JKM H.B. 2400 75(R)BILL ANALYSIS
ECONOMIC DEVELOPMENT
H.B. 2400
By: Garcia
4-08-97
Committee Report (Amended)
BACKGROUND
In 1994, Congress passed the Family Medical Leave Act (FMLA), allowing
employees to take up to 12 weeks of unpaid leave to care for ill minor
children and spouses. However, the Act did not address the issue of
employees taking time to care for adult children or parents who have
catastrophic illnesses such as cancer or AIDS. Thus employees found
themselves in difficult binds. Had they needed to care for minor children
or their spouses, they could fall under the FMLA. But, since no
provisions exist for caring for adult children or parents with serious
illnesses, these employees simply fell though the cracks.
PURPOSE
A proposed, H.B. 2400 makes family and medical leave provisions for
certain employees.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does expressly grant any
rulemaking authority to the Texas Workforce Commission in SECTION 1 by
adding Sec. 84.012, Subtitle D, Title 2, Labor Code, to implement the
chapter.
SECTION BY SECTION ANALYSIS
SECTION 1.Amends Subtitle D, Title 2, Labor Code, by adding Chapter 84,
Family and Medical Leave, as follows:
Sec. 84.001. DEFINITIONS. defines "child," "commission," "employee,"
"employer," "employee benefits," "employee benefit plan," "health care
provider," "parent," "reduced leave schedule," and "serious health
condition."
Sec. 84.002. APPLICABILITY. Chapter applicable to employer who employs
50 or more employees in Texas.
Sec. 84.003. FAMILY AND MEDICAL LEAVE.
(a) An employee is entitled to a maximum of 12 work weeks of leave during
any 12 month period if one or more of the following conditions are met:
(1) birth of a child;
(2) placement of a child with the employee for adoption or foster care;
(3) caring for a spouse, child or parent of the employee if the spouse,
child, or parent has a serious health condition; or
(4) if the employee himself has a serious medical condition.
(b) Leave for birth of a child or placement of a child expires on the
first anniversary of the birth or placement.
(c) Does not allow an employee to take FML intermittently under (a)(1) or
(a)(2) unless the employee and the employer have a written agreement to do
so; does allow an employee to take FML intermittently under (a)(3) or
(a)(4) when medically necessary.
(d) Requires that if an employee requests intermittent FML under
Subsection (a)(3) or (a)(4) because of a planned medical treatment, the
employer may require that employee to transfer temporarily to an available
alternative position offered by the employer for which the employee is
qualified and that:
(1) has the same pay and benefits; and
(2) can better accommodate recurring periods of leave than the employee's
regular position.
(e) On the written agreement of the employee and employer, an employee
may take leave under Subsection (a) on a reduced schedule; however, this
does not reduce the total number of leave that the employee is entitled
to.
(f) Requires that the employer post information about FMLA in writing in
a conspicuous place where notices to employees are customarily posted;
provides for civil penalties not to exceed $100 for each violation if the
employer does not carry this section out.
Sec. 84.004. UNPAID LEAVE PERMITTED.
(a) Leave granted may be unpaid leave.
(b) If an employer provides less than 12 weeks of paid leave, any
additional weeks of leave necessary to comply with the 12 work weeks of
leave required under Chapter 84 may be provided by the employer without
compensation.
Sec. 84.005. SUBSTITUTION OF PAID LEAVE.
(a) Allows eligible employees to substitute accrued paid vacation leave,
personal leave or other leave for any part of the 12 weeks under Section
84.003(a)(1),(2), or (3). Employers may also require their employees to
make that substitution.
(b) Same as above, except this subsection is now applicable to Section
84.003 (3) or (4). However, an employer is not required to provide paid
sick leave or paid medical leave in any situation where that employer
would not normally provide paid leave.
Sec. 84.006. FORESEEABILITY OF LEAVE; NOTICE.
(a) Under Section 84.003(a)(1) or (2), an employee is required to give at
least 30 days written notice because of a foreseeable birth adoption.
However, if the birth or adoption requires that the leave begin in less
than 30 days, then the employee must give notice to the employer in
practicable manner.
(b) If the need for FMLA is foreseeable due to a planned medical
treatment, then the employee must:
(1) try to schedule the treatment so as to avoid disrupting the
operations of the
employer, subject to the approval of the health care provider of
the employee,
his spouse, child or parent; and
(2) same as Section 84.006(a).
Sec. 84.007. SPOUSES EMPLOYED BY THE SAME EMPLOYER.
