HB3297ham001 99TH GENERAL ASSEMBLY

Rep. Christian L. Mitchell

Filed: 3/18/2015

09900HB3297ham001 LRB099 07119 JLS 32451 a

AMENDMENT TO HOUSE BILL 3297

AMENDMENT NO. ______. Amend House Bill 3297 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Employee Paid Health Care Time Act.

Section 5. Findings and purpose.

(a) The General Assembly finds:

(1) Nearly every worker in the State is likely to need time off to attend to his or her own illness or that of a family member. More than 40% of all private sector workers in Illinois (over 2,500,000 people) have no right to paid health care time. Over three-fourths of the lowest-wage workers do not receive paid health care time and cannot forfeit a day's work, so they often come into work sick.

(2) Of those workers who receive paid health care time, few policies, in both the private and public sectors, allow the worker to use it to care for a family member who is ill.

(3) Preventive and routine medical care helps avoid illness and injury by detecting illnesses early on and shortening the duration of illnesses. Providing employees with time off to attend to their own health care needs ensures that they will be healthier and more efficient employees. It will also reduce the spread of disease within workplaces and to the public, such as customers, when employees go to work sick, a practice known as "presenteeism". Routine medical care results in savings by detecting and treating illness and injury early and decreasing the need for emergency care. These savings benefit public and private payers of health insurance.

(4) When the school of a worker's child is closed because of extreme weather, it is often at the last minute and workers cannot find someone to babysit so they are forced to stay at home to take care of their children.

(5) Nearly one-quarter of American women report domestic violence and nearly one in 5 women report experiencing rape at some time during their lives. Many workers, men and women, need time off to care for their health after these incidents or to take legal action. Without paid time off, victims are in danger of losing their jobs.

(6) Employers that provide paid health care time see better productivity, reduced flu contagion, and lower turnover, which saves them the costs of replacing and training workers.

(b) This Act is enacted to establish the Employee Paid Health Care Time Act to provide at least a minimum time-off standard of paid health care time for all workers.

Section 10. Definitions. In this Act:

"Department" means the Department of Labor.

"Director" means the Director of Labor.

"Employee" means an individual permitted to work by an employer, including a part-time employee.

"Employer" means an individual, organization, governmental body, partnership, association, corporation, limited liability company, temporary service agency, employment agency, or other entity doing business in or operating within this State that employs one or more individuals.

"Healthcare provider" means a person:

(1) who is: (i) licensed to practice medicine in all of its branches in Illinois and possesses the degree of doctor of medicine; (ii) licensed to practice medicine in all of its branches in Illinois and possesses the degree of doctor of osteopathy or osteopathic medicine; (iii) licensed to practice medicine in all of its branches or as an osteopathic physician in another state or jurisdiction; or (iv) any other person determined by final rule under the Family and Medical Leave Act of 1993; and

(2) who is not employed by an employer to whom the provider issues certifications under this Act.

Section 15. Paid health care time.

(a) A full-time or part-time employee of an employer with 50 or more employees shall accrue not less than one hour of paid health care time for every 22 hours worked. A full-time or part-time employee of an employer with fewer than 50 employees shall accrue not less than one hour of paid health care time for every 40 hours worked. In the absence of a more generous paid health care time plan, an employer may:

(1) limit the amount of paid health care time used to a maximum of 56 hours in a 12-month period calculated from the date of hire or subsequent anniversary date;

(2) limit to 40 hours the number of hours in the workweek for which full-time employees not subject to the overtime provisions of the Federal Fair Labor Standards Act (29 U.S.C. 213(a)(1)) may accrue paid health care time; or

(3) incorporate paid health care time within a complement of paid leave for its employees that provides no less than the minimum required by this Section.

(b) Paid health care time shall be compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns for hours worked. Service or tipped employees shall be compensated at an amount that is not less than the minimum wage required for non-service or non-tipped employees under the Minimum Wage Law.

(c) An employee may use paid health care time for any of the following reasons:

(1) The employee is ill or injured.

(2) The employee obtains professional diagnostic, preventive, routine, or therapeutic health care.

(3) The employee cares for a sick or injured child, parent, parent-in-law, grandparent, spouse, domestic partner, stepchild, adopted child, foster child, grandchild, or ward of the employee who lives with the employee, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment.

(4) The employee cares for a child whose school or place of care has been closed by order of a public official due to a public health emergency or to not go in to work because of the closure of the employee's place of business by order of a public health official due to a public health emergency.

(5) The employee needs to be off from work because he or she or the employee's family member is the victim of domestic violence as defined in Section 103(3) of the Illinois Domestic Violence Act of 1986 or sexual violence as defined under Article 11 and Sections 12-7.3, 12-7.4, and 12-7.5 of the Illinois Criminal Code of 2012.

(d) Paid health care time shall begin to accrue at the commencement of employment or on the effective date of this Act, whichever is later. An employee shall be entitled to begin using health care time 120 days following commencement of his or her employment or 120 days following the effective date of this Act, whichever is later.

(e) Unless an employer and its employees agree to paid health care time provisions more generous to employees with respect to accrual rates and maximum hours:

(1) An employee shall determine how much paid health care time he or she needs to use, however, the employer may set a reasonable minimum increment for the use of paid health care time not to exceed 2 hours per day.

