By Garcia, et al. H.B. No. 2400 75R8417 PB-D 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. This chapter applies 2-26 to each employer who employs 50 or more employees in this state. 2-27 Sec. 84.003. FAMILY AND MEDICAL LEAVE. (a) Except as 3-1 provided by Section 84.008, an eligible employee is entitled to a 3-2 total of 12 workweeks of leave during any 12-month period because 3-3 of one or more of the following: 3-4 (1) the birth of a child of the employee if the leave 3-5 is required to care for that child; 3-6 (2) the placement of a child with the employee for 3-7 adoption or foster care; 3-8 (3) to care for the spouse, child, or parent of the 3-9 employee, if the spouse, child, or parent has a serious health 3-10 condition; or 3-11 (4) a serious health condition that makes the employee 3-12 unable to perform the functions of the position of employment of 3-13 the employee. 3-14 (b) Entitlement to leave under Subsection (a) for a birth or 3-15 placement of a child expires on the first anniversary of the date 3-16 of the birth or placement. 3-17 (c) An employee may not take leave under Subsection (a)(1) 3-18 or (a)(2) intermittently unless the employee and the employer of 3-19 the employee agree in writing to that leave. An employee may take 3-20 leave under Subsection (a)(3) or (a)(4) intermittently when that 3-21 leave is medically necessary. 3-22 (d) If an employee requests intermittent leave under 3-23 Subsection (a)(3) or (a)(4) that is foreseeable because of planned 3-24 medical treatment, the employer may require the employee to 3-25 transfer temporarily to an available alternative position offered 3-26 by the employer for which the employee is qualified and that: 3-27 (1) has equivalent pay and benefits; and 4-1 (2) better accommodates recurring periods of leave 4-2 than the regular employment position of the employee. 4-3 (e) On the written agreement of the employer and the 4-4 employee, an employee may take leave under Subsection (a) on a 4-5 reduced leave schedule. Work performed by an employee on a reduced 4-6 leave schedule does not reduce the total amount of leave to which 4-7 the employee is entitled under Subsection (a). 4-8 (f) Each employer shall post in conspicuous places on the 4-9 premises of the employer where notices to employees and applicants 4-10 for employment are customarily posted, a notice, prepared or 4-11 approved by the commission, setting forth the pertinent provisions 4-12 of this chapter and information relating to the enforcement of this 4-13 chapter. An employer who wilfully violates this subsection is 4-14 liable for a civil penalty not to exceed $100 for each violation. 4-15 The attorney general may bring an action to collect a civil penalty 4-16 under this section. Civil penalties assessed under this section 4-17 shall be deposited in the general revenue fund. 4-18 Sec. 84.004. UNPAID LEAVE PERMITTED. (a) Except as 4-19 provided by Subsection (b), leave granted under Section 84.003 may 4-20 consist of unpaid leave. 4-21 (b) If an employer provides paid leave for fewer than 12 4-22 workweeks, any additional weeks of leave necessary to comply with 4-23 the 12 workweeks of leave required under this chapter may be 4-24 provided by the employer without compensation. 4-25 Sec. 84.005. SUBSTITUTION OF PAID LEAVE. (a) An eligible 4-26 employee may elect, or an employer may require an employee, to 4-27 substitute accrued paid vacation leave, personal leave, or other 5-1 leave for leave provided under Section 84.003(a)(1), (2), or (3) 5-2 for any part of the 12 weeks of leave required under Section 5-3 84.003. 5-4 (b) An eligible employee may elect, or an employer may 5-5 require an employee, to substitute accrued paid vacation leave, 5-6 personal leave, or medical or sick leave for leave provided under 5-7 Section 84.003(a)(3) or (4) for any part of the 12 weeks of leave 5-8 required under Section 84.003. However, this chapter does not 5-9 require an employer to provide paid sick leave or paid medical 5-10 leave in any situation in which that employer would not normally 5-11 provide paid leave. 5-12 Sec. 84.006. FORESEEABILITY OF LEAVE; NOTICE. (a) If the 5-13 necessity for leave under Section 84.003(a)(1) or (2) is 5-14 foreseeable because of an expected birth or adoption, the affected 5-15 employee shall, at least 30 days before the date the leave is to 5-16 begin, notify the employer in writing of the employee's intention 5-17 to take the leave. If the date of the birth or adoption requires 5-18 that the leave begin in less than 30 days, the employee shall 5-19 provide notice to the employer as is practicable. 