By: Truan S.B. No. 3 73R1078 PB-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to family and medical leave for certain employees; 1-3 providing a civil penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. DEFINITIONS. In this Act: 1-6 (1) "Child" means a biological child, adopted or 1-7 foster child, stepchild, legal ward, or child of a person standing 1-8 in loco parentis who is: 1-9 (A) under 18 years of age; or 1-10 (B) 18 years of age or older and incapable of 1-11 self-care because of a physical or mental disability. 1-12 (2) "Commission" means the Texas Employment 1-13 Commission. 1-14 (3) "Employee" means an individual who performs 1-15 services for an employer for compensation. The term does not 1-16 include an independent contractor. 1-17 (4) "Employer" means a person who employs employees. 1-18 (5) "Employment benefits" means all benefits provided 1-19 by or made available to employees by an employer. The term 1-20 includes group life insurance, health insurance, disability 1-21 insurance, sick leave, annual leave, educational benefits, and 1-22 pensions, whether the benefits are provided by a practice or 1-23 written policy of an employer or through an employee benefit plan. 1-24 (6) "Employee benefit plan" has the meaning assigned 2-1 by Section 3(3), Employee Retirement Income Security Act of 1974 2-2 (29 U.S.C. Sec. 1002(3)). 2-3 (7) "Health care provider" means: 2-4 (A) a licensed individual who provides or 2-5 renders health care; or 2-6 (B) an unlicensed individual who provides or 2-7 renders health care under the direction or supervision of a 2-8 physician. 2-9 (8) "Parent" means: 2-10 (A) the biological parent of an employee; or 2-11 (B) an individual who stood in loco parentis to 2-12 an employee when the employee was a child. 2-13 (9) "Person" means an individual, corporation, 2-14 organization, business trust, estate, trust, partnership, 2-15 association, or any other public or private legal entity. The term 2-16 includes this state and a political subdivision of this state. 2-17 (10) "Reduced leave schedule" means leave that reduces 2-18 the usual number of hours worked per workweek, or hours per 2-19 workday, of an employee. 2-20 (11) "Serious health condition" means an illness, 2-21 injury, impairment, or physical or mental condition that requires: 2-22 (A) inpatient care in a hospital, hospice, or 2-23 residential medical care facility; or 2-24 (B) continuing treatment by a health care 2-25 provider. 2-26 SECTION 2. APPLICATION OF ACT. This Act applies to each 2-27 employer who employs more than 50 employees in this state. 3-1 SECTION 3. EMPLOYEE ELIGIBILITY; EXEMPTION. (a) Except as 3-2 provided by Subsection (b) of this section, an employee is eligible 3-3 for leave under this Act if: 3-4 (1) the employee has been employed for at least 12 3-5 months by the employer from whom leave is requested under Section 4 3-6 of this Act; and 3-7 (2) the employee has performed at least 1,250 hours of 3-8 service for that employer during the 12 months preceding the 3-9 request for leave. 3-10 (b) To determine whether an employee meets the hours of 3-11 service requirement imposed under Subsection (a) of this section, 3-12 the commission shall apply the standards adopted under Section 7, 3-13 Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 207). 3-14 (c) An employer is not required under this Act to grant 3-15 leave under Section 4 of this Act to a salaried employee whose 3-16 compensation from the employer is computed to be in the highest 10 3-17 percent of compensation paid to the employees employed by that 3-18 employer within 75 miles of the facility at which the employee is 3-19 employed. 3-20 SECTION 4. FAMILY AND MEDICAL LEAVE. (a) Except as 3-21 provided by Section 9 of this Act, an eligible employee is entitled 3-22 to a total of 12 workweeks of leave during any 12-month period 3-23 because of one or more of the following: 3-24 (1) the birth of a child of the employee if the leave 3-25 is required to care for that child; 3-26 (2) the placement of a child with the employee for 3-27 adoption or foster care; 4-1 (3) to care for the spouse, child, or parent of the 4-2 employee, if the spouse, child, or parent has a serious health 4-3 condition; or 4-4 (4) a serious health condition that makes the employee 4-5 unable to perform the functions of the position of employment of 4-6 the employee. 