Full Text of SB1723 101st General Assembly
SB1723sam001 101ST GENERAL ASSEMBLY | Sen. Ram Villivalam Filed: 3/13/2019
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| 1 | | AMENDMENT TO SENATE BILL 1723
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1723 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Family and Medical Leave Insurance Act. | 6 | | Section 5. Declaration of policy and intent. | 7 | | (a) Many workers do not have access to family and medical | 8 | | leave programs, and those who do may not be in a financial | 9 | | position to take family or medical leave that is unpaid, and | 10 | | employer-paid benefits meet only a relatively small part of | 11 | | this need. It is the public policy of this State to protect
| 12 | | working families against the economic hardship caused by the
| 13 | | need to take time off from work to care for themselves or | 14 | | family members who
are suffering from a serious illness or to | 15 | | care for a newborn or a newly adopted child. | 16 | | Moreover, many women are single mothers or the primary |
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| 1 | | breadwinners for their families. If any of these women take an | 2 | | unpaid maternity leave, her whole family, and Illinois, | 3 | | suffers. | 4 | | The United States is the only industrialized nation in the | 5 | | world that does not have a mandatory workplace-based program | 6 | | for such income support. | 7 | | It is therefore desirable and necessary to develop systems | 8 | | that help families adapt to the competing interests of work and | 9 | | home which not only benefit workers, but also benefit employers | 10 | | by reducing employee turnover and increasing worker | 11 | | productivity. | 12 | | (b) It is the intent of the General Assembly to create a | 13 | | family and medical leave program to relieve the serious menace | 14 | | to health, morals, and welfare of Illinois families, to | 15 | | increase workplace productivity, and to alleviate the enormous | 16 | | and growing stress on working families of balancing the demands | 17 | | of work and family needs. | 18 | | Section 10. Definitions. In this Act: | 19 | | (1) "Average weekly wage" means the amount derived by | 20 | | dividing by 12 an employee's total wages, including gratuities | 21 | | and commissions that constitute remuneration, earned during | 22 | | the 12 weeks preceding application for family and medical leave | 23 | | benefits, or the most recent 12 weeks of employment if the | 24 | | individual is not currently employed. | 25 | | (2) "Base hours" means the hours of work for which an |
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| 1 | | employee receives compensation. "Base hours" includes overtime | 2 | | hours for which the employee is paid additional or overtime | 3 | | compensation and hours for which the employee receives workers' | 4 | | compensation benefits. "Base hours" also includes hours an | 5 | | employee would have worked except for having been in military | 6 | | service. "Base hours" also includes hours for which the | 7 | | employee receives other types of compensation, such as | 8 | | administrative, personal leave, vacation or sick leave, or paid | 9 | | time off. | 10 | | (3) "Care" includes, but is not limited to, physical care, | 11 | | emotional support, visitation, arranging for a change in care, | 12 | | assistance with essential daily living matters, and personal | 13 | | attendant services. | 14 | | (4) "Child" means a biological, adopted, or foster child,
| 15 | | stepchild, or legal ward of an employee, or a child for whom an | 16 | | employee is standing in loco parentis, a child of the
spouse of | 17 | | an employee, or a child of a party to a civil union, or any | 18 | | other individual whose close association with the employee is | 19 | | the equivalent of a child. | 20 | | (5) "Civil union" means a civil union as defined in the | 21 | | Illinois Religious Freedom Protection and Civil Union Act.
| 22 | | (6) "Consecutive leave" means leave that is taken without | 23 | | interruption based upon an employee's regular work schedule and | 24 | | does not include breaks in employment in which an employee is | 25 | | not regularly scheduled to work. For example, when an employee | 26 | | is normally scheduled to work from September through June and |
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| 1 | | is not scheduled to work during July and August, a leave taken | 2 | | continuously during May, June, and September shall be | 3 | | considered a consecutive leave. | 4 | | (7) "Covered employee" means (a) an individual employed by | 5 | | the same employer, as defined in paragraph (12), in the State | 6 | | of Illinois for 12 weeks or more who has worked 240 or more | 7 | | base hours. This threshold must be met annually, however, once | 8 | | the annual threshold is met, the covered employee shall be able | 9 | | to use family and medical leave. A covered employee is | 10 | | considered to be employed in the State of Illinois if (i) the | 11 | | individual works in Illinois; (ii) the individual performs some | 12 | | work in Illinois and the employer's base of operations or the | 13 | | place from which the work is directed and controlled is in | 14 | | Illinois; or (iii) the base of operations or place from which | 15 | | the work is directed or controlled is not in any state in which | 16 | | some part of the work is performed, but the individual's | 17 | | residence is in this state. | 18 | | (8) "Department" means the Department of Employment | 19 | | Security.