(a) Provides that if the husband and wife are employed by the same
employer, they may both be entitled to 12 weeks of unpaid leave, if the
leave is taken:
(1) for a birth or the adoption of a child; or
(2) to care for a sick parent.
Sec. 84.008. CERTIFICATION.
(a) Employer may require that the request for leave be certified by the
health care provider of the employee, his child, spouse or employee; the
employee is to provide the certification in a timely manner.
(b) Certification should have this information:
(1) the date the serious health condition began;
(2 the probable duration of the condition;
(3) the appropriate medical facts concerning the condition within the
knowledge of the health care provider;
(4) a statement that the employee is needed to care for the child, spouse
or parent and an estimate of the time that the care is needed;
(5) a statement that the employee is unable to perform the duties and
functions of the job; and
(6) the treatment dates and the duration of the treatments.
(c) If the employer has reasonable doubts, then he may require, at the
expense of the employer, that the employee obtain a second opinion from
another health care provider; and
(d) If the second opinion differs from the first, then the employer, at
his own expense, may request a third opinion from another health care
provider.
(e) An employer may require that the employee obtain subsequent
recertification on a reasonable basis.
Sec. 84.009. EMPLOYMENT BENEFITS AND PROTECTION; EXCEPTION.
(a) Allows the employee who took FML to be reinstated in his former job,
retaining all benefits, pay and other terms and conditions of employment.
(b) Leave taken may not result in the loss of any employment benefit
accrued before the date the leave began.
(c) What the leave does not entitle the employee to:
(1) accrual of seniority or other employee benefits during any leave
period; or
(2) any rights, benefits, or employment position other than those which
would have been entitled had leave not been taken.
(d) Employer may require that an employee receive certification from the
health care provider indicating that he is able to return to work.
(e) Does not prohibit an employer from requiring an employee on leave to
report periodically on the status and intention of the employee to return
to work.
(f) Does not require an employer to reinstate an employee if that
employee is a salaried employee whose compensation is computed to be in
the highest 10% paid to the employees by that employer within 75 miles of
the facility at which the employee is employed.
Sec. 84.010. MAINTENANCE OF HEALTH INSURANCE BENEFITS.
(a) Provides that the employer shall maintain health insurance coverage
for the employee who took FMLA, except as provided by Subsection (d).
(b) Employer may recover premium from the employee if the employee fails
to return to work:
(1) after the leave period has expired;
(2) for a reason other than:
(a) the continuance, recurrence or onset of a serious health condition
that entitles the employee to leave; or
(b) other circumstances beyond the control of the employee.
(c) Employer may require that the claim stating the employee is unable to
return to work due to continuance, recurrence, or onset of a serious
health condition be certified by:
(1) the eligible employee's health care provider; or
(2) the health care provider of the child, spouse or parent of the
employee.
(d) Requires the employee provide the employer with a copy of the
certification in a timely manner.
(e) It is sufficient that the certification state that a serious health
condition made the employee unable to work on the date the leave expired,
or the at the employee is needed to care for the child, spouse or parent
because of the serious health condition in effect on the date that the
leave expired.
(f) Defines "group health plan".
Sec. 84.011. APPLICATION TO EMPLOYEES OF CERTAIN EDUCATIONAL INSTITUTIONS.
(a) Makes FILA applicable to the employees of a public or private
elementary or secondary school or school district, except as otherwise
provided by this section.
(b) If a eligible employee requests leave that is foreseeable for planned
medical treatment, and the leave would exceed 20% of the total number of
working days in the applicable academic period, the school may require
that the employee elect to:
(1) take the leave in periods of particular duration, not to exceed the
length of the planned medical treatment; or
(2) transfer temporarily to a temporary position offered by the employer
for which the employee is qualified and that:
(a) has the same pay and benefits; and
(b) better accommodates the recurring leave times.
(c) Requires that an employee who makes an election under Section (b)
comply with Section 84.006(b).
(d) Subsection applicable only to periods of leave requested near the end
of the school year if the employee is an instructor. If the employee
begins leave more than five weeks before the end of the school term, the
school may require the employee to continue taking leave until the end of
the term if the leave lasts at least three weeks and the return to work
would occur during the last three weeks of the term. If the employee
begins leave during the period that begins five weeks before the end of
the school term, the school may require the employee to continue taking
leave until the end of that term if the leave is longer than two weeks and
the return to work would occur during the last two weeks of the term. If
the employee begins leave during the period that begins three weeks before
the end of the school term and the leave lasts longer than five working
days, the school may require the employee to continue to take leave until
the end of the term.