4-7 (b) Entitlement to leave under Subsection (a) of this 4-8 section for a birth or placement of a child expires on the first 4-9 anniversary of the date of the birth or placement. 4-10 (c) An employee may not take leave under Subsection (a)(1) 4-11 or (a)(2) of this section intermittently unless the employee and 4-12 the employer of the employee agree in writing to that leave. An 4-13 employee may take leave under Subsection (a)(3) or (a)(4) of this 4-14 section intermittently when that leave is medically necessary. 4-15 (d) If an employee requests intermittent leave under 4-16 Subsection (a)(3) or (a)(4) of this section that is foreseeable 4-17 because of planned medical treatment, the employer may require the 4-18 employee to transfer temporarily to an available alternative 4-19 position offered by the employer for which the employee is 4-20 qualified and that: 4-21 (1) has equivalent pay and benefits; and 4-22 (2) better accommodates recurring periods of leave 4-23 than the regular employment position of the employee. 4-24 (e) On the written agreement of the employer and the 4-25 employee, an employee may take leave under Subsection (a) of this 4-26 section on a reduced leave schedule. Work performed by an employee 4-27 on a reduced leave schedule does not reduce the total amount of 5-1 leave to which the employee is entitled under Subsection (a) of 5-2 this section. 5-3 (f) Each employer shall post in conspicuous places on the 5-4 premises of the employer where notices to employees and applicants 5-5 for employment are customarily posted, a notice, prepared or 5-6 approved by the commission, setting forth the pertinent provisions 5-7 of this Act and information relating to the enforcement of this 5-8 Act. An employer who wilfully violates this subsection is liable 5-9 for a civil penalty not to exceed $100 for each violation. 5-10 SECTION 5. UNPAID LEAVE PERMITTED. (a) Except as provided 5-11 by Subsection (b) of this section, leave granted under Section 4 of 5-12 this Act may consist of unpaid leave. 5-13 (b) If an employer provides paid leave for fewer than 12 5-14 workweeks, any additional weeks of leave necessary to comply with 5-15 the 12 workweeks of leave required under this Act may be provided 5-16 by the employer without compensation. 5-17 SECTION 6. SUBSTITUTION OF PAID LEAVE. (a) An eligible 5-18 employee may elect, or an employer may require an employee, to 5-19 substitute accrued paid vacation leave, personal leave, or other 5-20 leave for leave provided under Section 4(a)(1), (2), or (3) of this 5-21 Act for any part of the 12 weeks of leave required under Section 4 5-22 of this Act. 5-23 (b) An eligible employee may elect, or an employer may 5-24 require an employee, to substitute accrued paid vacation leave, 5-25 personal leave, or medical or sick leave for leave provided under 5-26 Section 4(a)(3) or (4) of this Act for any part of the 12 weeks of 5-27 leave required under Section 4 of this Act. However, this Act does 6-1 not require an employer to provide paid sick leave or paid medical 6-2 leave in any situation in which that employer would not normally 6-3 provide paid leave. 6-4 SECTION 7. FORESEEABILITY OF LEAVE; NOTICE. (a) If the 6-5 necessity for leave under Section 4(a)(1) or (2) of this Act is 6-6 foreseeable because of an expected birth or adoption, the affected 6-7 employee shall, at least 30 days before the date the leave is to 6-8 begin, notify the employer in writing of the employee's intention 6-9 to take the leave. If the date of the birth or adoption requires 6-10 that the leave begin in less than 30 days, the employee shall 6-11 provide notice to the employer as is practicable. 6-12 (b) If the necessity for leave under Section 4(a)(3) or (4) 6-13 of this Act is foreseeable because of planned medical treatment, 6-14 the employee shall: 6-15 (1) make a reasonable effort to schedule the treatment 6-16 to avoid disrupting unduly the operations of the employer, subject 6-17 to the approval of the health care provider of the employee or of 6-18 the child, spouse, or parent of the employee, as applicable; and 6-19 (2) at least 30 days before the date the leave is to 6-20 begin, notify the employer in writing of the employee's intention 6-21 to take the leave; provided that if the date of the treatment 6-22 requires that the leave begin in less than 30 days, the employee 6-23 shall provide notice to the employer as is practicable. 