SRC-HRD H.B. 2400 75(R) BILL ANALYSIS
Senate Research Center H.B. 2400
By: Garcia (Patterson)
Economic Development
5-18-97
Engrossed
DIGEST
In 1993, Congress passed the Family and Medical Leave Act, allowing
employees to take up to 12 weeks of unpaid leave to care for ill minor
children and spouses. However, the Act did not explicitly address the
issue of employees taking time to care for adult children or parents who
have catastrophic illnesses such as cancer or AIDS. This bill would allow
employees to take work leave to enable them to tend to their adult
children or parents that have serious illnesses and codifies the federal
Family and Medical Leave Act into state law.
PURPOSE
As proposed, H.B. 2400 sets forth provisions regarding work leave for
certain employees.
RULEMAKING AUTHORITY
Rulemaking authority is granted to the Texas Workforce Commission under
SECTION 1 (Section 84.012, Labor Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 2D, Labor Code, by adding Chapter 84, as follows:
CHAPTER 84. FAMILY AND MEDICAL LEAVE
Sec. 84.001. DEFINITIONS. Defines "child," "commission," "employee,"
"employer," "employment benefits," "employee benefit plan," "health care
provider," "parent," "reduced leave schedule," and "serious health
condition."
Sec. 84.002. APPLICATION OF CHAPTER; ELIGIBLE EMPLOYEES. Provides that
this chapter applies to each employer who employs 50 or more employees in
this state. Sets forth requirements regarding eligibility for family and
medical leave from an employer under this chapter. Provides that,
notwithstanding Subsections (a) and (b), an employee who is employed at a
worksite of an employer at which the employer employs fewer than 50
employees is not eligible for family and medical leave under this chapter
if the total number of employees employed by that employer within 75 miles
of that worksite is fewer than 50 employees.
Sec. 84.003. FAMILY AND MEDICAL LEAVE. Provides that, except as provided
by Section 84.008, an eligible employee is entitled to a total of 12
workweeks during any 12month period because of certain occurrences.
Provides that entitlement to leave under Subsection (a) for a birth or
placement of a child expires on the first anniversary of the date of the
birth or placement. Prohibits an employee from taking leave under
Subsection (a)(1) or (a)(2) intermittently unless the employee and the
employer of the employee agree in writing to that leave. Authorizes an
employee to take leave under Subsection (a)(3) or (a)(4) intermittently
when that leave is medically necessary. Sets forth provisions applicable
if an employee requests intermittent leave under Subsection (a)(3) or
(a)(4) that is foreseeable because of planned medical treatment. Sets
forth additional provisions regarding the taking of leave. Sets forth
provisions regarding the posting on notice regarding the pertinent
provisions of this chapter by each employer.
Sec. 84.004. UNPAID LEAVE PERMITTED. Authorizes leave granted under
Section 84.003 to consist of unpaid leave, except as provided by
Subsection (b). Sets forth provisions applicable if an employer provides
paid leave for fewer than 12 workweeks.
Sec. 84.005. SUBSTITUTION OF PAID LEAVE. Authorizes an eligible employee
to elect, or an employer to require an employee, to substitute accrued
paid vacation leave, personal leave, or other leave for leave provided
under Section84.003(a)(1), (2), or (3) for any part of the 12 weeks of
leave required under Section 84.003. Sets forth provisions regarding the
substitution of accrued paid vacation leave, personal leave, or medical or
sick leave for leave provided under Section 84.003(a)(3) or (4). Provides
that this chapter does not require an employer to provide paid sick leave
or paid medical leave in any situation in which that employer would not
normally provide paid leave.
Sec. 84.006. FORESEEABILITY OF LEAVE; NOTICE. Sets forth provisions
applicable if the necessity of leave under Section 84.003(a)(1) or (2) is
foreseeable because of an expected birth or adoption. Sets forth
provisions applicable if the necessity for leave under Section
84.003(a)(3) or (4) is foreseeable because of planned medical treatment.
Sec. 84.007. SPOUSES EMPLOYED BY SAME EMPLOYER. Sets forth provisions
applicable if a husband and wife entitled to leave under Section 84.003
are employed by the same employer.
Sec. 84.008. CERTIFICATION. Authorizes an employer to require that a
request for leave under Section 84.003(a)(3) or (4) be certified by the
health care provider of the eligible employee or of the child, spouse, or
parent of the employee, as appropriate. Requires the employee to provide
a copy of the certification to the employer in a timely manner. Sets
forth provisions regarding sufficient certification. Sets forth
provisions applicable if the employer has reason to doubt the validity of
the certification provided under Subsection (a) for leave under Section
84.003(a)(3) or (4). Sets forth provisions applicable if a second opinion
obtained under Subsection (c) differs from the opinion in the original
certification provided under Subsection (a). Authorizes the employer to
require that the eligible employee obtain subsequent recertifications or a
reasonable basis.
