Illinois General Assembly - Full Text of HB1683
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Full Text of HB1683  95th General Assembly



State of Illinois
2007 and 2008


Introduced 2/22/2007, by Rep. Julie Hamos - Barbara Flynn Currie


New Act

    Creates the Family Leave Insurance Program Act. Establishes a Family Leave Insurance Program, administered by the Department of Employment Security, to provide paid leave to an employee who is unavailable to work: because the employee has to care for a newborn child or a newly-placed adopted or foster child; because the employee has to care for a family member (a child, spouse, parent, or parent-in-law of the employee or a person with whom the employee has resided in the same household for 6 months or longer) who has a serious health condition; or because of the employee's own serious health condition. Contains provisions regarding: applications and qualifications for benefits, certification by a healthcare provider of the need for leave; confidentiality; notices of intention to take leave; disqualification from benefits; duration of benefits; determination of benefit amounts; deductions from benefits; relationship of the Program to other benefits, programs, and contracts; rights of employees; opting out of participation in the Program; elective coverage under the Program; recordkeeping; successor employers; creation of a FLIP Account in the custody of the State Treasurer; payments by employers and employees; limits on expenditures; adoption of rules; taxation of benefits; discrimination; required postings regarding the Act and information pertaining to the filing of a charge; severability; and other matters. Effective January 1, 2008.

LRB095 08267 RLC 28439 b






HB1683 LRB095 08267 RLC 28439 b

1     AN ACT concerning employment.
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4     Section 1. Short title. This Act may be cited as the Family
5 Leave Insurance Program Act.
6     Section 5. Findings and purpose.
7     (A) Findings. The General Assembly finds:
8         (1) Although family leave laws have helped employees to
9     balance the demands of the workplace with their family
10     responsibilities, more needs to be done to achieve the
11     goals of workforce stability and economic security.
12         (2) Many employees do not have access to family and
13     medical leave, and those who do may not be in a financial
14     position to take leave that is unpaid. Those who are
15     compelled to take leave in spite of financial inability to
16     do so often fall into debt from which it is hard to
17     recover.
18         (3) Most families no longer have one person who is the
19     full-time caregiver and one who is the full-time
20     breadwinner.
21         (4) The majority of mothers with school-age children
22     are in the workforce.
23         (5) It is important for a child's development that



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1     mothers and fathers be able to participate in early
2     child-rearing.
3         (6) The average weekly hours of family caregiving for
4     adults amounts to a part-time job.
5         (7) Employer-paid benefits meet only a small part of
6     this need. Benefits are often given to some workers but not
7     all.
8         (8) The working population in Illinois contains a high
9     number of "baby boom" workers approaching retirement age,
10     who are increasingly called upon to care for their own
11     parents, an impaired spouse, or a grandchild. Older workers
12     need time off to care for themselves or rely on care from
13     younger relatives who are in the workforce. The
14     establishment of paid family and medical leave benefits
15     will ease workplace demands and reduce the impact on State
16     income-support programs by increasing the ability of
17     workers to recover from illness or provide caregiving
18     services for family members while maintaining employment.
19         (9) Employers will benefit from the establishment of a
20     family leave insurance program because of higher retention
21     rates and lower costs in turnover and retraining when
22     employees are able to take a leave and return to the job.
23         (10) Employers who could otherwise not afford to offer
24     paid leave will benefit from a paid leave program that does
25     not require them to fund the full costs.
26     (B) Purpose. This Act is enacted to establish a Family



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1 Leave Insurance Program to provide limited income support for a
2 reasonable period while an employee is away from work on family
3 leave, a policy which protects the health and safety of
4 Illinois residents and strengthens the Illinois economy.
5     Section 10. Family Leave Insurance Program.
6     (A) Definitions. As used this Act:
7         "Application year" means the 12-month period beginning
8     on the first day of the calendar week in which an employee
9     files an application for FLIP benefits and, thereafter, the
10     12-month period beginning with the first day of the
11     calendar week in which the employee files a subsequent
12     application for FLIP benefits after the expiration of the
13     employee's last preceding application year.
14         "Child" means a person who is a biological, adopted, or
15     foster child, a stepchild, a legal ward, or a child of a
16     person standing in loco parentis, and who is (i) under 18
17     years of age or (ii) 18 years of age or older and incapable
18     of self-care because of a mental or physical disability.
19         "Department" means the Department of Employment
20     Security.
21         "Employer" means one who employs one or more employees,
22     including this State and its political subdivisions.
23         "FLIP leave" means leave taken by an employee who is
24     unavailable to work: because the employee has to care for a
25     newborn child, or a newly-placed adopted or foster child



