By Garcia, et al. H.B. No. 2400
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. Subtitle D, Title 2, Labor Code, is amended by
1-6 adding Chapter 84 to read as follows:
1-7 CHAPTER 84. FAMILY AND MEDICAL LEAVE
1-8 Sec. 84.001. DEFINITIONS. In this chapter:
1-9 (1) "Child" means a biological child, adopted or
1-10 foster child, stepchild, legal ward, or child of a person standing
1-11 in loco parentis who is:
1-12 (A) under 18 years of age; or
1-13 (B) 18 years of age or older and incapable of
1-14 self-care because of a physical or mental disability or serious
1-15 health condition.
1-16 (2) "Commission" means the Texas Workforce Commission.
1-17 (3) "Employee" means an individual who performs
1-18 services for an employer for compensation. The term does not
1-19 include an independent contractor.
1-20 (4) "Employer" means a person who employs employees.
1-21 (5) "Employment benefits" means all benefits provided
1-22 by or made available to employees by an employer. The term
1-23 includes group life insurance, health insurance, disability
1-24 insurance, sick leave, annual leave, educational benefits, and
2-1 pensions, whether the benefits are provided by a practice or
2-2 written policy of an employer or through an employee benefit plan.
2-3 (6) "Employee benefit plan" has the meaning assigned
2-4 by Section 3(3), Employee Retirement Income Security Act of 1974
2-5 (29 U.S.C. Sec. 1002(3)).
2-6 (7) "Health care provider" means:
2-7 (A) a licensed individual who provides or
2-8 renders health care; or
2-9 (B) an unlicensed individual who provides or
2-10 renders health care under the direction or supervision of a
2-11 physician.
2-12 (8) "Parent" means:
2-13 (A) the biological parent of an employee; or
2-14 (B) an individual who stood in loco parentis to
2-15 an employee when the employee was a child.
2-16 (9) "Reduced leave schedule" means leave that reduces
2-17 the usual number of hours worked per workweek, or hours per
2-18 workday, of an employee.
2-19 (10) "Serious health condition" means an illness,
2-20 injury, impairment, or physical or mental condition that requires
2-21 inpatient care in a hospital, hospice, or residential medical care
2-22 facility, or continuing treatment by a health care provider. The
2-23 term includes a serious disease such as cancer or acquired immune
2-24 deficiency syndrome.
2-25 Sec. 84.002. APPLICATION OF CHAPTER; ELIGIBLE EMPLOYEES.
2-26 (a) This chapter applies to each employer who employs 50 or more
2-27 employees in this state.
3-1 (b) To be eligible for family and medical leave from an
3-2 employer under this chapter, an employee must:
3-3 (1) be employed for at least 12 months by the employer
3-4 from whom the leave is requested; and
3-5 (2) work for at least 1,250 hours for that employer
3-6 during those 12 months.
3-7 (c) Notwithstanding Subsections (a) and (b), an employee who
3-8 is employed at a worksite of an employer at which the employer
3-9 employs fewer than 50 employees is not eligible for family and
3-10 medical leave under this chapter if the total number of employees
3-11 employed by that employer within 75 miles of that worksite is fewer
3-12 than 50 employees.
3-13 Sec. 84.003. FAMILY AND MEDICAL LEAVE. (a) Except as
3-14 provided by Section 84.008, an eligible employee is entitled to a
3-15 total of 12 workweeks of leave during any 12-month period because
3-16 of one or more of the following:
3-17 (1) the birth of a child of the employee if the leave
3-18 is required to care for that child;
3-19 (2) the placement of a child with the employee for
3-20 adoption or foster care;
3-21 (3) to care for the spouse, child, or parent of the
3-22 employee, if the spouse, child, or parent has a serious health
3-23 condition; or
3-24 (4) a serious health condition that makes the employee
3-25 unable to perform the functions of the position of employment of
3-26 the employee.
