SB1190sam001 98TH GENERAL ASSEMBLY

Sen. Toi W. Hutchinson

Filed: 3/20/2013

09800SB1190sam001 LRB098 06898 JLS 43333 a

AMENDMENT TO SENATE BILL 1190

AMENDMENT NO. ______. Amend Senate Bill 1190 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Family Care Provider Act.

Section 5. Purpose. It is the purpose of this Act that all employers required to comply with the Family and Medical Leave Act of 1993, 29 U.S.C. 2601, et seq., shall include grandparents and grandchildren as "eligible employees" for leave for the birth or adoption of a grandchild in order for the grandparent to care for that grandchild; for the placement of a grandchild with the grandparent for adoption or foster care; for the grandparent to care for the grandchild if that grandchild has a serious health condition; or for the grandchild to care for the grandparent if the grandparent has a serious health condition.

Section 10. Definitions. For the purposes of this Act:

"Department" means the Department of Labor.

"Director" means the Director of the Department of Labor.

"Eligible employee" means an employee who has been employed for (i) at least 12 months by the employer with respect to whom leave is requested under this Act and (ii) has at least 1,250 hours of service with that employer during the previous 12-month period.

"Eligible employee" does not include any employee of an employer who is employed at a worksite at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.

"Employee benefits" means all benefits, other than salary and wages, provided or made available to employees by an employer and includes group life insurance, health insurance, disability insurance, and pensions, regardless of whether benefits are provided by a policy or practice of an employer.

"Employer" has the meaning ascribed to that term in the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq.

"Grandparent" means a biological, adopted, or step grandparent of an employee or a grandparent who is physically residing with the employee.

"Grandchild" means a biological, adopted, or step grandchild of an employee or a grandchild who is physically residing with the employee.

Section 15. Scope. All employers required to comply with the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., are required to comply with this Act.

Section 20. Family leave requirement.

(a) Subject to the conditions set forth in this Section, an eligible employee is entitled to receive and each employer, as defined in Section 10 of this Act, must provide up to 12 weeks of unpaid family medical leave to an employee during any 12-month period for one or more of the following:

(1) the birth or adoption of a grandchild in order for the employee to care for the grandchild;

(2) the placement of a grandchild with the employee for adoption or foster care or the placement of a grandparent or grandchild to physically reside in the employee's home;

(3) the care for a grandchild if the grandchild has a serious health condition; or

(4) the care for a grandparent if the grandparent has a serious health condition.

(b) In any case in which the necessity for leave under this Section is foreseeable, the employee shall provide the employer with notice of the employee's intention to take leave under this Section at least 30 days before the leave is to begin. If the date of the birth, adoption, or placement requires leave to begin in fewer than 30 days or in the case of sudden medical emergency or health condition, the employee shall provide as much notice as is practicable. When able, the employee shall consult with the employer to schedule the leave so as to not unduly disrupt the operations of the employer.

(c) An employee shall not take leave as provided under this Act unless he or she has exhausted all accrued vacation leave, personal leave, compensatory leave, and any other leave that may be granted to the employee, except sick leave and disability leave.

Section 25. Certification.

(a) In general. An employer may require that a request for leave be supported by a certification issued by the health care provider of the eligible employee or of the grandparent or grandchild in the case of leave taken under such subsection (a)(3) or (a)(4) of Section 20, as appropriate. The employee shall provide, in a timely manner, a copy of the certification to the employer.

(b) Sufficient certification. Certification provided under subsection (a) of this Section shall be sufficient if it states:

(1) the date on which the serious health condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;

(4) for purposes of leave, a statement that the eligible employee is needed to care for the grandparent or grandchild and an estimate of the amount of time that the employee is needed to care for the grandchild or grandparent;

(5) in the case of certification for intermittent leave or leave on a reduced leave schedule for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment;

(6) in the case of certification for intermittent leave or leave on a reduced leave schedule, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule and the expected duration of the intermittent leave or reduced leave schedule; and

(7) in the case of certification for intermittent leave or leave on a reduced leave schedule, a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of a grandparent or grandchild, who has a serious health condition, or will assist in their recovery and the expected duration and schedule of the intermittent leave or reduced leave schedule.

(c) Second opinion.

(1) In general. In any case in which the employer has reason to doubt the validity of the certification for leave provided under subsection (a) of this Section, the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified as provided in subsection (b) of this Section for the leave.

(2) Limitation. A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer.

(d) Resolution of conflicting opinions.

(1) In general. In any case in which the second opinion described in subsection (c) of this Section differs from the opinion in the original certification provided under subsection (a) of this Section, the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified as provided in subsection (b) of this Section.

(2) Finality. The opinion of the third health care provider concerning the information certified as provided in subsection (b) of this Section shall be considered to be final and shall be binding on the employer and the employee.

(e) Subsequent recertification. The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.

Section 30. Employee benefits protection.

(a) Any employee who exercises the right to leave under this Act shall be entitled upon expiration of the leave to be restored by the employer to the position held by the employee when the leave commenced or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment. This Section does not apply if the employer proves that the employee was not restored as provided in this Section because of conditions unrelated to the employee's exercise of rights under this Act.