5-20 (b) If the necessity for leave under Section 84.003(a)(3) or 5-21 (4) is foreseeable because of planned medical treatment, the 5-22 employee shall: 5-23 (1) make a reasonable effort to schedule the treatment 5-24 to avoid disrupting unduly the operations of the employer, subject 5-25 to the approval of the health care provider of the employee or of 5-26 the child, spouse, or parent of the employee, as applicable; and 5-27 (2) at least 30 days before the date the leave is to 6-1 begin, notify the employer in writing of the employee's intention 6-2 to take the leave; provided that if the date of the treatment 6-3 requires that the leave begin in less than 30 days, the employee 6-4 shall provide notice to the employer as is practicable. 6-5 Sec. 84.007. SPOUSES EMPLOYED BY SAME EMPLOYER. If a 6-6 husband and wife entitled to leave under Section 84.003 are 6-7 employed by the same employer, the aggregate number of workweeks of 6-8 leave to which both may be entitled may be limited to 12 workweeks 6-9 during any 12-month period, if the leave is taken: 6-10 (1) under Section 84.003(a)(1) or (2); or 6-11 (2) to care for a sick parent under Section 6-12 84.003(a)(3). 6-13 Sec. 84.008. CERTIFICATION. (a) An employer may require 6-14 that a request for leave under Section 84.003(a)(3) or (4) be 6-15 certified by the health care provider of the eligible employee or 6-16 of the child, spouse, or parent of the employee, as appropriate. 6-17 The employee shall provide, in a timely manner, a copy of the 6-18 certification to the employer. 6-19 (b) Certification provided under Subsection (a) is 6-20 sufficient if it states: 6-21 (1) the date on which the serious health condition 6-22 began; 6-23 (2) the probable duration of the condition; 6-24 (3) the appropriate medical facts within the knowledge 6-25 of the health care provider regarding the condition; 6-26 (4) for purposes of leave under Section 84.003(a)(3), 6-27 a statement that the eligible employee is needed to care for the 7-1 child, spouse, or parent and an estimate of the amount of time that 7-2 the employee is needed to care for the child, spouse, or parent; 7-3 (5) for purposes of leave under Section 84.003(a)(4), 7-4 a statement that the employee is unable to perform the functions of 7-5 the position of employment; and 7-6 (6) for purposes of intermittent leave for planned 7-7 medical treatment, the dates on which the treatment is expected to 7-8 be given and the duration of the treatment. 7-9 (c) If the employer has reason to doubt the validity of the 7-10 certification provided under Subsection (a) for leave under Section 7-11 84.003(a)(3) or (4), the employer may require, at the expense of 7-12 the employer, that the eligible employee obtain the opinion of a 7-13 second health care provider designated or approved by the employer 7-14 concerning any information certified under Subsection (b). A 7-15 health care provider designated or approved under this subsection 7-16 may not be employed on a regular basis by the employer. 7-17 (d) If a second opinion obtained under Subsection (c) 7-18 differs from the opinion in the original certification provided 7-19 under Subsection (a), the employer may require, at the expense of 7-20 the employer, that the employee obtain the opinion of a third 7-21 health care provider designated or approved jointly by the employer 7-22 and the employee concerning the information certified under 7-23 Subsection (b). The opinion of the third health care provider is 7-24 final and binding on the employer and the employee. 7-25 (e) The employer may require that the eligible employee 7-26 obtain subsequent recertifications on a reasonable basis. 7-27 Sec. 84.009. EMPLOYMENT AND BENEFITS PROTECTION; EXCEPTION. 8-1 (a) An eligible employee who takes leave under Section 84.003 for 8-2 the intended purpose of the leave is entitled, on return from the 8-3 leave, to reinstatement in the former position of employment or an 8-4 equivalent position of employment with equivalent employment 8-5 benefits, pay, and other terms and conditions of employment. 8-6 (b) Leave taken under Section 84.003 may not result in the 8-7 loss of any employment benefit accrued before the date on which the 8-8 leave began. 8-9 (c) This section does not entitle an employee who is 8-10 reinstated in employment to: 8-11 (1) the accrual of seniority or other employment 8-12 benefits during any period of leave; or 8-13 (2) any right, benefit, or position of employment 8-14 other than any right, benefit, or position to which the employee 8-15 would have been entitled had the employee not taken the leave. 8-16 (d) As a condition of eligibility to return to employment 8-17 under Subsection (a), an employer may adopt a uniformly applied 8-18 practice or policy that requires an employee to receive 8-19 certification from a health care provider that the employee is able 8-20 to resume work. This subsection does not supersede a statute of 8-21 this state, an order or ordinance of a political subdivision of 8-22 this state, or a collective bargaining agreement that governs the 8-23 return to work of an employee taking leave under Section 8-24 84.003(a)(4). 