3-27 (b) Entitlement to leave under Subsection (a) for a birth or
4-1 placement of a child expires on the first anniversary of the date
4-2 of the birth or placement.
4-3 (c) An employee may not take leave under Subsection (a)(1)
4-4 or (a)(2) intermittently unless the employee and the employer of
4-5 the employee agree in writing to that leave. An employee may take
4-6 leave under Subsection (a)(3) or (a)(4) intermittently when that
4-7 leave is medically necessary.
4-8 (d) If an employee requests intermittent leave under
4-9 Subsection (a)(3) or (a)(4) that is foreseeable because of planned
4-10 medical treatment, the employer may require the employee to
4-11 transfer temporarily to an available alternative position offered
4-12 by the employer for which the employee is qualified and that:
4-13 (1) has equivalent pay and benefits; and
4-14 (2) better accommodates recurring periods of leave
4-15 than the regular employment position of the employee.
4-16 (e) On the written agreement of the employer and the
4-17 employee, an employee may take leave under Subsection (a) on a
4-18 reduced leave schedule. Work performed by an employee on a reduced
4-19 leave schedule does not reduce the total amount of leave to which
4-20 the employee is entitled under Subsection (a).
4-21 (f) Each employer shall post in conspicuous places on the
4-22 premises of the employer where notices to employees and applicants
4-23 for employment are customarily posted, a notice, prepared or
4-24 approved by the commission, setting forth the pertinent provisions
4-25 of this chapter and information relating to the enforcement of this
4-26 chapter. An employer who wilfully violates this subsection is
4-27 liable for a civil penalty not to exceed $100 for each violation.
5-1 The attorney general may bring an action to collect a civil penalty
5-2 under this section. Civil penalties assessed under this section
5-3 shall be deposited in the general revenue fund.
5-4 Sec. 84.004. UNPAID LEAVE PERMITTED. (a) Except as
5-5 provided by Subsection (b), leave granted under Section 84.003 may
5-6 consist of unpaid leave.
5-7 (b) If an employer provides paid leave for fewer than 12
5-8 workweeks, any additional weeks of leave necessary to comply with
5-9 the 12 workweeks of leave required under this chapter may be
5-10 provided by the employer without compensation.
5-11 Sec. 84.005. SUBSTITUTION OF PAID LEAVE. (a) An eligible
5-12 employee may elect, or an employer may require an employee, to
5-13 substitute accrued paid vacation leave, personal leave, or other
5-14 leave for leave provided under Section 84.003(a)(1), (2), or (3)
5-15 for any part of the 12 weeks of leave required under Section
5-16 84.003.
5-17 (b) An eligible employee may elect, or an employer may
5-18 require an employee, to substitute accrued paid vacation leave,
5-19 personal leave, or medical or sick leave for leave provided under
5-20 Section 84.003(a)(3) or (4) for any part of the 12 weeks of leave
5-21 required under Section 84.003. However, this chapter does not
5-22 require an employer to provide paid sick leave or paid medical
5-23 leave in any situation in which that employer would not normally
5-24 provide paid leave.
5-25 Sec. 84.006. FORESEEABILITY OF LEAVE; NOTICE. (a) If the
5-26 necessity for leave under Section 84.003(a)(1) or (2) is
5-27 foreseeable because of an expected birth or adoption, the affected
6-1 employee shall, at least 30 days before the date the leave is to
6-2 begin, notify the employer in writing of the employee's intention
6-3 to take the leave. If the date of the birth or adoption requires
6-4 that the leave begin in less than 30 days, the employee shall
6-5 provide notice to the employer as is practicable.