| 20 | | (9) "Director" means the Director of Employment Security | 21 | | and any transaction or exercise of authority by the Director | 22 | | shall be deemed to be performed by the Department. | 23 | | (10)"Employ" means to suffer or permit to work. | 24 | | (11)"Employee" means any person who works for an
employer | 25 | | for wage, remuneration, or other compensation. This
includes | 26 | | persons working any number of hours, including full-time or |
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| 1 | | part-time status. "Employee" does not include (i) any employee | 2 | | as defined in the federal Railroad Unemployment Insurance Act | 3 | | (45 U.S.C 351) or (ii) any person who the employer establishes: | 4 | | (A) has been and will continue to be free from control | 5 | | and direction over the performance of their work, both | 6 | | under a contract of service and in fact; | 7 | | (B) is engaged in an independently established trade, | 8 | | occupation, profession or business; or | 9 | | (C) is deemed a legitimate sole proprietor or | 10 | | partnership. A sole proprietor or partnership shall be | 11 | | deemed to be legitimate if the employer establishes that: | 12 | | (i) the sole proprietor or partnership is | 13 | | performing the service free from the direction or | 14 | | control over the means and manner of providing the | 15 | | service, subject only to the right of the employer for | 16 | | whom the service is provided to specify the desired | 17 | | result; | 18 | | (ii) the sole proprietor or partnership is not | 19 | | subject to cancellation or destruction upon severance | 20 | | of the relationship with the employer; | 21 | | (iii) the sole proprietor or partnership has a | 22 | | substantial investment of capital in the sole | 23 | | proprietorship or partnership beyond the ordinary | 24 | | tools and equipment and a personal vehicle; | 25 | | (iv) the sole proprietor or partnership owns the | 26 | | capital goods and gains the profits and bears the |
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| 1 | | losses of the sole proprietorship or partnership; | 2 | | (v) the sole proprietor or partnership makes its | 3 | | services available to the general public on a | 4 | | continuing basis; | 5 | | (vi) the sole proprietor or partnership includes | 6 | | services rendered on a federal Income Tax Schedule as | 7 | | an independent business or profession; | 8 | | (vii) the sole proprietor or partnership performs | 9 | | services for the contractor under the sole proprietor | 10 | | or partnership's name; | 11 | | (viii) when the services being provided require a | 12 | | license or permit, the sole proprietor or partnership | 13 | | obtains and pays for the license or permit in the sole | 14 | | proprietorship's or partnership's name; | 15 | | (ix) the sole proprietor or partnership furnishes | 16 | | the tools and equipment necessary to provide the | 17 | | service; | 18 | | (x) if necessary, the sole proprietor or | 19 | | partnership hires its own employees without approval | 20 | | of the employer, pays the employees without | 21 | | reimbursement from the employer and reports the | 22 | | employees' income to the Internal Revenue Service; | 23 | | (xi) the employer does not represent the sole | 24 | | proprietorship or partnership as an employee of the | 25 | | employer to the public; and | 26 | | (xii) the sole proprietor or partnership has the |
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| 1 | | right to perform similar services for others on | 2 | | whatever basis and whenever it chooses. | 3 | | (12) "Employer" means any individual, person, partnership, | 4 | | association, limited liability company, trust,