8-25 (e) This section does not prohibit an employer from 8-26 requiring an employee on leave under Section 84.003 to report 8-27 periodically to the employer on the status and intention of the 9-1 employee to return to work. 9-2 (f) An employer is not required under this chapter to 9-3 reinstate an employee under Subsection (a) if the employee is a 9-4 salaried employee whose compensation from the employer is computed 9-5 to be in the highest 10 percent of compensation paid to the 9-6 employees employed by that employer within 75 miles of the facility 9-7 at which the employee is employed. 9-8 Sec. 84.010. MAINTENANCE OF HEALTH INSURANCE BENEFITS. (a) 9-9 Except as provided by Subsection (b), during any period that an 9-10 eligible employee takes leave under Section 84.003, the employer 9-11 shall maintain insurance coverage for that employee under any 9-12 applicable group health plan for the duration of the leave at the 9-13 level and under the conditions the coverage would have been 9-14 provided if the employee had continued in employment continuously 9-15 from the date on which the employee began the leave until the date 9-16 on which the employee returned to employment under Section 84.009. 9-17 (b) The employer may recover the premium that the employer 9-18 paid to maintain insurance coverage for the employee under the 9-19 group health plan during any period of unpaid leave taken under 9-20 Section 84.003 if the employee fails to return to work: 9-21 (1) after the period of leave to which the employee is 9-22 entitled has expired; and 9-23 (2) for a reason other than: 9-24 (A) the continuation, recurrence, or onset of a 9-25 serious health condition that entitles the employee to leave under 9-26 Section 84.003(a)(3) or (4); or 9-27 (B) other circumstances beyond the control of 10-1 the employee. 10-2 (c) An employer may require that a claim that an employee is 10-3 unable to return to work because of the continuation, recurrence, 10-4 or onset of a serious health condition be certified by: 10-5 (1) the health care provider of the eligible employee, 10-6 if the employee is unable to return to work because of a condition 10-7 specified under Section 84.003(a)(4); or 10-8 (2) the health care provider of the child, spouse, or 10-9 parent of the employee if the employee is unable to return to work 10-10 because of a condition specified under Section 84.003(a)(3). 10-11 (d) The employee shall provide, in a timely manner, a copy 10-12 of the certification to the employer. 10-13 (e) Certification required under Subsection (c)(1) is 10-14 sufficient if the certification states that a serious health 10-15 condition made the employee unable to perform the functions of the 10-16 position of employment on the date that the leave expired. 10-17 Certification required under Subsection (c)(2) is sufficient if the 10-18 certification states that the employee is needed to care for the 10-19 child, spouse, or parent because of the serious health condition in 10-20 effect on the date that the leave expired. 10-21 (f) For the purposes of this section, "group health plan" 10-22 has the meaning assigned by Section 5000(b)(1), Internal Revenue 10-23 Code of 1986 (26 U.S.C. Sec. 5000(b)(1)). 10-24 Sec. 84.011. APPLICATION TO EMPLOYEES OF CERTAIN EDUCATIONAL 10-25 INSTITUTIONS. (a) Except as otherwise provided by this section, 10-26 the rights, remedies, and procedures under this chapter apply to 10-27 the employees of a public or private elementary or secondary school 11-1 or school district. 11-2 (b) If an eligible employee employed principally in an 11-3 instructional capacity by a school requests leave under Section 11-4 84.003(a)(3) or (4) that is foreseeable because of planned medical 11-5 treatment and that leave would exceed 20 percent of the total 11-6 number of working days in the applicable academic period, the 11-7 school may require that the employee elect to: 11-8 (1) take the leave in periods of a particular 11-9 duration, not to exceed the duration of the planned medical 11-10 treatment; or 11-11 (2) transfer temporarily to an available alternative 11-12 position offered by the employer for which the employee is 11-13 qualified and that: 11-14 (A) has equivalent pay and benefits; and 11-15 (B) better accommodates recurring periods of 11-16 leave than the regular employment position of the employee. 11-17 (c) An employee who makes an election under Subsection (b) 11-18 must comply with Section 84.006(b). 