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1     (and leave is completed within 12 months after the birth or
2     the placement of the child for foster care or adoption);
3     because the employee has to care for a family member who
4     has a serious health condition; or because of the
5     employee's own serious health condition.
6         "Family member" means a child, spouse, parent, or
7     parent-in-law of the employee, or a person with whom the
8     employee has resided in the same household for 6 months or
9     longer.
10         "FLIP" means the Family Leave Insurance Program.
11         "Healthcare provider" means: (A) a person who directly
12     treats or supervises the treatment of the serious health
13     condition and: (i) is licensed to practice medicine in all
14     of its branches in Illinois and possesses the degree of
15     doctor of medicine; (ii) is licensed to practice medicine
16     in Illinois and possesses the degree of doctor of
17     osteopathy or osteopathic medicine; or (iii) is licensed to
18     practice medicine in all of its branches or as an
19     osteopathic physician in another state or jurisdiction; or
20     (B) any other person determined by the United States
21     Secretary of Labor to be capable of providing healthcare
22     services under the federal Family and Medical Leave Act.
23         "Parent" means a biological or adoptive parent, a
24     stepparent, or a person who stands in loco parentis to an
25     employee or an employee's spouse.
26         "Premium" means the money payments required by this Act



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1     to be made to the Department for the FLIP Account.
2         "Qualifying year" means the first 4 of the last 5
3     completed calendar quarters or the last 4 completed
4     calendar quarters immediately preceding the first day of
5     the employee's application year.
6         "Serious health condition" means an illness, injury,
7     impairment, or physical or mental condition that involves
8     inpatient care in a hospital, hospice, or residential
9     medical care facility, or continuing treatment by a
10     healthcare provider.
11     (B) Applying for FLIP leave benefits.
12         (1) The Department shall establish and administer a
13     FLIP Account, and establish procedures and forms for filing
14     benefit claims. The Department shall notify the employer
15     within 2 business days of a claim being filed.
16         (2) The Department may require that a claim for
17     benefits under this Act be supported by a certification
18     issued by a healthcare provider who is providing care to
19     the employee or the employee's family member, as
20     applicable.
21         (3) Information contained in the files and records
22     pertaining to an employee under this Act are confidential
23     and not open to public inspection, other than to public
24     employees in the performance of their official duties.
25     However, the employee or an authorized representative of an
26     employee may review the records or receive specific



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1     information from the records on the presentation of the
2     signed authorization of the employee. An employer or the
3     employer's duly authorized representative may review the
4     records of an employee in connection with a pending claim.
5     At the Department's discretion, other persons may review
6     records when those persons are rendering assistance to the
7     Department at any stage of the proceedings on any matter
8     pertaining to the administration of this Act.
9     (C) Qualifying for FLIP leave benefits. FLIP leave benefits
10 are payable to an employee during a period in which the
11 employee is on FLIP leave if the employee:
12         (1) Files a claim for benefits as required by rules
13     adopted by the Department.
14         (2) Has earned at least $1,600 and worked at least 6
15     months during the employee's qualifying year for the
16     employer from whom the employee is on FLIP leave.
17         (3) Documents that he or she has provided the employer
18     from whom FLIP leave is to be taken with written notice of
19     his or her intention to take FLIP leave as follows:
20             (a) If the necessity for FLIP leave was foreseeable
21         based on an expected birth, placement, or treatment,
22         notice was given at least 30 days before FLIP leave was
23         to begin, stating the anticipated starting date and
24         ending date of the leave.
25             (b) If the date of birth, placement, or treatment
26         requiring FLIP leave will begin in less than 30 days,



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1         as much notice as practicable was given.
2             (c) In the case of medical treatment, the employee
3         made reasonable efforts to schedule the treatment so as
4         not to unduly disrupt the operations of the employer,
5         subject to the approval of the healthcare provider.
6             (d) An employer may require that a request for FLIP
7         leave be supported by certification issued by a
8         healthcare provider of the employee or of the family
9         member for whom the employee is caring. If the employer
10         has reason to doubt the validity of the certification,
11         the employer may require, at the expense of the
12         employer, that the employee obtain the opinion of a
13         second healthcare provider approved by the employer.
14         However, the healthcare provider approved by the
15         employer may not be employed on a regular basis by the
16         employer. If the second opinion differs from the first
17         opinion, the employer may require, at the expense of
18         the employer, that the employee obtain the opinion of a
19         third healthcare provider approved jointly by the
20         employer and the employee. The opinion of the third
21         healthcare provider shall be considered to be final and
22         binding on the employer and employee.
23         (4) Discloses whether or not she or he owes child
24     support obligations.
25     (D) Disqualification from benefits.
26         (1) An employee is disqualified from FLIP benefits