6-6 (b) If the necessity for leave under Section 84.003(a)(3) or
6-7 (4) is foreseeable because of planned medical treatment, the
6-8 employee shall:
6-9 (1) make a reasonable effort to schedule the treatment
6-10 to avoid disrupting unduly the operations of the employer, subject
6-11 to the approval of the health care provider of the employee or of
6-12 the child, spouse, or parent of the employee, as applicable; and
6-13 (2) at least 30 days before the date the leave is to
6-14 begin, notify the employer in writing of the employee's intention
6-15 to take the leave; provided that if the date of the treatment
6-16 requires that the leave begin in less than 30 days, the employee
6-17 shall provide notice to the employer as is practicable.
6-18 Sec. 84.007. SPOUSES EMPLOYED BY SAME EMPLOYER. If a
6-19 husband and wife entitled to leave under Section 84.003 are
6-20 employed by the same employer, the aggregate number of workweeks of
6-21 leave to which both may be entitled may be limited to 12 workweeks
6-22 during any 12-month period, if the leave is taken:
6-23 (1) under Section 84.003(a)(1) or (2); or
6-24 (2) to care for a sick parent under Section
6-25 84.003(a)(3).
6-26 Sec. 84.008. CERTIFICATION. (a) An employer may require
6-27 that a request for leave under Section 84.003(a)(3) or (4) be
7-1 certified by the health care provider of the eligible employee or
7-2 of the child, spouse, or parent of the employee, as appropriate.
7-3 The employee shall provide, in a timely manner, a copy of the
7-4 certification to the employer.
7-5 (b) Certification provided under Subsection (a) is
7-6 sufficient if it states:
7-7 (1) the date on which the serious health condition
7-8 began;
7-9 (2) the probable duration of the condition;
7-10 (3) the appropriate medical facts within the knowledge
7-11 of the health care provider regarding the condition;
7-12 (4) for purposes of leave under Section 84.003(a)(3),
7-13 a statement that the eligible employee is needed to care for the
7-14 child, spouse, or parent and an estimate of the amount of time that
7-15 the employee is needed to care for the child, spouse, or parent;
7-16 (5) for purposes of leave under Section 84.003(a)(4),
7-17 a statement that the employee is unable to perform the functions of
7-18 the position of employment; and
7-19 (6) for purposes of intermittent leave for planned
7-20 medical treatment, the dates on which the treatment is expected to
7-21 be given and the duration of the treatment.
7-22 (c) If the employer has reason to doubt the validity of the
7-23 certification provided under Subsection (a) for leave under Section
7-24 84.003(a)(3) or (4), the employer may require, at the expense of
7-25 the employer, that the eligible employee obtain the opinion of a
7-26 second health care provider designated or approved by the employer
7-27 concerning any information certified under Subsection (b). A
8-1 health care provider designated or approved under this subsection
8-2 may not be employed on a regular basis by the employer.
8-3 (d) If a second opinion obtained under Subsection (c)
8-4 differs from the opinion in the original certification provided
8-5 under Subsection (a), the employer may require, at the expense of
8-6 the employer, that the employee obtain the opinion of a third
8-7 health care provider designated or approved jointly by the employer
8-8 and the employee concerning the information certified under
8-9 Subsection (b). The opinion of the third health care provider is
8-10 final and binding on the employer and the employee.
8-11 (e) The employer may require that the eligible employee
8-12 obtain subsequent recertifications on a reasonable basis.
8-13 Sec. 84.009. EMPLOYMENT AND BENEFITS PROTECTION; EXCEPTION.
8-14 (a) An eligible employee who takes leave under Section 84.003 for
8-15 the intended purpose of the leave is entitled, on return from the
8-16 leave, to reinstatement in the former position of employment or an
8-17 equivalent position of employment with equivalent employment
8-18 benefits, pay, and other terms and conditions of employment.
8-19 (b) Leave taken under Section 84.003 may not result in the
8-20 loss of any employment benefit accrued before the date on which the
8-21 leave began.
8-22 (c) This section does not entitle an employee who is
8-23 reinstated in employment to:
8-24 (1) the accrual of seniority or other employment
8-25 benefits during any period of leave; or
8-26 (2) any right, benefit, or position of employment
8-27 other than any right, benefit, or position to which the employee
9-1 would have been entitled had the employee not taken the leave.
