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.