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1     beginning with the first day of the calendar week, and
2     continuing for the next 52 consecutive weeks, if the
3     employee:
4             (a) willfully made a false statement or
5         misrepresentation regarding a material fact, or
6         willfully failed to report a material fact, to obtain
7         benefits under this Act; or
8             (b) seeks benefits based on a willful and
9         intentional self-inflicted serious health condition or
10         a serious health condition resulting from the
11         employee's perpetration of a felony.
12         (2) An employee is not disqualified for benefits for
13     any week during which there is a strike or lockout at the
14     factory, establishment, or other premises at which the
15     employee is or was last employed.
16     (E) Duration and amount of benefits.
17         (1) In an application year, FLIP benefits are payable
18     for a maximum of 4 weeks.
19         (2) Payments must be made within 2 weeks of an employee
20     commencing FLIP leave.
21         (3) FLIP benefits shall be paid as follows:
22             (a) Benefits shall be 67% of weekly wages up to a
23         maximum of $380 per week for an employee who at the
24         time FLIP leave began was regularly working 35 hours or
25         more per week or a pro-rated amount based on the weekly
26         hours regularly worked for an employee regularly



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1         working less than 35 hours per week.
2             (b) The Department annually shall calculate to the
3         nearest dollar an adjusted maximum benefit to account
4         for inflation using the consumer price index for urban
5         wage earners and clerical workers (CPI-W) or a
6         successor index.
7             (c) If an employee disclosed that he or she owes
8         child support obligations and the Department
9         determines that the employee is eligible for benefits,
10         the Department shall notify the applicable State or
11         local child support enforcement agency and deduct and
12         withhold from benefits the amount of child support
13         owed, as appropriate.
14             (d) If an employee elects to have federal income
15         tax deducted and withheld from benefits, the
16         Department shall deduct and withhold the amount
17         specified in the federal Internal Revenue Code.
18         (4) If FLIP benefits are paid erroneously or as a
19     result of fraud, or if a claim for benefits is rejected
20     after benefits are paid, the Department shall seek
21     repayment of benefits from the recipient.
22         (5) If an employee dies while on FLIP leave before
23     receiving payment of benefits, the payment shall be made by
24     the Department to the surviving spouse or the child or
25     children if there is no surviving spouse. If there is no
26     surviving spouse and no child or children, the payment



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1     shall be made and distributed consistent with the terms of
2     the decedent's will or, if the decedent dies intestate,
3     consistent with the terms of Illinois intestate succession
4     law.
5     (F) Existing benefits not diminished.
6         (1) Nothing in this Act may be construed to limit an
7     employee's right to leave from employment under other laws
8     or employer policy.
9         (2) If an employer provides paid time off or an
10     employee is covered by disability insurance, the employee
11     may elect whether first to use the paid time off or to
12     receive temporary disability benefits. An employee may not
13     be required to use his or her paid time off or disability
14     insurance to which he or she is entitled before receiving
15     benefits under this Act.
16         (3) An employer may require that FLIP leave for which
17     an employee is receiving or received benefits under this
18     Act be taken concurrently with leave under the federal
19     Family and Medical Leave Act or other applicable federal,
20     State, or local law, except that:
21             (a) FLIP leave during which the employee is
22         receiving or received benefits under this Act is in
23         addition to leave from employment during which
24         benefits are paid or are payable under workers'
25         compensation law and that is designated as leave under
26         the federal Family and Medical Leave Act.



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1             (b) If an employer requires that FLIP leave for
2         which an employee is receiving or received benefits
3         under this Act be taken concurrently with leave under
4         the federal Family and Medical Leave Act or other
5         applicable federal, State, or local law, the employer
6         must give all employees written notice of the
7         requirement.
8         (4) Benefits under this Act are supplementary to a
9     federal, State, or local law establishing similar
10     entitlement benefits, and if a federal, State, or local law
11     applying to the employee establishes a more favorable right
12     to return to his or her position than is established under
13     this Section, the application of that federal, State, or
14     local law is not affected by this Section.
15         (5) An employee who has received benefits under this
16     Act does not lose any employment benefit, including
17     seniority or pension rights accrued before the date that
18     FLIP leave commenced. However, this Act does not entitle an
19     employee to accrue employment benefits during a period of
20     FLIP leave or to a right, benefit, or position of
21     employment other than a right, benefit, or position to
22     which the employee would have been entitled had the
23     employee not taken FLIP leave.
24         (6) This Act may not be construed to diminish an
25     employer's obligation to comply with a collective
26     bargaining agreement or an employment benefit program or a