9-2 (d) As a condition of eligibility to return to employment
9-3 under Subsection (a), an employer may adopt a uniformly applied
9-4 practice or policy that requires an employee to receive
9-5 certification from a health care provider that the employee is able
9-6 to resume work. This subsection does not supersede a statute of
9-7 this state, an order or ordinance of a political subdivision of
9-8 this state, or a collective bargaining agreement that governs the
9-9 return to work of an employee taking leave under Section
9-10 84.003(a)(4).
9-11 (e) This section does not prohibit an employer from
9-12 requiring an employee on leave under Section 84.003 to report
9-13 periodically to the employer on the status and intention of the
9-14 employee to return to work.
9-15 (f) An employer is not required under this chapter to
9-16 reinstate an employee under Subsection (a) if the employee is a
9-17 salaried employee whose compensation from the employer is computed
9-18 to be in the highest 10 percent of compensation paid to the
9-19 employees employed by that employer within 75 miles of the facility
9-20 at which the employee is employed.
9-21 Sec. 84.010. MAINTENANCE OF HEALTH INSURANCE BENEFITS. (a)
9-22 Except as provided by Subsection (b), during any period that an
9-23 eligible employee takes leave under Section 84.003, the employer
9-24 shall maintain insurance coverage for that employee under any
9-25 applicable group health plan for the duration of the leave at the
9-26 level and under the conditions the coverage would have been
9-27 provided if the employee had continued in employment continuously
10-1 from the date on which the employee began the leave until the date
10-2 on which the employee returned to employment under Section 84.009.
10-3 (b) The employer may recover the premium that the employer
10-4 paid to maintain insurance coverage for the employee under the
10-5 group health plan during any period of unpaid leave taken under
10-6 Section 84.003 if the employee fails to return to work:
10-7 (1) after the period of leave to which the employee is
10-8 entitled has expired; and
10-9 (2) for a reason other than:
10-10 (A) the continuation, recurrence, or onset of a
10-11 serious health condition that entitles the employee to leave under
10-12 Section 84.003(a)(3) or (4); or
10-13 (B) other circumstances beyond the control of
10-14 the employee.
10-15 (c) An employer may require that a claim that an employee is
10-16 unable to return to work because of the continuation, recurrence,
10-17 or onset of a serious health condition be certified by:
10-18 (1) the health care provider of the eligible employee,
10-19 if the employee is unable to return to work because of a condition
10-20 specified under Section 84.003(a)(4); or
10-21 (2) the health care provider of the child, spouse, or
10-22 parent of the employee if the employee is unable to return to work
10-23 because of a condition specified under Section 84.003(a)(3).
10-24 (d) The employee shall provide, in a timely manner, a copy
10-25 of the certification to the employer.
10-26 (e) Certification required under Subsection (c)(1) is
10-27 sufficient if the certification states that a serious health
11-1 condition made the employee unable to perform the functions of the
11-2 position of employment on the date that the leave expired.
11-3 Certification required under Subsection (c)(2) is sufficient if the
11-4 certification states that the employee is needed to care for the
11-5 child, spouse, or parent because of the serious health condition in
11-6 effect on the date that the leave expired.
11-7 (f) For the purposes of this section, "group health plan"
11-8 has the meaning assigned by Section 5000(b)(1), Internal Revenue
11-9 Code of 1986 (26 U.S.C. Sec. 5000(b)(1)).
11-10 Sec. 84.011. APPLICATION TO EMPLOYEES OF CERTAIN EDUCATIONAL
11-11 INSTITUTIONS. (a) Except as otherwise provided by this section,
11-12 the rights, remedies, and procedures under this chapter apply to
11-13 the employees of a public or private elementary or secondary school
11-14 or school district.
