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.