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1     plan that provides greater benefits to employees than FLIP
2     benefits provided under this Act.
3         (7) An agreement by an employee to waive his or her
4     rights under this Act is void as against public policy. The
5     benefits provided to employees under this Act may not be
6     diminished by a collective bargaining agreement or an
7     employment benefit program or plan entered into or renewed
8     after the effective date of this Act.
9     (G) Election of coverage.
10         (1) An employer may opt out of participation in FLIP
11     under this Act if:
12             (a) the employer is participating in a private plan
13         that meets or exceeds all benefits under FLIP; or
14             (b) the employer provides its own coverage that
15         meets or exceeds all benefits under FLIP.
16         (2) An employer of employees not covered by this Act or
17     a self-employed person may elect coverage under FLIP under
18     this Act for an initial period of not less than 3 years or
19     a subsequent period of not less than one year immediately
20     following another period of coverage. The employer or
21     self-employed person must file a notice of election in
22     writing with the Department. The election becomes
23     effective on the date of filing the notice. The Department
24     shall establish a payment amount for participation in FLIP
25     for self-employed people that is higher than for other
26     employers, to reflect that the self-employed person is both



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1     employer and employee for purposes of this Act.
2         (3) An employer or self-employed person who has elected
3     coverage may withdraw from coverage within 30 days after
4     the end of the three-year period of coverage, or at such
5     other times as the Department may prescribe by rule, by
6     filing written notice with the Department. The withdrawal
7     shall take effect not sooner than 30 days after the filing
8     of the notice.
9         (4) The Department may cancel elective coverage if the
10     employer or self-employed person fails to provide required
11     payments or reports. The Department may collect due and
12     unpaid premiums and may levy an additional premium for the
13     remainder of the period of coverage. The cancellation shall
14     be effective no later than 30 days from the date of the
15     notice in writing advising the employer or self-employed
16     person of the cancellation.
17     (H) Records and reports.
18         (1) The Department shall specify the forms and times
19     for employers to provide reports, furnish information, and
20     remit premiums. If the employer is a temporary services
21     agency that provides employees on a temporary basis to its
22     customers, the temporary services agency is considered the
23     employer for purposes of this Section. However, if the
24     temporary services agency fails to remit the required
25     premiums, the customer to whom the employees were provided
26     is liable for paying the premiums.



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1         (2) An employer must keep at its place of business a
2     record of employment from which the information needed by
3     the Department for purposes of this Act may be obtained.
4     This record shall at all times be open to the inspection of
5     the Department pursuant to rules promulgated by the
6     Department.
7         (3) Information obtained from employer records under
8     this Act are confidential and not open to public
9     inspection, other than to public employees in the
10     performance of their official duties. However, an
11     interested party shall be supplied with information from
12     employer records to the extent necessary for the proper
13     presentation of the case in question. An employer may
14     authorize inspection of its records by written consent.
15     (I) Disposal of business.
16         (1) When an employer quits business, or sells out,
17     exchanges, or otherwise disposes of the business or stock
18     of goods, any premium payable under this Act is immediately
19     due and payable, and the employer must, within 10 days
20     thereafter, make a return and pay the premium due. Any
21     person who becomes a successor to the business is liable
22     for the full amount of the premium and must withhold from
23     the purchase price a sum sufficient to pay any premium due
24     from the employer until the employer produces a receipt
25     from the Department showing payment in full of any premium
26     due or a certificate that no premium is due and, if the



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1     premium is not paid by the employer within 10 days from the
2     date of the sale, exchange, or disposal, the successor is
3     liable for the payment of the full amount of premium. The
4     successor's payment thereof is, to the extent thereof, a
5     payment upon the purchase price, and if the payment is
6     greater in amount than the purchase price, the amount of
7     the difference is a debt due the successor from the
8     employer.
9         (2) A successor is not liable for any premium due from
10     the person from whom the successor has acquired a business
11     or stock of goods if the successor gives written notice to
12     the Department of the acquisition and no assessment is
13     issued by the Department within 180 days of receipt of the
14     notice against the former operator of the business and a
15     copy is mailed to the successor.
16     (J) FLIP Account.
17         (1) The FLIP Account is created in the custody of the
18     State Treasurer. All receipts from the premium or penalties
19     imposed under this Act must be deposited in the account.
20     Expenditures from the account may be used only for the
21     purposes of the FLIP Program.
22         (2) Each employer shall retain from the earnings of
23     each full-time employee a premium in the amount of 75 cents
24     per week or, for part-time employees, an amount pro-rated
25     based on the number of actual hours worked. The employer
26     shall match the amount retained by an equal amount, and the