estate, | 5 | | joint-stock company, insurance company, employment and labor | 6 | | placement agency, or business where wages are made directly or | 7 | | indirectly by the agency or business for work undertaken by the | 8 | | employee under hire to a third party pursuant to a contract | 9 | | between the agency or business with the third party, or
| 10 | | corporation, whether domestic or foreign, or the receiver,
| 11 | | trustee in bankruptcy, trustee, or person that has in its
| 12 | | employ one or more employees performing services for it as a | 13 | | covered employee. "Employer" also includes any employer | 14 | | subject to
the Unemployment Insurance Act, except the State, | 15 | | its political
subdivisions, and any instrumentality of the | 16 | | State. All
employees performing services within this State for | 17 | | any
employing unit that maintains 2 or more separate | 18 | | establishments
within this State shall be deemed to be employed | 19 | | by a single
employing unit for all purposes of this Act. | 20 | | (13) "Family member" means an employee's child, spouse, | 21 | | party to a civil union, parent, or any other individual related | 22 | | by blood or whose close relationship with the employee is the | 23 | | equivalent of a family relationship, as determined by the | 24 | | employee. | 25 | | (14) "Family and medical leave" means leave taken by a | 26 | | covered
employee from work with an employer: |
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| 1 | | (A) to participate in the
providing of care, including | 2 | | physical or psychological care,
for a family member of the | 3 | | covered employee
made necessary by a serious health | 4 | | condition of the family
member; | 5 | | (B) to be with a child during the first 12 months after
| 6 | | the child's birth, if the employee, the employee's spouse, | 7 | | or
the party to a civil union with the employee, is a | 8 | | biological
parent of the child, or the first 12 months | 9 | | after the placement
of the child for adoption or foster | 10 | | care with the employee, the first 12 months after the child | 11 | | becomes the legal ward of the employee, the employee's | 12 | | spouse, or the party to a civil union with the employee, or | 13 | | the first 12 months after the employee, the employee's | 14 | | spouse, or the party to a civil union with the employee | 15 | | acquires loco parentis status of the child; | 16 | | (C)
for the employee's own serious health condition; | 17 | | (D) because
of any qualifying exigency as interpreted | 18 | | under the Family and
Medical Leave Act of 1993 (29 U.S.C. | 19 | | 2612(a)(1)(E) and 29 CFR 825.126) as of the effective date | 20 | | of this Act arising out of the fact that the spouse, party | 21 | | to a
civil union, child, parent of the employee, or any | 22 | | other
individual related by blood or whose close | 23 | | relationship with
the employee is equivalent to a family | 24 | | relationship is on
active duty (or has been notified of an | 25 | | impending call or order
to active duty) in the armed forces | 26 | | as of the United States; or |
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| 1 | | (E) because the employee or the employee's family | 2 | | member is the victim of domestic violence as defined in | 3 | | Section 103(3) of the Illinois Domestic Violence Act of | 4 | | 1986, or sexual violence, which means: (1) any conduct | 5 | | proscribed by Article 11 of the Criminal Code of 2012 | 6 | | except Sections 11-35 and 11-45; (ii) Sections 12-7.3, | 7 | | 12-7.4, and 12-7.5 of the Illinois Criminal Code of 2012; | 8 | | or (iii) a similar provision of the Criminal Code of 1961.
