.C. 2891(12))) and an
4 eligible employee of the agency; and
5 (B) any private elementary or secondary school
6 and an eligible employee of the school.
7 (2) Definitions. For purposes of the application
8 described in paragraph (1):
9 (A) Eligible employee. The term "eligible
10 employee" means an eligible employee of an agency or
11 school described in paragraph (1).
12 (B) Employer. The term "employer" means an
13 agency or school described in paragraph (1).
14 (b) Leave does not violate certain other federal laws. A
15 local educational agency and a private elementary or
16 secondary school shall not be in violation of the Individuals
17 with Disabilities Education Act (20 U.S.C. 1400 et seq.),
18 Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
19 794), or title VI of the Civil Rights Act of 1964 (42 U.S.C.
20 2000d et seq.), solely as a result of an eligible employee of
21 such agency or school exercising the rights of such employee
22 under this Article.
23 (c) Intermittent leave or leave on a reduced schedule for
24 instructional employees.
25 (1) In general. Subject to paragraph (2), in any
26 case in which an eligible employee employed principally
27 in an instructional capacity by any such educational
28 agency or school requests leave under subparagraph (C) or
29 (D) of Section 102(a)(1) that is foreseeable based on
30 planned medical treatment and the employee would be on
31 leave for greater than 20 percent of the total number of
32 working days in the period during which the leave would
33 extend, the agency or school may require that such
34 employee elect either:
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1 (A) to take leave for periods of a particular
2 duration, not to exceed the duration of the planned
3 medical treatment; or
4 (B) to transfer temporarily to an available
5 alternative position offered by the employer for
6 which the employee is qualified, and that:
7 (i) has equivalent pay and benefits; and
8 (ii) better accommodates recurring periods
9 of leave than the regular employment position
10 of the employee.
11 (2) Application. The elections described in
12 subparagraphs (A) and (B) of paragraph (1) shall apply
13 only with respect to an eligible employee who complies
14 with Section 102(e)(2).
15 (d) Rules applicable to periods near the conclusion of an
16 academic term. The following rules shall apply with respect
17 to periods of leave near the conclusion of an academic term
18 in the case of any eligible employee employed principally in
19 an instructional capacity by any such educational agency or
20 school:
21 (1) Leave more than 5 weeks prior to end of term. If
22 the eligible employee begins leave under Section 102 more
23 than 5 weeks prior to the end of the academic term, the
24 agency or school may require the employee to continue
25 taking leave until the end of such term, if:
26 (A) the leave is of at least 3 weeks duration;
27 and
28 (B) the return to employment would occur during
29 the 3-week period before the end of such term.
30 (2) Leave less than 5 weeks prior to end of term. If
31 the eligible employee begins leave under subparagraph
32 (A), (B), or (C) of Section 102(a)(1) during the period
33 that commences 5 weeks prior to the end of the academic
34 term, the agency or school may require the employee to
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1 continue taking leave until the end of such term, if:
2 (A) the leave is of greater than 2 weeks
3 duration; and
4 (B) the return to employment would occur during
5 the 2-week period before the end of such term.
6 (3) Leave less than 3 weeks prior to end of term. If
7 the eligible employee begins leave under subparagraph
8 (A), (B), or (C) of Section 102(a)(1) during the period
9 that commences 3 weeks prior to the end of the academic
10 term and the duration of the leave is greater than 5
11 working days, the agency or school may require the
12 employee to continue to take leave until the end of such
13 term.
14 (e) Restoration to equivalent employment position. For
15 purposes of determinations under Section 104(a)(1)(B)
16 (relating to the restoration of an eligible employee to an
17 equivalent position), in the case of a local educational
18 agency or a private elementary or secondary school, such
19 determination shall be made on the basis of established
20 school board policies and practices, private school policies
21 and practices, and collective bargaining agreements.
22 (f) Reduction of the amount of liability. If a local
23 educational agency or a private elementary or secondary
24 school that has violated this Article proves to the
25 satisfaction of the court that the agency, school, or
26 department had reasonable grounds for believing that the
27 underlying act or omission was not a violation of this
28 Article, such court may, in the discretion of the court,
29 reduce the amount of the liability provided for under Section
30 107(a)(1)(A) to the amount and interest determined under
31 clauses (i) and (ii), respectively, of such Section.
32 Section 109. Notice.
33 (a) In general. Each employer shall post and keep posted,
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1 in conspicuous places on the premises of the employer where
2 notices to employees and applicants for employment are
3 customarily posted, a notice, to be prepared or approved by
4 the Director, setting forth excerpts from, or summaries of,
5 the pertinent provisions of this Article and information
6 pertaining to the filing of a charge.
7 (b) Penalty. Any employer that willfully violates this
8 Section may be assessed a civil money penalty not to exceed
9 $100 for each separate offense.
10 ARTICLE II. (BLANK)
11 ARTICLE III.(BLANK)
12 ARTICLE IV. MISCELLANEOUS PROVISIONS
13 Section 401. Effect on other laws.
14 (a) Federal and State antidiscrimination laws. Nothing in
15 this Act shall be construed to modify or affect any Federal
16 or State law prohibiting discrimination on the basis of
17 race, religion, color, national origin, sex, age, or
18 disability.
19 (b) State and local laws. Nothing in this Act shall be
20 construed to supersede any provision of any State or local
21 law that provides greater family or medical leave rights than
22 the rights established under this Act.
23 Section 402. Effect on existing employment benefits.
24 (a) More protective. Nothing in this Act shall be
25 construed to diminish the obligation of an employer to comply
26 with any collective bargaining agreement or any employment
27 benefit program or plan that provides greater family or
28 medical leave rights to employees than the rights established
29 under this Act.
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1 (b) Less protective. The rights established for employees
2 under this Act shall not be diminished by any collective
3 bargaining agreement or any employment benefit program or
4 plan.
5 Section 403. Encouragement of more generous leave
6 policies. Nothing in this Act shall be construed to
7 discourage employers from adopting or retaining leave
8 policies more generous than any policies that comply with the
9 requirements under this Act.
10 Section 404. Rules. The Director shall prescribe such
11 rules as are necessary to carry out this Act not later than
12 120 days after the effective date of this Act.
13 Section 404.1. Applicability.
14 (1) In the case of a collective bargaining agreement in
15 effect on the effective date of this Act, Article I shall
16 apply on the earlier of:
17 (A) the date of the termination of such agreement;
18 or
19 (B) the date that occurs 12 months after the
20 effective date of this Act.
21 (2) Nothing in this Act shall be construed to limit the
22 applicability of the federal Family and Medical Leave Act of
23 1993 with regard to employers and employees covered by that
24 Act.
25 Section 405. Effective date. This Act shall take effect
26 6 months after it becomes law.