6-24 SECTION 8. SPOUSES EMPLOYED BY SAME EMPLOYER. If a husband 6-25 and wife entitled to leave under Section 4 of this Act are employed 6-26 by the same employer, the aggregate number of workweeks of leave to 6-27 which both may be entitled may be limited to 12 workweeks during 7-1 any 12-month period, if the leave is taken: 7-2 (1) under Section 4(a)(1) or (2) of this Act; or 7-3 (2) to care for a sick parent under Section 4(a)(3) of 7-4 this Act. 7-5 SECTION 9. CERTIFICATION. (a) An employer may require that 7-6 a request for leave under Section 4(a)(3) or (4) of this Act be 7-7 certified by the health care provider of the eligible employee or 7-8 of the child, spouse, or parent of the employee, as appropriate. 7-9 The employee shall provide, in a timely manner, a copy of the 7-10 certification to the employer. 7-11 (b) Certification provided under Subsection (a) of this 7-12 section is sufficient if it states: 7-13 (1) the date on which the serious health condition 7-14 began; 7-15 (2) the probable duration of the condition; 7-16 (3) the appropriate medical facts within the knowledge 7-17 of the health care provider regarding the condition; 7-18 (4) for purposes of leave under Section 4(a)(3) of 7-19 this Act, a statement that the eligible employee is needed to care 7-20 for the child, spouse, or parent and an estimate of the amount of 7-21 time that the employee is needed to care for the child, spouse, or 7-22 parent; 7-23 (5) for purposes of leave under Section 4(a)(4) of 7-24 this Act, a statement that the employee is unable to perform the 7-25 functions of the position of employment; and 7-26 (6) for purposes of intermittent leave for planned 7-27 medical treatment, the dates on which the treatment is expected to 8-1 be given and the duration of the treatment. 8-2 (c) If the employer has reason to doubt the validity of the 8-3 certification provided under Subsection (a) of this section for 8-4 leave under Section 4(a)(3) or (4) of this Act, the employer may 8-5 require, at the expense of the employer, that the eligible employee 8-6 obtain the opinion of a second health care provider designated or 8-7 approved by the employer concerning any information certified under 8-8 Subsection (b) of this section. A health care provider designated 8-9 or approved under this subsection may not be employed on a regular 8-10 basis by the employer. 8-11 (d) If a second opinion obtained under Subsection (c) of 8-12 this section differs from the opinion in the original certification 8-13 provided under Subsection (a) of this section, the employer may 8-14 require, at the expense of the employer, that the employee obtain 8-15 the opinion of a third health care provider designated or approved 8-16 jointly by the employer and the employee concerning the information 8-17 certified under Subsection (b) of this section. The opinion of the 8-18 third health care provider is final and binding on the employer and 8-19 the employee. 8-20 (e) The employer may require that the eligible employee 8-21 obtain subsequent recertifications on a reasonable basis. 8-22 SECTION 10. EMPLOYMENT AND BENEFITS PROTECTION. (a) An 8-23 eligible employee who takes leave under Section 4 of this Act for 8-24 the intended purpose of the leave is entitled, on return from the 8-25 leave, to reinstatement in the former position of employment or an 8-26 equivalent position of employment with equivalent employment 8-27 benefits, pay, and other terms and conditions of employment. 9-1 (b) Leave taken under Section 4 of this Act may not result 9-2 in the loss of any employment benefit accrued before the date on 9-3 which the leave began. 9-4 (c) This section does not entitle an employee who is 9-5 reinstated in employment to: 9-6 (1) the accrual of seniority or other employment 9-7 benefits during any period of leave; or 9-8 (2) any right, benefit, or position of employment 9-9 other than any right, benefit, or position to which the employee 9-10 would have been entitled had the employee not taken the leave. 