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1     money retained shall be paid to the Department in the
2     manner and at such intervals as the Department directs for
3     deposit in the FLIP Account.
4         (3) The Department shall adjust the amount of the
5     premium from time to time to ensure that the amount is the
6     lowest rate necessary to pay FLIP benefits and
7     administrative costs, and maintain actuarial solvency in
8     accordance with recognized insurance principles.
9         (4) The Department may adopt rules to permit an
10     employee with multiple employers and his or her employers
11     to petition for refunds or credits of amounts paid to the
12     Department for hours in excess of 35 hours per week worked
13     by the employee.
14     (K) Taxation of FLIP benefits. The Department must advise
15 an employee filing a new claim for FLIP benefits, at the time
16 of filing the claim, that:
17         (1) Benefits are subject to federal income tax and
18     State income tax.
19         (2) Requirements exist pertaining to estimated tax
20     payments.
21         (3) The employee may elect to have federal income tax
22     deducted and withheld from the employee's payment of
23     benefits at the amount specified in the Internal Revenue
24     Code.
25         (4) The employee is permitted to change a previously
26     elected withholding status.



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1     (L) No discrimination against claimants. An employer,
2 temporary services agency, employment agency, employee
3 organization, or other person may not discharge, expel, or
4 otherwise discriminate or retaliate against a person because he
5 or she has filed or communicated to the employer an intent to
6 file a claim, a complaint, or an appeal, has taken FLIP leave,
7 or has testified or is about to testify or has assisted in any
8 proceeding under this Act.
9     (M) Liability. Any employer who violates this Act is liable
10 to any affected individuals for damages with interest and for
11 such equitable relief as may be appropriate. The court in such
12 an action shall, in addition to any judgment awarded to the
13 plaintiff, allow a reasonable attorney's fee and other costs of
14 the action to be paid by the defendant. An action may be
15 brought under this Section not later than 3 years after the
16 date of the last event constituting the alleged violation for
17 which the action is brought.
18     (N) No entitlement.
19         (1) FLIP leave benefits are payable under this Act only
20     to the extent that moneys are available in the FLIP Account
21     for this purpose. Neither this State nor the Department is
22     liable for any amount in excess of these limits.
23         (2) This Act does not create a continuing entitlement
24     or contractual right. There is no vested private right of
25     any kind against amendment or repeal of this Act.
26     (O) Notification.



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1         (1) Every employer covered by this Act shall post and
2     keep posted, in conspicuous places on the premises of the
3     employer where notices to employers are customarily
4     posted, a notice, to be prepared or approved by the
5     Department, summarizing the requirements of this Act and
6     information pertaining to the filing of a charge.
7         (2) If a FLIP-covered employer has any written guidance
8     to employees concerning employee benefits or leave rights,
9     such as in an employee handbook, information concerning
10     FLIP entitlements and employee obligations under FLIP must
11     be included in the handbook or other document.
12         (3) An employer that willfully violates the
13     requirements in paragraph (1) or (2) of this subsection (N)
14     may be assessed a civil money penalty by the Department not
15     to exceed $1,000 for each separate offense. Furthermore, an
16     employer that fails to notify according to paragraph (1) or
17     (2) of this subsection (N) may not take any adverse action
18     against an employee, including denying FLIP leave, for
19     failing to furnish the employer with advance notice of a
20     need to take FLIP leave.
21         (4) If an employer's workforce is comprised of a
22     significant portion of workers who are not literate in
23     English, the employer is responsible for providing the
24     notice in a language in which the employees are literate.
25     (P) Outreach and education efforts. The Department shall
26 conduct ongoing outreach and education efforts concerning this



HB1683 - 19 - LRB095 08267 RLC 28439 b

1 Act targeted toward employers, labor organizations, and other
2 appropriate organizations.
3     (Q) Rules. The Department may adopt rules as necessary to
4 implement this Act. In adopting rules, the Department shall
5 maintain consistency with the rules adopted to implement the
6 federal Family and Medical Leave Act, to the extent those rules
7 are not in conflict with this Act.
8     Section 95. Severability. The provisions of this Act are
9 severable, and if any phrase, clause, sentence, or provision is
10 declared to be invalid or is preempted by federal law or
11 regulation, the validity of the remainder of this Act is not
12 affected.
13     Section 99. Effective date. This Act takes effect January
14 1, 2008.