Sec. 84.009. EMPLOYMENT AND BENEFITS PROTECTION; EXCEPTION. Authorizes
an eligible employee who takes leave under Section 84.003 for the intended
purpose of the leave is entitled, on return from the leave, to
reinstatement in the former position of employment or an equivalent
position of employment with equivalent employment benefits, pay, and other
terms and conditions of employment. Prohibits leave taken under Section
84.003 from resulting in the loss of any employment benefit accrued before
the date on which the leave began. Provides that this section does not
entitle an employee who is reinstated in employment to certain rights,
benefits, or positions of employment. Authorizes an employer, as a
condition of eligibility to return to employment under Subsection (a), to
adopt a uniformly applied practice or policy that requires an employee to
receive certification from a health care provider that the employee is
able to resume work. Provides that this subsection does not supersede a
statute of this state, an order or ordinance of a political subdivision of
this state, or a collective bargaining agreement that governs the return
to work of an employee taking leave under Section 84.003(a)(4). Provides
that this section does not prohibit an employer from requiring an employee
on leave under Section 84.003 to report periodically to the employer on
the status and intention of the employee to return to work. Sets forth
provisions regarding the reinstatement of an employee under Subsection
(a).
Sec. 84.010. MAINTENANCE OF HEALTH INSURANCE BENEFITS. Requires the
employer, except as provided by Subsection (b), during any period that an
eligible employee takes leave under Section 84.003, to maintain insurance
coverage for that employee under any applicable group health plan for the
duration of the leave at the level and under the conditions the coverage
would have been provided if the employee had continued in employment
continuously from the date on which the employee began the leave until the
date on which the employee returned to employment under Section 84.009.
Authorizes the employer to recover the premium that the employer paid to
maintain insurance coverage for the employee under the group health plan
during any period of unpaid leave taken under Section 84.003 if the
employee fails to return to work under certain conditions. Authorizes an
employer to require that a claim that an employee is unable to return to
work because of the continuation, recurrence, or onset of a serious health
condition be certified by a certain health care provider. Requires the
employee to provide, in a timely manner, a copy of the certification to
the employer. Sets forth provisions regarding certification required
under Subsection (c)(1) and (c)(2). Defines "group health plan."
Sec. 84.011. APPLICATION TO EMPLOYEES OF CERTAIN EDUCATIONAL
INSTITUTIONS. Sets forth provisions regarding the application of rights,
remedies, and procedures under this chapter to employees of a public or
private elementary or secondary school or school district. Sets forth
provisions applicable if an eligible employee principally in an
instructional capacity by a school requests leave under Section
84.003(a)(3) or (4) that is foreseeable because of planned medical
treatment and that leave would exceed 20 percent of the total number of
working days in the applicable academic period. Requires an employee who
makes an election under Subsection (b) to comply with Section 84.006(b).
Sets forth provisions applicable if the eligible employee begins leave
under Section 84.003(a)(1), (2), or (3) during a certain time period.
Requires the determination required under Section 84.009(a) as to
placement in an equivalent position of employment to be made on the basis
of established public school district policies and practices, private
school policies and practices, and any applicable collective bargaining
agreements.
Sec. 84.012. COMMISSION POWERS AND DUTIES. Requires the Texas Workforce
Commission (commission) to adopt rules as necessary to implement this
chapter. Prohibits the commission from adopting a rule that is
inconsistent with certain provisions. Sets forth provisions regarding
compliance with this chapter. Prohibits the commission from requiring an
employer to submit certain items or information under this section except
under certain conditions. Authorizes the commission, for the purposes of
any investigation conducted under this section, to exercise the subpoena
authority granted under Chapter 301E.
Sec. 84.013. PROHIBITED ACTS. Prohibits an employer from interfering
with, restraining, or denying the exercise of or from attempting to
exercise any right provided under this chapter. Set sets forth additional
prohibitions.
Sec. 84.014. ENFORCEMENT. Sets forth the liability of an employer who
violates Section 84.013 to an affected eligible employee. Provides that
the employer is also liable for equitable relief as appropriate, including
employment, reinstatement, and promotion. Authorizes an action to recover
damages or equitable relief under this section to be maintained in a court
of competent jurisdiction by any one or more employees and in behalf of
those employees or those employees and other employees similarly situated.
Authorizes the court, under certain conditions, to require the defendant
to pay reasonable attorney's fees, reasonable expert witness fees, and
other costs. Sets forth provisions regarding the termination of a right
to bring action under this section. Requires the commissioner of the
Texas Worforce Commission (commissioner) to receive, investigate, and
attempt to resolve complaints of violations under Section 84.013 in the
same manner that the commission receives, investigates, and attempts to
resolve complaints of violations under Section 84.013 in a certain manner.
Sets forth authorizations and provisions regarding an action brought by
the commission in a court of competent jurisdiction for certain purposes.
Sets forth provisions regarding requirements for an action brought under
this section. Authorizes the commission, in addition to an action to
recover damages, to bring an action to restrain violations of Section
84.013, including an action to restrain the withholding of payment of
wages, salary, employment benefits, or other compensation, plus interest,
found by the court to be due to eligible employees.
SECTION 2. (a) Effective date: September 1, 1997.
(b) Provides that an employee is not entitled to take leave as provided by
Section 84.004, Labor code, as added by this Act, before January 1, 1998.
(c) Requires the Texas Workforce Commission to adopt rules and prescribe
notices and forms as required by Chapter 84, Labor Code, as added by this
Act, not later than November 1, 1997.
SECTION 3. Emergency clause.