9-11 (d) As a condition of eligibility to return to employment 9-12 under Subsection (a) of this section, an employer may adopt a 9-13 uniformly applied practice or policy that requires an employee to 9-14 receive certification from a health care provider that the employee 9-15 is able to resume work. This subsection does not supersede a 9-16 statute of this state, an order or ordinance of a political 9-17 subdivision of this state, or a collective bargaining agreement 9-18 that governs the return to work of an employee taking leave under 9-19 Section 4(a)(4) of this Act. 9-20 (e) This section does not prohibit an employer from 9-21 requiring an employee on leave under Section 4 of this Act to 9-22 report periodically to the employer on the status and intention of 9-23 the employee to return to work. 9-24 SECTION 11. MAINTENANCE OF HEALTH INSURANCE BENEFITS. (a) 9-25 Except as provided by Subsection (b) of this section, during any 9-26 period that an eligible employee takes leave under Section 4 of 9-27 this Act, the employer shall maintain insurance coverage for that 10-1 employee under any applicable group health plan for the duration of 10-2 the leave at the level and under the conditions the coverage would 10-3 have been provided if the employee had continued in employment 10-4 continuously from the date on which the employee began the leave 10-5 until the date on which the employee returned to employment under 10-6 Section 10 of this Act. 10-7 (b) The employer may recover the premium that the employer 10-8 paid to maintain insurance coverage for the employee under the 10-9 group health plan during any period of unpaid leave taken under 10-10 Section 4 of this Act if the employee fails to return to work: 10-11 (1) after the period of leave to which the employee is 10-12 entitled has expired; and 10-13 (2) for a reason other than: 10-14 (A) the continuation, recurrence, or onset of a 10-15 serious health condition that entitles the employee to leave under 10-16 Section 4(a)(3) or (4) of this Act; or 10-17 (B) other circumstances beyond the control of 10-18 the employee. 10-19 (c) An employer may require that a claim that an employee is 10-20 unable to return to work because of the continuation, recurrence, 10-21 or onset of a serious health condition be certified by: 10-22 (1) the health care provider of the eligible employee, 10-23 if the employee is unable to return to work because of a condition 10-24 specified under Section 4(a)(4) of this Act; or 10-25 (2) the health care provider of the child, spouse, or 10-26 parent of the employee if the employee is unable to return to work 10-27 because of a condition specified under Section 4(a)(3) of this Act. 11-1 (d) The employee shall provide, in a timely manner, a copy 11-2 of the certification to the employer. 11-3 (e) Certification required under Subsection (c)(1) of this 11-4 section is sufficient if the certification states that a serious 11-5 health condition made the employee unable to perform the functions 11-6 of the position of employment on the date that the leave expired. 11-7 Certification required under Subsection (c)(2) of this section is 11-8 sufficient if the certification states that the employee is needed 11-9 to care for the child, spouse, or parent because of the serious 11-10 health condition in effect on the date that the leave expired. 11-11 (f) For the purposes of this section, "group health plan" 11-12 has the meaning assigned by Section 5000(b)(1), Internal Revenue 11-13 Code of 1986 (26 U.S.C. Sec. 5000(b)(1)). 11-14 SECTION 12. APPLICATION TO EMPLOYEES OF CERTAIN EDUCATIONAL 11-15 INSTITUTIONS. (a) Except as otherwise provided by this section, 11-16 the rights, remedies, and procedures under this Act apply to the 11-17 employees of a public or private elementary or secondary school or 11-18 school district. 11-19 (b) If an eligible employee employed principally in an 11-20 instructional capacity by a school requests leave under Section 11-21 4(a)(3) or (4) of this Act that is foreseeable because of planned 11-22 medical treatment and that leave would exceed 20 percent of the 11-23 total number of working days in the applicable academic period, the 11-24 school may require that the employee elect to: 11-25 (1) take the leave in periods of a particular 11-26 duration, not to exceed the duration of the planned medical 11-27 treatment; or 12-1 (2) transfer temporarily to an available alternative 12-2 position offered by the employer for which the employee is 12-3 qualified and that: 12-4 (A) has equivalent pay and benefits; and 12-5 (B) better accommodates recurring periods of 12-6 leave than the regular employment position of the employee. 