By Garcia                                       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.