| 9 | | "Family and medical leave" does not include any period of | 10 | | time during which
an employee is paid benefits pursuant to | 11 | | the Workers'
Compensation Act because the
employee is | 12 | | unable to perform the duties of the employee's
employment | 13 | | due to the employee's own disability, or paid benefits | 14 | | pursuant to the Unemployment Insurance Act. | 15 | | (15) "Family and medical leave benefits" means any payments | 16 | | that are
payable to a covered employee for all or part of a | 17 | | period of
family and medical leave. | 18 | | (16) "Health care provider" means any person licensed under
| 19 | | federal, State, or local law or the laws of a foreign nation to
| 20 | | provide health care services or any other person who has been
| 21 | | authorized to provide health care by a licensed health care
| 22 | | provider. | 23 | | (17) "Intermittent leave" means a non-consecutive leave
| 24 | | consisting of intervals, each of which is at least one, but
| 25 | | fewer than 12, weeks within a consecutive 12-month period. | 26 | | (18) "Parent" means a biological
parent, foster parent, |
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| 1 | | adoptive parent, or stepparent of the
employee or a person who | 2 | | was a legal guardian of, or
who stood in loco parentis to, the | 3 | | employee when the
employee was a child, or any other individual | 4 | | whose close association with the employee is the equivalent of | 5 | | a parent. | 6 | | (19) "Placement for adoption" means the time when an
| 7 | | employee adopts a child or becomes responsible for a
child | 8 | | pending adoption by the eligible employee. | 9 | | (20) "Serious health condition" means an illness, injury,
| 10 | | impairment, or physical or mental condition that requires
| 11 | | inpatient care in a hospital, hospice, or residential medical
| 12 | | care facility or continuing medical treatment or continuing
| 13 | | supervision by a health care provider. | 14 | | (21) "12-month period" means, with respect to an employee
| 15 | | who establishes a valid claim for family and medical leave | 16 | | benefits during
a period of family and medical leave, the 365 | 17 | | consecutive days that begin
with the first day that the | 18 | | employee first establishes the
claim. | 19 | | (22) "Victim services organization" means a nonprofit, | 20 | | nongovernmental organization that provides assistance to | 21 | | victims of domestic or sexual violence, including rape crisis | 22 | | centers, organizations carrying out a domestic violence | 23 | | program, organizations operating a shelter or providing | 24 | | counseling services, or a legal services organization or other | 25 | | organization providing assistance through the legal process. |
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| 1 | | Section 15. Family and medical leave insurance program. | 2 | | (a) The Department shall
establish and administer a family | 3 | | and medical leave insurance program. | 4 | | (b) The Department shall establish procedures and forms for | 5 | | filing
claims for benefits under this Act. | 6 | | (c) The Department shall use information sharing and
| 7 | | integration technology to facilitate the disclosure of
| 8 | | relevant information or records by the Department. | 9 | | (d) Information contained in the files and records | 10 | | pertaining to an
employee under this Act is confidential and | 11 | | not open to public
inspection, other than to public employees | 12 | | in the performance of their
official duties. However, the | 13 | | employee or an authorized
representative of an employee may | 14 | | review the records or receive
specific information from the | 15 | | records on the presentation of the signed
authorization of the | 16 | | employee. An employer or the employer's duly
authorized | 17 | | representative may review the records of an employee
employed | 18 | | by the employer in connection with a pending claim. At the
| 19 | | Department's discretion, other persons may review records when | 20 | | such
persons are rendering assistance to the Department at any | 21 | | stage of the
proceedings on any matter pertaining to the | 22 | | administration of this
Act. | 23 | | An employer must keep at its place of business records of | 24 | | employment from which the information needed by the Department | 25 | | for purposes of this Act may be obtained. The records shall at | 26 | | all times be open to the inspection of the Department pursuant |
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| 1 | | to rules adopted by the Department. | 2 | | (e) The Department shall develop and implement an outreach
| 3 | | program to ensure that individuals who may be eligible to
| 4 | | receive family and medical leave benefits under this Act are | 5 | | made aware of
these benefits. Outreach information shall | 6 | | explain, in an easy
to understand format, eligibility | 7 | | requirements, the claims
process, weekly benefit amounts, | 8 | | maximum benefits payable,
notice requirements, reinstatement | 9 | | and nondiscrimination
rights, confidentiality, and | 10 | | coordination of leave under this
Act and other laws, collective | 11 | | bargaining agreements, and