11-15 (b) If an eligible employee employed principally in an
11-16 instructional capacity by a school requests leave under Section
11-17 84.003(a)(3) or (4) that is foreseeable because of planned medical
11-18 treatment and that leave would exceed 20 percent of the total
11-19 number of working days in the applicable academic period, the
11-20 school may require that the employee elect to:
11-21 (1) take the leave in periods of a particular
11-22 duration, not to exceed the duration of the planned medical
11-23 treatment; or
11-24 (2) transfer temporarily to an available alternative
11-25 position offered by the employer for which the employee is
11-26 qualified and that:
11-27 (A) has equivalent pay and benefits; and
12-1 (B) better accommodates recurring periods of
12-2 leave than the regular employment position of the employee.
12-3 (c) An employee who makes an election under Subsection (b)
12-4 must comply with Section 84.006(b).
12-5 (d) This subsection applies to periods of leave requested
12-6 near the conclusion of an academic term in the case of an eligible
12-7 employee employed principally in an instructional capacity by a
12-8 school. If the eligible employee begins leave under Section 84.003
12-9 more than five weeks before the end of the academic term, the
12-10 school may require the employee to continue taking leave until the
12-11 end of that term if the leave lasts at least three weeks and the
12-12 return to employment would occur during the last three weeks of the
12-13 term. If the eligible employee begins leave under Section
12-14 84.003(a)(1), (2), or (3) during the period that begins five weeks
12-15 before the end of the academic term, the school may require the
12-16 employee to continue taking leave until the end of that term if the
12-17 leave is longer than two weeks and the return to employment would
12-18 occur during the last two weeks of the term. If the eligible
12-19 employee begins leave under Section 84.003(a)(1), (2), or (3)
12-20 during the three weeks before the end of the academic term and the
12-21 leave lasts longer than five working days, the school may require
12-22 the employee to continue to take leave until the end of the term.
12-23 (e) The determination required under Section 84.009(a) as to
12-24 placement in an equivalent position of employment shall be made on
12-25 the basis of established public school district policies and
12-26 practices, private school policies and practices, and any
12-27 applicable collective bargaining agreements.
13-1 Sec. 84.012. COMMISSION POWERS AND DUTIES. (a) The
13-2 commission shall adopt rules as necessary to implement this
13-3 chapter. In adopting rules under this section, the commission may
13-4 not adopt a rule that is inconsistent with:
13-5 (1) the Family and Medical Leave Act of 1993 (29
13-6 U.S.C. Section 2601 et seq.); or
13-7 (2) a federal rule or regulation adopted under that
13-8 Act.
13-9 (b) To ensure compliance with the provisions of this chapter
13-10 or any rule adopted under this chapter, the commission may conduct
13-11 investigations of employers subject to this chapter. Each employer
13-12 subject to this chapter shall maintain records in accordance with
13-13 rules adopted by the commission.
13-14 (c) The commission may not require an employer to submit
13-15 under this section books, records, or other information more
13-16 frequently than annually, unless the commission:
13-17 (1) has reasonable cause to believe that the affected
13-18 employer has violated this chapter or a rule adopted under this
13-19 chapter; or
13-20 (2) is investigating a charge under Section 84.014.
13-21 (d) For the purposes of any investigation conducted under
13-22 this section, the commission may exercise the subpoena authority
13-23 granted under Subchapter E, Chapter 301.
13-24 Sec. 84.013. 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 chapter.
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 chapter.
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 chapter;
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 chapter; or
14-10 (3) testified, or is about to testify, in an inquiry
14-11 or proceeding relating to a right provided under this chapter.
