80R6370 ABC-F
 
  By: Watson S.B. No. 996
 
 
 
   
 
 
A BILL TO BE ENTITLED
AN ACT
relating to employment leave to comply with certain family or
medical obligations; providing a civil penalty.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Subtitle D, Title 2, Labor Code, is amended by
adding Chapter 85 to read as follows:
CHAPTER 85.  EMPLOYEE LEAVE FOR FAMILY OR MEDICAL OBLIGATIONS
SUBCHAPTER A.  GENERAL PROVISIONS
       Sec. 85.001.  DEFINITIONS.  In this chapter:
             (1)  "Child" means a biological child, adopted or
foster child, stepchild, legal ward, or child of a person standing
in loco parentis who is:
                   (A)  under 18 years of age; or
                   (B)  18 years of age or older and incapable of
self-care because of a physical or mental disability or serious
health condition.
             (2)  "Commission" means the Texas Workforce
Commission.
             (3)  "Employee" means an individual who performs
services for an employer for compensation under an oral or written
contract of hire, whether express or implied. The term does not
include an independent contractor.
             (4)  "Employer" means a person who employs employees.
The term includes a public employer.
             (5)  "Employment benefits" means all benefits provided
by or made available to employees by an employer. The term includes
group life insurance, health insurance, disability insurance, sick
leave, annual leave, educational benefits, and pensions whether the
benefits are provided by a practice or written policy of an employer
or through an employee benefit plan.
             (6)  "Grandparent" means the parent of a parent of an
employee.
             (7)  "Grandparent-in-law" means the parent of a parent
of an employee's spouse.
             (8)  "Health care provider" means:
                   (A)  a licensed individual who provides or renders
health care; or
                   (B)  an unlicensed individual who provides or
renders health care under the direction or supervision of a
physician.
             (9)  "Parent" means:
                   (A)  the biological parent of an employee; or
                   (B)  an individual who stood in loco parentis to
an employee when the employee was a child.
             (10)  "Parent-in-law" means the parent of an employee's
spouse.
             (11)  "Serious health condition" means an illness,
injury, impairment, or physical or mental condition that requires
inpatient care in a hospital, hospice, or residential medical care
facility or continuing treatment by a health care provider. The
term includes a serious disease such as cancer or acquired immune
deficiency syndrome.
[Sections 85.002-85.050 reserved for expansion]
SUBCHAPTER B.  FAMILY AND MEDICAL LEAVE
       Sec. 85.051.  APPLICATION OF SUBCHAPTER. This subchapter
applies to each employer who employs 50 or more employees in this
state.
       Sec. 85.052.  FAMILY AND MEDICAL LEAVE.  An eligible
employee is entitled to use the employee's choice of accrued paid
sick leave or other accrued paid leave to care for the following
individuals:
             (1)  the employee's child;
             (2)  the employee's spouse;
             (3)  the employee's parent or parent-in-law; or
             (4)  the employee's grandparent or grandparent-in-law.
       Sec. 85.053.  NOTICE; CIVIL PENALTY.  (a)  Each employer
shall post in conspicuous places on the premises of the employer
where notices to employees and applicants for employment are
customarily posted a notice, prepared or approved by the
commission, setting forth the pertinent provisions of this
subchapter and information relating to the enforcement of this
subchapter.
       (b)  An employer who wilfully violates this subsection is
liable for a civil penalty not to exceed $100 for each violation.
The attorney general may bring an action to collect a civil penalty
under this section. Civil penalties assessed under this section
shall be deposited in the general revenue fund.
       Sec. 85.054.  INSTITUTION OF PAID LEAVE PROGRAM NOT
REQUIRED.  This subchapter does not require an employer who does
not provide paid sick leave or other paid medical leave to institute
a program of paid leave for any situation in which that employer is
not normally providing paid leave.
       Sec. 85.055.  FORESEEABILITY OF LEAVE; NOTICE TO EMPLOYER.
(a) If the necessity for leave under Section 85.052 is reasonably
foreseeable, the affected employee shall provide notice to the
employer as is practicable.
       (b)  If the necessity for leave under Section 85.052 is
foreseeable because of planned medical treatment, the employee
shall make a reasonable effort to schedule the treatment to avoid
disrupting unduly the operations of the employer, subject to the
approval of the health care provider of the employee or of the
child, spouse, or parent of the employee, as applicable.
       Sec. 85.056.  CERTIFICATION. (a) An employer may require
that a request for leave under Section 85.052 be certified by the
health care provider of the employee or of the child, spouse,
parent, parent-in-law, grandparent, or grandparent-in-law of the
employee, as appropriate. The employee shall provide, in a timely
manner, a copy of the certification to the employer.
       (b)  Certification provided under Subsection (a) is
sufficient if it states:
             (1)  the date on which the serious health condition
began;
             (2)  the probable duration of the condition;
             (3)  the appropriate medical facts within the knowledge
of the health care provider regarding the condition; and
             (4)  a statement that the eligible employee is needed
to care for the child, spouse, parent, parent-in-law, grandparent,
or grandparent-in-law and an estimate of the amount of time that the
employee is needed to care for that individual.
       Sec. 85.057.  EMPLOYMENT AND BENEFITS PROTECTION;
EXCEPTION. (a) An employee who takes leave under Section 85.052 is
entitled, on return from the leave, to reinstatement in the former
position of employment or an equivalent position of employment with
equivalent employment benefits, pay, and other terms and conditions
of employment.
       (b)  Leave taken under Section 85.052 may not result in the
loss of any employment benefit accrued before the date on which the
leave began.
       (c)  This section does not entitle an employee who is
reinstated in employment to:
             (1)  the accrual of seniority or other employment