(2) Paid health care time that is accrued but unused shall be carried over to the next year, but an employee may use no more than 56 hours of paid health care in any one year, unless the employer provides a more generous allotment.

(3) Upon separation from employment, an employee shall not be entitled to payment for unused paid health care time unless agreed upon by the employer.

(4) At the employer's discretion, an employee may borrow paid health care time before the time is actually accrued.

(5) An employee who is rehired by the same employer within 12 months after a separation from employment shall retain paid health care time accrued but unused at the time of separation.

(f) An employer with a paid health care time policy that is comparable to or more generous than the paid health care time provided under this Section that complies with the provisions of this Act is not required to provide additional paid health care time.

(g) An employer may not require an employee to look for or provide a replacement worker for the time during which the employee uses or is expected to use paid health care time.

(h) An employer may require an employee planning to take paid health care time to notify the employer as soon as practical by providing an explanation of the reason for taking paid health care time and for the expected duration of the employee's absence.

(i) An employer may require certification of the qualifying illness, injury, or health condition when paid health care time covers more than 3 consecutive workdays. Any reasonable documentation signed by a healthcare provider involved in following or treating the illness, injury, or health condition, and indicating the need for the amount of health care time taken, shall be deemed acceptable certification. Nothing in this Act shall be construed to require an employer to provide as certification any information from a healthcare provider that would be in violation of Section 1177 of the Social Security Act or the regulations promulgated pursuant to the federal Health Insurance Portability and Accountability Act of 1996. If an employer possesses health information about an employee or employee's family member, such information shall be treated as confidential and not disclosed except with the permission of the affected employee. For time used pursuant to subdivision (b)(5), any one of the following is acceptable documentation, and only one of the following shall be required: a police report, court document, or signed statement from an attorney, a member of the clergy, or a victim services advocate. It is up to the employee to determine which documentation to submit.

The employer shall not delay the commencement of leave taken for purposes of subsection (b) of this Section nor delay pay for this period on the basis that the employer has not yet received the certification.

The employee shall provide the certification no later than 30 days after it is requested by the employer. The employer shall pay the cost of or reimburse the employee for any out-of-pocket costs related to providing this certification.

(j) During any period an employee takes leave under this Act, the employer shall maintain coverage for the employee and any family member under any group health plan for the duration of such leave at at least the level and conditions of coverage as would have been provided if the employee had not taken the leave.

(k) Nothing in this Section shall be construed to prohibit an employer from taking disciplinary action, up to and including termination, against an employee who uses paid health care time provided pursuant to this Act for purposes other than those described in this Section.

(l) All or any portion of the applicable requirement in this Section shall not apply to any employee covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous language.

(m) An employer shall post notice of the provisions of this Act including information pertaining to the filing of a charge. This notice shall be provided by the Director and put in a place conspicuous to employees at the employer's place of business.

(n) An employer subject to any provision of this Act shall make and preserve records documenting hours worked by employees and the amount of paid health care time taken by employees.

(o) An agreement by an employee to waive his or her rights under this Act, except as allowed under subsection (l) of Section 15, is void as against public policy.

Section 20. Department responsibilities.

(a) The Department shall administer and enforce this Act and adopt rules under the Illinois Administrative Procedure Act for the purpose of this Act. The Department shall have the powers and the parties shall have the rights provided in the Illinois Administrative Procedure Act for contested cases. The Department shall have the power to conduct investigations in connection with the administration and enforcement of this Act, including the power to conduct depositions and discovery and to issue subpoenas. If the Department finds cause to believe that this Act has been violated, the Department shall notify the parties in writing and the matter shall be referred to an Administrative Law Judge to schedule a formal hearing in accordance with hearing procedures established by rule.

(b) The Department is authorized to impose civil penalties prescribed in Section 25 in administrative proceedings that comply with the Illinois Administrative Procedure Act and to supervise the payment of the unpaid wages and damages owing to the employee or employees under this Act. The Department may bring any legal action necessary to recover the amount of unpaid wages, damages, and penalties, and the employer shall be required to pay the costs. Any sums recovered by the Department on behalf of an employee under this Act shall be paid to the employee or employees affected. However, 20% of any penalty collected from the employer for a violation of this Act shall be deposited in the Healthy Workplace Fund, a special fund created in the State treasury that is dedicated to enforcing this Act.

(c) The Attorney General may bring an action to enforce the collection of any civil penalty imposed under this Act.

Section 25. Enforcement.

(a) An employee who believes his or her rights under this Act or any rule adopted under this Act have been violated may, within 3 years after the date of the last event constituting the alleged violation for which the action is brought, file a complaint with the Department or file a civil action.

(b) Any employer that violates this Act is liable in a claim filed with the Department or in a civil action in circuit court to any affected individuals for actual and compensatory damages, with interest at the prevailing rate, punitive damages, and such equitable relief as may be appropriate, in addition to reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the defendant. A civil action may be brought without first filing an administrative complaint.

(c) Any employer that the Department or a court finds by a preponderance of the evidence to have knowingly, repeatedly, or with reckless disregard violated any provision of this Act or any rule adopted under this Act is subject to a civil money penalty not to exceed $2,500 for each separate offense.

Section 95. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 97. The State Finance Act is amended by adding Section 5.866 as follows:

(30 ILCS 105/5.866 new)

Sec. 5.866. The Healthy Workplace Fund.

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