11-19 (d) This subsection applies to periods of leave requested 11-20 near the conclusion of an academic term in the case of an eligible 11-21 employee employed principally in an instructional capacity by a 11-22 school. If the eligible employee begins leave under Section 84.003 11-23 more than five weeks before the end of the academic term, the 11-24 school may require the employee to continue taking leave until the 11-25 end of that term if the leave lasts at least three weeks and the 11-26 return to employment would occur during the last three weeks of the 11-27 term. If the eligible employee begins leave under Section 12-1 84.003(a)(1), (2), or (3) during the period that begins five weeks 12-2 before the end of the academic term, the school may require the 12-3 employee to continue taking leave until the end of that term if the 12-4 leave is longer than two weeks and the return to employment would 12-5 occur during the last two weeks of the term. If the eligible 12-6 employee begins leave under Section 84.003(a)(1), (2), or (3) 12-7 during the three weeks before the end of the academic term and the 12-8 leave lasts longer than five working days, the school may require 12-9 the employee to continue to take leave until the end of the term. 12-10 (e) The determination required under Section 84.009(a) as to 12-11 placement in an equivalent position of employment shall be made on 12-12 the basis of established public school district policies and 12-13 practices, private school policies and practices, and any 12-14 applicable collective bargaining agreements. 12-15 Sec. 84.012. COMMISSION POWERS AND DUTIES. (a) The 12-16 commission shall adopt rules as necessary to implement this 12-17 chapter. 12-18 (b) To ensure compliance with the provisions of this chapter 12-19 or any rule adopted under this chapter, the commission may conduct 12-20 investigations of employers subject to this chapter. Each employer 12-21 subject to this chapter shall maintain records in accordance with 12-22 rules adopted by the commission. 12-23 (c) The commission may not require an employer to submit 12-24 under this section books, records, or other information more 12-25 frequently than annually, unless the commission: 12-26 (1) has reasonable cause to believe that the affected 12-27 employer has violated this chapter or a rule adopted under this 13-1 chapter; or 13-2 (2) is investigating a charge under Section 84.014. 13-3 (d) For the purposes of any investigation conducted under 13-4 this section, the commission may exercise the subpoena authority 13-5 granted under Subchapter E, Chapter 301. 13-6 Sec. 84.013. PROHIBITED ACTS. (a) An employer may not 13-7 interfere with, restrain, or deny the exercise of or the attempt to 13-8 exercise any right provided under this chapter. 13-9 (b) An employer may not discharge or otherwise discriminate 13-10 against any individual for opposing a practice made unlawful by 13-11 this chapter. 13-12 (c) A person may not discharge or otherwise discriminate 13-13 against an individual because that individual has: 13-14 (1) filed a charge, or instituted or caused to be 13-15 instituted a proceeding, under or related to this chapter; 13-16 (2) given, or is about to give, any information in 13-17 connection with an inquiry or proceeding relating to a right 13-18 provided under this chapter; or 13-19 (3) testified, or is about to testify, in an inquiry 13-20 or proceeding relating to a right provided under this chapter. 13-21 Sec. 84.014. ENFORCEMENT. (a) An employer who violates 13-22 Section 84.013 is liable to an affected eligible employee for 13-23 damages equal to the amount of: 13-24 (1) any wages, salary, employment benefits, or other 13-25 compensation denied or lost to the employee by reason of the 13-26 violation, or, if wages, salary, employment benefits, or other 13-27 compensation have not been denied or lost to the employee, any 14-1 actual monetary losses sustained by the employee as a direct result 14-2 of the violation, including the cost of providing necessary care, 14-3 not to exceed an amount equal to the employee's wages or salary for 14-4 12 weeks; 14-5 (2) interest on the amount determined under 14-6 Subdivision (1), computed at the prevailing rate of interest on 14-7 judgments; and 14-8 (3) an additional amount as liquidated damages equal 14-9 to the sum of the amount determined under Subdivision (1) and the 14-10 interest determined under Subdivision (2), provided that if an 14-11 employer who has violated Section 84.013 proves to the satisfaction 14-12 of the court that the act or omission that violated Section 84.013 14-13 was in good faith and that the employer had reasonable grounds for 14-14 believing that the act or omission was not a violation, the court 14-15 may reduce the amount of damages to the amount determined under 14-16 Subdivisions (1) and (2). 14-17 (b) The employer is also liable for equitable relief as 14-18 appropriate, including employment, reinstatement, and promotion. 14-19 (c) An action to recover damages or equitable relief under 14-20 this section may be maintained in a court of competent jurisdiction 14-21 by any one or more employees for and in behalf of those employees 14-22 or those employees and other employees similarly situated. 