14-12 Sec. 84.014. ENFORCEMENT. (a) An employer who violates
14-13 Section 84.013 is liable to an affected eligible employee for
14-14 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), computed at the prevailing rate of interest on
14-25 judgments; and
14-26 (3) an additional amount as liquidated damages equal
14-27 to the sum of the amount determined under Subdivision (1) and the
15-1 interest determined under Subdivision (2), provided that if an
15-2 employer who has violated Section 84.013 proves to the satisfaction
15-3 of the court that the act or omission that violated Section 84.013
15-4 was in good faith and that the employer had reasonable grounds for
15-5 believing that the act or omission was not a violation, the court
15-6 may reduce the amount of damages to the amount determined under
15-7 Subdivisions (1) and (2).
15-8 (b) The employer is also liable for equitable relief as
15-9 appropriate, including employment, reinstatement, and promotion.
15-10 (c) An action to recover damages or equitable relief under
15-11 this section may be maintained in a court of competent jurisdiction
15-12 by any one or more employees for and in behalf of those employees
15-13 or those employees and other employees similarly situated.
15-14 (d) In addition to any judgment awarded to the plaintiff,
15-15 the court may require the defendant to pay reasonable attorney's
15-16 fees, reasonable expert witness fees, and other costs.
15-17 (e) Unless the action is dismissed without prejudice on
15-18 motion of the commission, the right to bring an action under this
15-19 section terminates on:
15-20 (1) the filing of a complaint by the commission in an
15-21 action under Subsection (i) in which:
15-22 (A) restraint is sought of any further delay in
15-23 the payment of the damages described in Subsection (a); or
15-24 (B) equitable relief is sought as a result of
15-25 alleged violations of Section 84.013; or
15-26 (2) the filing of a complaint by the commission in an
15-27 action under Subsection (f) in which a recovery is sought of the
16-1 damages described in Subsection (a).
16-2 (f) The commission shall receive, investigate, and attempt
16-3 to resolve complaints of violations under Section 84.013 in the
16-4 same manner that the commission receives, investigates, and
16-5 attempts to resolve complaints of violations under Chapter 61.
16-6 (g) The commission may bring an action in a court of
16-7 competent jurisdiction to recover on behalf of an eligible employee
16-8 the damages described in Subsection (a). Any amount recovered by
16-9 the commission on behalf of an employee under this subsection shall
16-10 be held in a special deposit account and shall be paid, on order of
16-11 the commission, directly to each affected employee. Any amount not
16-12 paid to an employee within three years of receipt because of
16-13 inability to make the payment shall be deposited in the state
16-14 treasury to the credit of the general revenue fund.
16-15 (h) Except as otherwise provided by this subsection, an
16-16 action must be brought under this section not later than the second
16-17 anniversary of the date of the last event constituting the alleged
16-18 violation for which the action is brought. If the action alleges a
16-19 wilful violation of Section 84.013, the action must be brought not
16-20 later than the third anniversary of the date of the last event
16-21 constituting the alleged violation. In determining for the
16-22 purposes of this subsection when an action is begun by the
16-23 commission under Subsection (f), the action is begun on the date on
16-24 which the complaint is filed.
16-25 (i) In addition to an action to recover damages, the
16-26 commission may bring an action to restrain violations of Section
16-27 84.013, including an action to restrain the withholding of payment
17-1 of wages, salary, employment benefits, or other compensation, plus
17-2 interest, found by the court to be due to eligible employees.
17-3 SECTION 2. EFFECTIVE DATE. (a) This Act takes effect
17-4 September 1, 1997.
17-5 (b) An employee is not entitled to take leave as provided by
17-6 Section 84.004, Labor Code, as added by this Act, before January 1,
17-7 1998.
17-8 (c) The Texas Workforce Commission shall adopt rules and
17-9 prescribe notices and forms as required by Chapter 84, Labor Code,
17-10 as added by this Act, not later than November 1, 1997.
17-11 SECTION 3. EMERGENCY. The importance of this legislation
17-12 and the crowded condition of the calendars in both houses create an
17-13 emergency and an imperative public necessity that the
17-14 constitutional rule requiring bills to be read on three several
17-15 days in each house be suspended, and this rule is hereby suspended.