(b) During any leave taken under this Act, the employer shall continue employee benefits at the employer's expense.

Section 35. Effect on existing employee benefits.

(a) Taking leave under this Act shall not result in the loss of any employee benefit accrued before the date on which the leave commenced.

(b) Nothing in this Act shall be construed to affect an employer's obligation to comply with any collective bargaining agreement or employee benefit plan that provides greater leave rights to employees than the rights provided under this Act.

(c) The leave rights provided under this Act shall not be diminished by any collective bargaining agreement or employee benefit plan.

(d) Nothing in this Act shall be construed to affect or diminish the contract rights or seniority status of any other employee of any employer covered under this Act.

Section 40. Prohibited acts.

(a) An employer shall not interfere with, restrain, or deny the exercise or the attempt to exercise any right provided under this Act.

(b) An employer shall not discharge, fine, suspend, expel, discipline, or in any other manner discriminate against any employee that exercises any right provided under this Act.

(c) An employer shall not discharge, fine, suspend, expel, discipline, or in any other manner discriminate against any employee for opposing any practice made unlawful by this Act.

Section 45. Enforcement.

(a) The Director or his or her authorized representative shall administer and enforce the provisions of this Act. Within 3 years after an alleged violation occurs, any employee who believes his or her rights under this Act have been violated or his or her representative may file a complaint with the Department requesting a review of the alleged violation. A copy of the complaint shall be sent to the person who allegedly committed the violation, who shall be the respondent. Upon receipt of a complaint, the Director shall cause such investigation to be made as he or she deems appropriate. The investigation shall provide an opportunity for an administrative hearing at the request of any party to the review to enable the parties to present information relating to the alleged allegation.

A party may be accompanied at an administrative hearing by his or her attorney or other representative. The participation of the other representative in the informal hearing shall be limited to fact-finding and support functions. Other representatives shall not be permitted to engage in any conduct or function that constitutes or reasonably approximates the practice of law. Other representatives shall not examine or cross-examine any party or witness; offer any documents or other exhibits into evidence; make evidentiary, procedural, or other legal objections; cite, file, or interpret case law, statutes, administrative rulings, or other legal authority; make legal arguments or interpretations; or give legal advice or opinions to parties or witnesses. Other representatives must provide to the represented party for signature a written disclosure document that explicitly states that the representative is not an attorney and that the representative is not permitted to present legal arguments or otherwise engage in any function that reasonably approximates the practice of law as described in this subsection. The document shall be signed by both the representative and the represented party.

(b) The parties may bring witnesses to the hearing, and the hearing officer shall hear witnesses with information related to the claim. The hearing officer shall determine the order in which the witnesses are to be heard and shall limit testimony to that which is relevant and material to the claim, not cumulative in nature, and not unduly repetitious. In deciding whether to permit a witness to testify, the hearing officer may consider the relevance and materiality of the testimony. The hearing officer may exclude witnesses from the hearing when they are not giving testimony. The hearing officer shall conduct and control the proceedings.

The parties shall be given written notice of the time and place of the hearing at least 7 days before the hearing. Upon receiving the report of the investigation, the Director shall make findings of fact. If the Director finds that a violation did occur, he or she shall issue a decision incorporating his or her findings and requiring the party committing the violation to take such affirmative action to abate the violation as the Director deems appropriate, including:

(1) damages equal to the amount of wages, salary, employment benefits, public assistance, or other compensation denied or lost to such individual by reason of the violation and the interest on that amount calculated at the prevailing rate;

(2) such equitable relief as may be appropriate, including, but not limited to, hiring, reinstatement, promotion, and reasonable accommodations; and

(3) reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the respondent to a prevailing employee.

If the Director finds that there was no violation, he or she shall issue an order denying the complaint. An order issued by the Director under this Section shall be final and subject to judicial review under the Administrative Review Law.

(c) The Director shall adopt rules necessary to administer and enforce this Act in accordance with the Illinois Administrative Procedure Act. The Director shall have the powers and the parties shall have the rights provided in the Illinois Administrative Procedure Act for contested cases, including, but not limited to, provisions for depositions, subpoena power and procedures, and discovery and protective order procedures.

(d) The Department may establish an administrative procedure to adjudicate claims and to issue final and binding administrative decisions on such claims subject to the Administrative Review Law. To establish such a procedure, the Director or her or his authorized representative may promulgate rules. The adoption, amendment or rescission of rules for such a procedure shall be in conformity with the requirements of the Illinois Administrative Procedure Act.

(e) The Attorney General of Illinois may intervene on behalf of the Department if the Department certifies that the case is of general public importance. Upon such intervention the court may award such relief as is authorized to be granted to an employee who has filed a complaint or whose representative has filed a complaint under this Section.

Section 50. Refusal to pay damages. Any employer who has been ordered by the Director of Labor or the court to pay damages under this Section is liable for:

(1) damages equal to the amount of wages, salary, employment benefits, public assistance, or other compensation denied or lost to such individual by reason of the violation and the interest on that amount calculated at the prevailing rate;

(2) such equitable relief as may be appropriate; and

(3) reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the respondent to a prevailing employee.

Section 99. Effective date. This Act takes effect upon becoming law.".