14-23 (d) In addition to any judgment awarded to the plaintiff, 14-24 the court may require the defendant to pay reasonable attorney's 14-25 fees, reasonable expert witness fees, and other costs. 14-26 (e) Unless the action is dismissed without prejudice on 14-27 motion of the commission, the right to bring an action under this 15-1 section terminates on: 15-2 (1) the filing of a complaint by the commission in an 15-3 action under Subsection (i) in which: 15-4 (A) restraint is sought of any further delay in 15-5 the payment of the damages described in Subsection (a); or 15-6 (B) equitable relief is sought as a result of 15-7 alleged violations of Section 84.013; or 15-8 (2) the filing of a complaint by the commission in an 15-9 action under Subsection (f) in which a recovery is sought of the 15-10 damages described in Subsection (a). 15-11 (f) The commission shall receive, investigate, and attempt 15-12 to resolve complaints of violations under Section 84.013 in the 15-13 same manner that the commission receives, investigates, and 15-14 attempts to resolve complaints of violations under Chapter 61. 15-15 (g) The commission may bring an action in a court of 15-16 competent jurisdiction to recover on behalf of an eligible employee 15-17 the damages described in Subsection (a). Any amount recovered by 15-18 the commission on behalf of an employee under this subsection shall 15-19 be held in a special deposit account and shall be paid, on order of 15-20 the commission, directly to each affected employee. Any amount not 15-21 paid to an employee within three years of receipt because of 15-22 inability to make the payment shall be deposited in the state 15-23 treasury to the credit of the general revenue fund. 15-24 (h) Except as otherwise provided by this subsection, an 15-25 action must be brought under this section not later than the second 15-26 anniversary of the date of the last event constituting the alleged 15-27 violation for which the action is brought. If the action alleges a 16-1 wilful violation of Section 84.013, the action must be brought not 16-2 later than the third anniversary of the date of the last event 16-3 constituting the alleged violation. In determining for the 16-4 purposes of this subsection when an action is begun by the 16-5 commission under Subsection (f), the action is begun on the date on 16-6 which the complaint is filed. 16-7 (i) In addition to an action to recover damages, the 16-8 commission may bring an action to restrain violations of Section 16-9 84.013, including an action to restrain the withholding of payment 16-10 of wages, salary, employment benefits, or other compensation, plus 16-11 interest, found by the court to be due to eligible employees. 16-12 SECTION 2. EFFECTIVE DATE. (a) This Act takes effect 16-13 September 1, 1997. 16-14 (b) An employee is not entitled to take leave as provided by 16-15 Section 84.004, Labor Code, as added by this Act, before January 1, 16-16 1998. 16-17 (c) The Texas Workforce Commission shall adopt rules and 16-18 prescribe notices and forms as required by Chapter 84, Labor Code, 16-19 as added by this Act, not later than November 1, 1997. 16-20 SECTION 3. EMERGENCY. The importance of this legislation 16-21 and the crowded condition of the calendars in both houses create an 16-22 emergency and an imperative public necessity that the 16-23 constitutional rule requiring bills to be read on three several 16-24 days in each house be suspended, and this rule is hereby suspended. 16-25 COMMITTEE AMENDMENT NO. 1 16-26 Amend H.B. 2400 on page 12, line 17, by inserting the 16-27 following after "chapter.": 17-1 In adopting rules under this section, the commission may not adopt 17-2 a rule that is inconsistent with: 17-3 (1) the Family and Medical Leave Act of 1993 (29 17-4 U.S.C. Sec. 2601 et seq.); or 17-5 (2) a federal rule or regulation adopted under that 17-6 Act. 17-7 75R10982 PB-F Yarbrough 17-8 COMMITTEE AMENDMENT NO. 2 17-9 Amend H.B. 2400 as follows: 17-10 (1) On page 2, line 25, strike "CHAPTER." and substitute 17-11 "CHAPTER; ELIGIBLE EMPLOYEES. (a)". 17-12 (2) On page 2, between lines 26 and 27, insert the 17-13 following: 17-14 (b) To be eligible for family and medical leave from an 17-15 employer under this chapter, an employee must: 17-16 (1) be employed for at least 12 months by the employer 17-17 from whom the leave is requested; and 17-18 (2) work for at least 1,250 hours for that employer 17-19 during those 12 months. 17-20 (c) Notwithstanding Subsections (a) and (b), an employee who 17-21 is employed at a worksite of an employer at which the employer 17-22 employs fewer than 50 employees is not eligible for family and 17-23 medical leave under this chapter if the total number of employees 17-24 employed by that employer within 75 miles of that worksite is fewer 17-25 than 50 employees. 17-26 75R10981 PB-F Yarbrough