12-7 (c) An employee who makes an election under Subsection (b) 12-8 of this section must comply with Section 7(b) of this Act. 12-9 (d) This subsection applies to periods of leave requested 12-10 near the conclusion of an academic term in the case of an eligible 12-11 employee employed principally in an instructional capacity by a 12-12 school. If the eligible employee begins leave under Section 4 of 12-13 this Act more than five weeks before the end of the academic term, 12-14 the school may require the employee to continue taking leave until 12-15 the end of that term if the leave lasts at least three weeks and 12-16 the return to employment would occur during the last three weeks of 12-17 the term. If the eligible employee begins leave under Section 12-18 4(a)(1), (2), or (3) of this Act during the period that begins five 12-19 weeks before the end of the academic term, the school may require 12-20 the employee to continue taking leave until the end of that term if 12-21 the leave is longer than two weeks and the return to employment 12-22 would occur during the last two weeks of the term. If the 12-23 eligible employee begins leave under Section 4(a)(1), (2), or (3) 12-24 of this Act during the three weeks before the end of the academic 12-25 term and the leave lasts longer than five working days, the school 12-26 may require the employee to continue to take leave until the end of 12-27 the term. 13-1 (e) The determination required under Section 10(a) of this 13-2 Act as to placement in an equivalent position of employment shall 13-3 be made on the basis of established public school district policies 13-4 and practices, private school policies and practices, and any 13-5 applicable collective bargaining agreements. 13-6 SECTION 13. COMMISSION POWERS AND DUTIES. (a) The 13-7 commission shall adopt rules as necessary to implement this Act. 13-8 (b) To ensure compliance with the provisions of this Act or 13-9 any rule adopted under this Act, the commission may conduct 13-10 investigations of employers subject to this Act. Each employer 13-11 subject to this Act shall maintain records in accordance with rules 13-12 adopted by the commission. 13-13 (c) The commission may not require an employer to submit 13-14 under this section books, records, or other information more 13-15 frequently than annually, unless the commission: 13-16 (1) has reasonable cause to believe that the affected 13-17 employer has violated this Act or a rule adopted under this Act; or 13-18 (2) is investigating a charge under Section 15 of this 13-19 Act. 13-20 (d) For the purposes of any investigation conducted under 13-21 this section, the commission may exercise the subpoena authority 13-22 granted under Section 11, Texas Unemployment Compensation Act 13-23 (Article 5221b-9, Vernon's Texas Civil Statutes). 13-24 SECTION 14. PROHIBITED ACTS. (a) An employer may not 13-25 interfere with, restrain, or deny the exercise of or the attempt to 13-26 exercise any right provided under this Act. 13-27 (b) An employer may not discharge or otherwise discriminate 14-1 against any individual for opposing a practice made unlawful by 14-2 this Act. 14-3 (c) A person may not discharge or otherwise discriminate 14-4 against an individual because that individual has: 14-5 (1) filed a charge, or instituted or caused to be 14-6 instituted a proceeding, under or related to this Act; 14-7 (2) given, or is about to give, any information in 14-8 connection with an inquiry or proceeding relating to a right 14-9 provided under this Act; or 14-10 (3) testified, or is about to testify, in an inquiry 14-11 or proceeding relating to a right provided under this Act. 14-12 SECTION 15. ENFORCEMENT. (a) An employer who violates 14-13 Section 14 of this Act is liable to an affected eligible employee 14-14 for damages equal to the amount of: 14-15 (1) any wages, salary, employment benefits, or other 14-16 compensation denied or lost to the employee by reason of the 14-17 violation, or, if wages, salary, employment benefits, or other 14-18 compensation have not been denied or lost to the employee, any 14-19 actual monetary losses sustained by the employee as a direct result 14-20 of the violation, including the cost of providing necessary care, 14-21 not to exceed an amount equal to the employee's wages or salary for 14-22 12 weeks; 14-23 (2) interest on the amount determined under 14-24 Subdivision (1) of this subsection, computed at the prevailing rate 14-25 of interest on judgments; and 14-26 (3) an additional amount as liquidated damages equal 14-27 to the sum of the amount determined under Subdivision (1) of this 15-1 subsection and the interest determined under Subdivision (2) of 15-2 this subsection, provided that if an employer who has violated 15-3 Section 14 of this Act proves to the satisfaction of the court that 15-4 the act or omission that violated Section 14 of this Act was in 15-5 good faith and that the employer had reasonable grounds for 15-6 believing that the act or omission was not a violation, the court 15-7 may reduce the amount of damages to the amount determined under 15-8 Subdivisions (1) and (2) of this subsection. 