employer policies. Outreach | 12 | | information shall be available in
English and in languages | 13 | | other than English that are spoken as
a primary language by a | 14 | | significant portion of the State's
population, as determined by | 15 | | the Department. | 16 | | (f) A covered employee may make a claim for benefits under | 17 | | this Act on and after January 1 of the year one year after the | 18 | | Department begins collecting employee payroll premium | 19 | | deductions and employer premium contributions under this Act. | 20 | | Section 20. Eligibility for benefits. | 21 | | (a) The Department may require that a claim for family and | 22 | | medical
leave benefits under this Act be supported by a
| 23 | | certification. For a claim for family and medical leave under | 24 | | paragraph (A), (B), or (C) of item (14) of Section 10, the | 25 | | certification shall be issued by a health care provider of the |
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| 1 | | employee's choosing who is providing
care to the employee or | 2 | | the employee's family member if
applicable. For a claim for | 3 | | family and medical leave under paragraph (E) of item (14) of | 4 | | Section 10, any one of the following is acceptable for | 5 | | certification, and only one of the following documents shall be | 6 | | required: a police report, court document, document issued by a | 7 | | healthcare provider, or a signed statement from an attorney, a | 8 | | member of the clergy, or a victim services organization or | 9 | | advocate. It is up to the employee to determine which | 10 | | documentation to submit. If a document has been submitted, the | 11 | | Department or the employer shall not request or require any | 12 | | other document if the reason for the initial or subsequent | 13 | | claims for family and medical leave is related to the same | 14 | | incident of violence or the same perpetrator of the violence. | 15 | | (b) The eligibility of an employee for benefits is not | 16 | | affected by a strike or lockout at the
factory, establishment, | 17 | | or other premises at which the employee is or was last | 18 | | employed. | 19 | | (c) An employee who has received benefits under this
Act | 20 | | may not lose any other employment benefits, including
seniority | 21 | | or pension rights, accrued before the date that
family and | 22 | | medical leave commenced. The employer shall maintain during any | 23 | | period of family and medical leave taken the health benefits of | 24 | | the employee and, if applicable, the employee's dependents, in | 25 | | force at the time a request for family and medical leave was | 26 | | made, for the duration of such leave as if the employee had |
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| 1 | | continued to work from the date the employee commenced the | 2 | | family and medical leave until the date the employee returns to | 3 | | work. However, this Section does not entitle
an employee to | 4 | | accrue employment benefits during a period of
family and | 5 | | medical leave or to a right, benefit, or position of employment
| 6 | | other than a right, benefit, or position to which the employee
| 7 | | would have been entitled had the employee not taken family and | 8 | | medical
leave. | 9 | | (d) This Act does not diminish an employer's obligation
to | 10 | | comply with a collective bargaining agreement or an
employment | 11 | | benefits program or plan that provides greater
benefits to | 12 | | employees than the benefits provided under this
Act. | 13 | | (e) An agreement by an employee to waive the employee's
| 14 | | rights under this Section is void as contrary to public policy.
| 15 | | The benefits under this Act may not be diminished by a
| 16 | | collective bargaining agreement or another employment benefits
| 17 | | program or plan entered into or renewed after the effective
| 18 | | date of this Act. | 19 | | (f) Nothing in this Act shall be deemed to affect the
| 20 | | validity or change the terms of bona fide collective bargaining
| 21 | | agreements in force on the effective date of this Act. After
| 22 | | that date, requirements of this Act may be waived in a bona
| 23 | | fide collective bargaining agreement, but only if the waiver is
| 24 | | set forth explicitly in such agreement in clear and unambiguous
| 25 | | terms. |
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| 1 | | Section 25. Elective coverage; self-employed. | 2 | | (a) For benefits payable beginning January 1, 2021, any | 3 | | self-employed person, including a sole proprietor, independent | 4 | | contractor, partner, or joint venturer, who has | 5 | | self-employment income for work performed in Illinois in | 6 | | accordance with the definition of covered employee under item | 7 | | (7) of Section 10 may elect coverage for an initial period of | 8 | | not less than 3 years and subsequent periods of not less than | 9 | | one year immediately following a period of coverage. Those | 10 | | electing coverage under this Act are responsible for payment of | 11 | | 100% of all premiums assessed to any employee and employer | 12 | | under this Act. The self-employed person must file a notice of | 13 | | election in