(e) The re-placement determination clause under Section 84.009(a) shall
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.
(a) Commission shall adopt the necessary rules to implement this chapter.
(b) Commission shall conduct investigations of employers under this
chapter to ensure compliance. Requires employers to maintain records in
accordance with Commission rules.
(c) Commission may not require employers to submit books, records or
other information more than yearly, unless the commission;
(1) has reasonable cause to believe that the employer has violated this
chapter or Commission rules; or
(2) is investigating a charge under Section 84.014.
(d) Grants the Commission subpoena authority for investigative purposes.
Sec. 84.013. PROHIBITED ACTS.
(a) Prohibits an employer from interfering with, restraining or denying
the exercise of, or the attempt to exercise, any right under this chapter.
(b) Prohibits an employer from discharging, or otherwise discriminating,
an individual for opposing a practice made unlawful by this chapter.
(c) Prohibits an individual from discharging or otherwise discriminating
against an individual because that individual has:
(1) filed a charge, or instituted or caused to be instituted a proceeding
under or related to this chapter;
(2) given, or will give, any information in connection with an inquiry or
proceeding relating to a right provided under this chapter; or
(3) testified, or will testify, in an inquiry or proceeding relating to a
right provided under this chapter.
Sec. 84.014. ENFORCEMENT.
(a) Sets the damages for which an employer is liable to an employee
equal to the amount of:
(1) any wages, salary, employment benefits, or other compensation denied
to or lost to the employee because of the violation, or if these were not
lost, any actual monetary loss that the employee suffered, including
payment for the 12 weeks of leave;
(2) interest on the amount for the above section;
(3) additional amount as liquidated damages equal to the sum of the
amount under Section (1) and the interest accrued under Section (2);
provided the employer can prove that the omission was done in good faith.
(b) Makes the employer liable for equitable relief such as employment,
reinstatement and promotion.
(c) Allows for a class action lawsuit.
(d) Requires the defendant to also pay attorney's fees, expert witness
fees and other costs.
(e) Unless the action is dismissed on motion of the commission, the right
to bring a lawsuit under this section terminates on:
(1) the commission filing a complaint in an action under Section (i) in
which:
(a) restraint is sought of any further delay in the payment of the
damages;
(b) equitable relief is sought as a result of alleged violations of
Section 84.013; or
(2) the filing of a complaint by the Commission in an action under
Subsection (f) in which a recovery is sought of the damages in Subsection
(a).
(f) Authorizes the Commission to receive, investigate and try to resolve
complaints of violations under Section 84.013 in the same manner that it
does for complaints under Chapter 61.
(g) Allows the Commission to bring a court action to recover on behalf of
the employee the damages described in Subsection (a). Any amount
recovered by the Commission on the employee's behalf shall be held in a
special account and shall be paid, on order of the Commission, directly to
the affected employee. Whatever is not paid back to the employee within
three years will be deposited in the state treasury for the general
revenue fund.
(h) Sets a two-year statute of limitation for violations under this
section. However, a threeyear statute of limitations will be set for
violations under Section 84.013.
(i) Allows the Commission, in attempting to collect damages, to restrain
the withholding of payment of wages, salary, employer benefits or other
compensation, plus interest found by the court to be due to eligible
employees.
SECTION 2:Effective date. An employee is not entitled to take leave under
this act before January 1, 1998. The Texas Workforce Commission shall
adopt rules and prescribe notices and forms not later than November 1,
1997.
SECTION 3: EMERGENCY CLAUSE.
EXPLANATION OF AMENDMENTS
AMENDMENT #1 inserts language in SECTION 1, page 12, after line 17, which
prohibits the commission from adopting a rule that is inconsistent with
the Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.); or
a federal rule or regulation adopted under that Act.
AMENDMENT #2 amends SECTION 1, Sec. 84.002, by dividing the section into
subsections and adding eligibility guidelines for employees. Subsection
(b) states that to be eligible for family or medical leave from an
employer under this chapter, an employee must be employed for at least 12
months by the employer from whom the leave is requested, and work at least
1,250 hours for that employer during those 12 months. Subsection (c)
states that an employee is not eligible for family and medical leave if
the employee is employed at a worksite of an employer with less than 50
employees at that worksite and the employer employs less than 50 employees
within 75 miles of the worksite.