benefits during any period of leave; or
             (2)  any right, benefit, or position of employment
other than any right, benefit, or position to which the employee
would have been entitled had the employee not taken the leave.
       (d)  This section does not prohibit an employer from
requiring an employee on leave under Section 85.052 to report
periodically to the employer on the status and intention of the
employee to return to work.
       Sec. 85.058.  COMMISSION POWERS AND DUTIES. The commission
shall adopt rules as necessary to implement this subchapter.
       Sec. 85.059.  PROHIBITED ACTS. (a) An employer may not
interfere with, restrain, or deny the exercise of or the attempt to
exercise any right provided under this subchapter.
       (b)  An employer may not discharge or otherwise discriminate
against an individual for opposing a practice made unlawful by this
subchapter.
       (c)  A person may not discharge or otherwise discriminate
against an individual because that individual has:
             (1)  filed a charge, or instituted or caused to be
instituted a proceeding, under or related to this subchapter;
             (2)  given, or is about to give, any information in
connection with an inquiry or proceeding relating to a right
provided under this subchapter; or
             (3)  testified, or is about to testify, in an inquiry or
proceeding relating to a right provided under this subchapter.
       Sec. 85.060.  ENFORCEMENT. (a) An employer who violates
Section 85.059 is liable to an affected individual for damages
equal to the amount of:
             (1)  any wages, salary, employment benefits, or other
compensation denied or lost to the individual by reason of the
violation or, if wages, salary, employment benefits, or other
compensation has not been denied or lost, any actual monetary
losses sustained by the individual as a direct result of the
violation, including the cost of providing necessary care, not to
exceed an amount equal to the individual's wages or salary for 12
weeks;
             (2)  interest on the amount determined under
Subdivision (1) computed at the prevailing rate of interest on
judgments; and
             (3)  an additional amount as liquidated damages equal
to the sum of the amount determined under Subdivision (1) and the
interest determined under Subdivision (2).
       (b)  If an employer who has violated Section 85.059 proves to
the satisfaction of the court that the act or omission that violated
Section 85.059 was in good faith and that the employer had
reasonable grounds for believing that the act or omission was not a
violation, the court may reduce the amount of damages to the amount
determined under Subsections (a)(1) and (2).
       (c)  The employer is also liable for equitable relief as
appropriate, including employment, reinstatement, and promotion.
       (d)  An action to recover damages or equitable relief under
this section may be maintained by any one or more individuals for
and on behalf of those individuals.
       (e)  In addition to any judgment awarded to the plaintiff,
the court may require the defendant to pay reasonable attorney's
fees, reasonable expert witness fees, and other costs.
       (f)  Unless the action is dismissed without prejudice on
motion of the commission, the right to bring an action under this
section terminates on:
             (1)  the filing of a complaint by the commission in an
action under Subsection (j) in which:
                   (A)  restraint is sought of any further delay in
the payment of the damages described in Subsection (a); or
                   (B)  equitable relief is sought as a result of
alleged violations of Section 85.059; or
             (2)  the filing of a complaint by the commission in an
action under Subsection (h) in which a recovery is sought of the
damages described in Subsection (a).
       (g)  The commission shall receive, investigate, and attempt
to resolve complaints of violations under Section 85.059 in the
same manner that the commission receives, investigates, and
attempts to resolve complaints of violations under Chapter 61.
       (h)  The commission may bring an action to recover on behalf
of an individual the damages described in Subsection (a). Any
amount recovered by the commission on behalf of an individual under
this subsection shall be held in a special deposit account and shall
be paid, on order of the commission, directly to the individual. Any
amount not paid to the individual within three years of receipt
because of inability to make the payment shall be deposited in the
state treasury to the credit of the general revenue fund.
       (i)  Except as otherwise provided by this subsection, an
action must be brought under this section not later than the second
anniversary of the date of the last event constituting the alleged
violation for which the action is brought. If the action alleges a
wilful violation of Section 85.059, the action must be brought not
later than the third anniversary of the date of the last event
constituting the alleged violation. For the purposes of this
subsection, an action is begun by the commission under Subsection
(h) on the date on which the complaint is filed under Subsection
(g).
       (j)  In addition to an action to recover damages, the
commission may bring an action to restrain violations of Section
85.059, including an action to restrain the withholding of payment
of wages, salary, employment benefits, or other compensation, plus
interest, found by the court to be due to eligible employees.
       SECTION 2.  (a) This Act applies only to a suspension,
termination, or other adverse employment action that is taken by an
employer against an employee because of an employee absence
authorized under Chapter 85, Labor Code, as added by this Act, that
occurs on or after January 1, 2008. Action taken by an employer
against an employee for an employee absence occurring before
January 1, 2008, is governed by the law in effect immediately before
the effective date of this Act, and the former law is continued in
effect for that purpose.
       (b)  An employee is not entitled to take leave as provided by
Chapter 85, Labor Code, as added by this Act, before January 1,
2008.
       (c)  The Texas Workforce Commission shall adopt rules and
prescribe notices and forms as required by Chapter 85, Labor Code,
as added by this Act, not later than November 1, 2007.
       SECTION 3.  This Act takes effect September 1, 2007.