writing with the Department, in a manner as | 14 | | required by the Department in rule. The self-employed person is | 15 | | eligible for family and medical leave benefits after working at | 16 | | least 12 weeks in the state following the date of filing the | 17 | | notice. | 18 | | (b) A self-employed person who has elected coverage may | 19 | | withdraw from coverage within 30 days after the end of each | 20 | | period of coverage, or at such other times as the Department | 21 | | may adopt by rule, by filing a notice of withdrawal in writing | 22 | | with the Department, such withdrawal to take effect not sooner | 23 | | than 30 days after the filing the notice with the Department. | 24 | | (c) The Department may cancel elective coverage if the | 25 | | self-employed person fails to make required payments or file | 26 | | reports. The Department may collect due and unpaid premiums and |
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| 1 | | may levy additional premiums for the remainder of the period of | 2 | | coverage. The cancellation shall be effective no later than 30 | 3 | | days from the date of the notice in writing advising the | 4 | | self-employed person of the cancellation. | 5 | | (d) Those electing coverage are considered employees or | 6 | | employers where the context dictates so. | 7 | | (e) In this Section, "independent contractor" means an | 8 | | individual excluded from employment under the definition of | 9 | | "employee" under Section 10 of this Act. | 10 | | Section 30. Disqualification from benefits. | 11 | | (a) An employee is disqualified from family and medical | 12 | | leave benefits
under this Act if the employee: | 13 | | (1) willfully makes a false statement or | 14 | | misrepresentation regarding a material fact, or
willfully | 15 | | fails to disclose a material fact, to obtain benefits; | 16 | | (2) seeks benefits based on a serious health condition
| 17 | | that resulted from the employee's commission of a felony. | 18 | | (b) A disqualification for family and medical leave | 19 | | benefits is for a
period of 2 years, and commences on the first | 20 | | day of the
calendar week in which the employee filed a claim | 21 | | for benefits
under this Act. An employee who is disqualified | 22 | | for benefits is
liable to the Department for a penalty in an | 23 | | amount equal to
15% of the amount of benefits received by the | 24 | | employee. |
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| 1 | | Section 35. Family and Medical Leave Insurance Fund. | 2 | | (a) The Family and Medical Leave Insurance Fund is created | 3 | | as a special fund in
the State treasury. Moneys in the
Fund may | 4 | | be used for the payment of family and medical leave benefits | 5 | | and
for the administration of this Act. All interest and other
| 6 | | earnings that accrue from investment of moneys in the Fund
| 7 | | shall be credited to the Fund.
| 8 | | (b) An employer shall retain from all employees a payroll
| 9 | | premium deduction in the amount of 0.15% of wages as defined in
| 10 | | Section 235 of the Unemployment Insurance Act. An employer | 11 | | shall pay an amount equal to the payroll premium deduction, | 12 | | known as the employer's premium contribution. The Department
| 13 | | shall by rule provide for the collection of this payroll
| 14 | | premium deduction and the employer's premium contribution. | 15 | | The amount of the payroll premium deduction and the | 16 | | employer's premium contribution imposed under this
Section, | 17 | | less refunds authorized by this Act, and all
assessments and | 18 | | penalties collected under this Act shall be
deposited into and | 19 | | credited to the Fund. | 20 | | (c) A separate account, to be known as the Family and | 21 | | Medical Leave Insurance Administration
Account, shall be | 22 | | maintained in the Fund. An amount determined
by the Department | 23 | | sufficient for proper administration, not to
exceed, however, | 24 | | 0.05% of additional payroll premium deductions and of employer | 25 | | premium contributions as defined in this Section,
shall be | 26 | | collected and credited to the Administration Account. The |
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| 1 | | expenses
of the Department in administering the Fund and its | 2 | | accounts
shall be charged against the Administration Account. | 3 | | The costs
of administration of this Act shall be charged to the
| 4 | | Administration Account. | 5 | | (d) A separate account, to be known as the Family and | 6 | | Medical Leave
Benefits Account, shall be maintained in the | 7 | | Fund. The account
shall be charged with all benefit payments. | 8 | | Prior to July 1 of
each calendar year, the Department shall | 9 | | determine the average
rate of interest and other earnings on | 10 | | all investments of the
Fund for the preceding calendar year. If | 11 | | there is an
accumulated deficit in the Family and Medical Leave | 12 | | Benefits Account in
excess of $200,000 at the end of any | 13 | | calendar year after
interest and other earnings have been | 14 | | credited as provided in
this Section, the Department shall | 15 | | determine the ratio of the
deficit to the total of all taxable | 16 | | wages paid during the