15-9 (b) The employer is also liable for equitable relief as 15-10 appropriate, including employment, reinstatement, and promotion. 15-11 (c) An action to recover damages or equitable relief under 15-12 this section may be maintained in a court of competent jurisdiction 15-13 by any one or more employees for and in behalf of those employees 15-14 or those employees and other employees similarly situated. 15-15 (d) In addition to any judgment awarded to the plaintiff, 15-16 the court may require the defendant to pay reasonable attorney's 15-17 fees, reasonable expert witness fees, and other costs. 15-18 (e) Unless the action is dismissed without prejudice on 15-19 motion of the commission, the right to bring an action under this 15-20 section terminates on: 15-21 (1) the filing of a complaint by the commission in an 15-22 action under Subsection (i) of this section in which: 15-23 (A) restraint is sought of any further delay in 15-24 the payment of the damages described in Subsection (a) of this 15-25 section; or 15-26 (B) equitable relief is sought as a result of 15-27 alleged violations of Section 14 of this Act; or 16-1 (2) the filing of a complaint by the commission in an 16-2 action under Subsection (f) of this section in which a recovery is 16-3 sought of the damages described in Subsection (a) of this section. 16-4 (f) The commission shall receive, investigate, and attempt 16-5 to resolve complaints of violations under Section 14 of this Act in 16-6 the same manner that the commission receives, investigates, and 16-7 attempts to resolve complaints of violations of Article 5155, 16-8 Revised Statutes. 16-9 (g) The commission may bring an action in a court of 16-10 competent jurisdiction to recover on behalf of an eligible employee 16-11 the damages described in Subsection (a) of this section. Any 16-12 amount recovered by the commission on behalf of an employee under 16-13 this subsection shall be held in a special deposit account and 16-14 shall be paid, on order of the commission, directly to each 16-15 affected employee. Any amount not paid to an employee within three 16-16 years of receipt because of inability to make the payment shall be 16-17 deposited in the state treasury to the credit of the general 16-18 revenue fund. 16-19 (h) Except as otherwise provided by this subsection, an 16-20 action must be brought under this section not later than the second 16-21 anniversary of the date of the last event constituting the alleged 16-22 violation for which the action is brought. If the action alleges a 16-23 wilful violation of Section 14 of this Act, the action must be 16-24 brought not later than the third anniversary of the date of the 16-25 last event constituting the alleged violation. In determining for 16-26 the purposes of this subsection when an action is begun by the 16-27 commission under Subsection (f) of this section, the action is 17-1 begun on the date on which the complaint is filed. 17-2 (i) In addition to an action to recover damages, the 17-3 commission may bring an action to restrain violations of Section 14 17-4 of this Act, including an action to restrain the withholding of 17-5 payment of wages, salary, employment benefits, or other 17-6 compensation, plus interest, found by the court to be due to 17-7 eligible employees. 17-8 SECTION 16. EFFECTIVE DATE. (a) This Act takes effect 17-9 September 1, 1993. 17-10 (b) An employee is not entitled to take leave as provided by 17-11 Section 4 of this Act before January 1, 1994. 17-12 (c) The commission shall adopt rules and prescribe notices 17-13 and forms as required by this Act not later than November 1, 1993. 17-14 SECTION 17. EMERGENCY. The importance of this legislation 17-15 and the crowded condition of the calendars in both houses create an 17-16 emergency and an imperative public necessity that the 17-17 constitutional rule requiring bills to be read on three several 17-18 days in each house be suspended, and this rule is hereby suspended.