preceding calendar year and shall make an | 17 | | assessment against
all employers in an amount equal to the | 18 | | taxable wages paid by
them during the preceding calendar year | 19 | | to employees,
multiplied by the ratio, but in no event shall | 20 | | any such
assessment exceed 0.1% of such wages. The amounts | 21 | | shall be
collectible by the Department in the same manner as | 22 | | provided
for the collection of employer contributions under the
| 23 | | Unemployment Insurance Act. In making this assessment, the
| 24 | | Department shall furnish to each affected employer a brief
| 25 | | summary of the determination of the assessment. The amount of
| 26 | | such assessments collected by the Department shall be credited
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| 1 | | to the Family and Medical Leave Benefits Account. As used in | 2 | | this Section,
"wages" means wages as provided in Section 235 of | 3 | | the
Unemployment Insurance Act. | 4 | | (e) A board of trustees, consisting of the State Treasurer, | 5 | | the Secretary of State, the Director of Labor, the Director of | 6 | | Employment Security, and the State Comptroller, is hereby | 7 | | created. The board shall invest and reinvest all moneys in the | 8 | | Fund in excess of its cash requirements in obligations legal | 9 | | for savings banks. | 10 | | (f) The Department may adjust rates, not to exceed the | 11 | | amount
established in subsection (b) of this Section, for the
| 12 | | collection of premiums pursuant to subsection (b) of this
| 13 | | Section. The Department shall set rates for premiums in a | 14 | | manner
that minimizes the volatility of the rates assessed and | 15 | | so that
at the end of the period for which the rates are | 16 | | effective, the
cash balance shall be an amount approximating 12 | 17 | | months of
projected expenditures from the
Fund, considering the | 18 | | functions and duties of the Department
under this Act. | 19 | | (g) An employer required to make employee premium | 20 | | deductions and pay employer premium contributions under this | 21 | | Section
shall make and file a report of employee hours worked | 22 | | and
amounts due under this Section upon a combined report form
| 23 | | prescribed by the Department. The report shall be filed with
| 24 | | the Department at the times and in the manner prescribed by the
| 25 | | Department. | 26 | | (h) If the employer is a temporary employment agency that
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| 1 | | provides employees on a temporary basis to its customers, the
| 2 | | temporary employment agency is considered the employer for
| 3 | | purposes of this Act. | 4 | | (i) When an employer goes out of business or sells out,
| 5 | | exchanges, or otherwise disposes of the business or stock of
| 6 | | goods, any premiums payable under this Section are immediately
| 7 | | due and payable, and the employer shall, within 10 days
| 8 | | thereafter, pay the premiums due. A person who becomes a
| 9 | | successor to the business is liable for the full amount of the
| 10 | | premiums and shall withhold from the purchase price a sum
| 11 | | sufficient to pay any premiums due from the employer until the
| 12 | | employer produces a receipt from the Department showing payment
| 13 | | in full of any premiums due or a certificate that no premium is
| 14 | | due. If the premiums are not paid by the employer within 10 | 15 | | days
after the date of the sale, exchange, or disposal, the
| 16 | | successor is liable for the payment of the full amount of the
| 17 | | premiums. The successor's payment of the premiums are, to the
| 18 | | extent of the payment, a payment upon the purchase price, and
| 19 | | if the payment is greater in amount than the purchase price,
| 20 | | the amount of the difference is a debt due the successor from
| 21 | | the employer.
| 22 | | A successor is not liable for any premiums due from the
| 23 | | person from whom the successor has acquired a business or stock
| 24 | | of goods if the successor gives written notice to the
| 25 | | Department of the acquisition and no assessment is issued by
| 26 | | the Department within one year after receipt of the notice
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| 1 | | against the former operator of the business. | 2 | | (j) This Section is inoperative before January 1 of the | 3 | | year after this Act becomes law. At that time, the Department | 4 | | shall collect the amounts due under this Section. | 5 | | Section 40. Compensation for family and medical leave. | 6 | | (a) An individual's weekly benefit rate shall be determined | 7 | | as follows: if the employee's average weekly wage is (a) 50% or | 8 | | less of the statewide average weekly wage, the employee's | 9 | | weekly benefit is 90% of the employee's average weekly wage or | 10 | | (b) greater than 50% of the statewide average weekly wage, the | 11 | | employee's weekly benefit is the sum of (i) 90% of the | 12 | | employee's average weekly wage up to 50% of the statewide | 13 | | average weekly wage; and (ii) 50% of the employee's average | 14 | | weekly wage that is greater than 50% of the statewide average | 15 | | weekly wage.
The individual's benefit rate shall be computed to | 16 | | the next lower
multiple of $1 if not already a multiple | 17 | | thereof. The amount of
benefits for each day of family and | 18 | | medical leave for which benefits are
payable shall be | 19 | | one-seventh of the corresponding weekly
benefit amount; | 20 | | provided that the total benefits for a
fractional part of a | 21 | | week shall be computed to the next lower
multiple of $1 if not | 22 | | already a multiple thereof. | 23 | | (b) The maximum weekly benefit for family and medical leave | 24 | | shall be $1,000, adjusted annually after the first year to 90% | 25 | | of the statewide average weekly wage. |
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| 1 | | (c) With respect to any period of family and medical leave | 2 | | taken by a covered employee, family and medical leave benefits | 3 | | not in
excess of the employee's maximum benefits shall be | 4 | | payable
with respect to the first day of family and medical | 5 | | leave taken after a waiting period consisting of the first 7 | 6 | | calendar days of family and medical leave following the | 7 | | commencement of the period of
family and medical leave and each | 8 | | subsequent day of family and medical leave during
that period | 9 | | of family and medical leave; and if benefits become payable on
| 10 | | any day after the first 3 weeks in which leave is taken, then
| 11 | | benefits shall also be payable with respect to any leave taken
| 12 | | during the first one-week period in which leave is taken. The | 13 | | waiting period need only be served once every application year. | 14 | | The
maximum total benefits payable to any covered employee
| 15 | | commencing on or after the effective date of this Act shall be
| 16 | | 12 times the employee's weekly benefit amount, provided that | 17 | | the maximum amount shall be computed
in the next lower multiple | 18 | | of $1 if not already a multiple
thereof. | 19 | | (d) The first payment of benefits must be made to an | 20 | | employee within 14 calendar days after the claim is filed and | 21 | | subsequent payments must be made no later than semi-monthly | 22 | | thereafter. If the employer contests an initial application for | 23 | | family and medical leave benefits, the employer must notify the | 24 | | employee and the Department in a manner prescribed by the | 25 | | Director within 10 calendar days of receipt of notice from the | 26 | | Department of the employee's filing of an application for |
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| 1 | | benefits. | 2 | | Nothing in this Act shall be construed to prohibit the
| 3 | | establishment by an employer, without approval by the
| 4 | | Department, of a supplementary plan or plans providing for the
| 5 | | payment to employees, or to any class or classes of employees,
| 6 | | of benefits in addition to the benefits provided by this Act. | 7 | | The rights, duties, and responsibilities of all
interested | 8 | | parties under the supplementary plans shall be
unaffected by | 9 | | any provision of this Act. | 10 | | Section 45. Family and medical leave; duration. A covered | 11 | | employee
may take up to 12 weeks of family and medical leave | 12 | | within any 12-month period in
order to provide care made | 13 | | necessary by reasons identified in
item (14) of Section 10. A | 14 | | covered employee may take family and medical leave on an
| 15 | | intermittent schedule in which all of the leave authorized
| 16 | | under this Act is not taken sequentially. | 17 | | Section 50. Annual reports; contents. | 18 | | (a) The Department shall issue and make available to the
| 19 | | public, not later than July 1, 2023 and July 1 of each
| 20 | | subsequent year, annual reports providing data on family and | 21 | | medical leave
benefits claims including separate data for each | 22 | | of the
following categories of claims: the employee's own | 23 | | serious
illness; care of newborn children; care of newly | 24 | | adopted
children; care of seriously ill family members, because |
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| 1 | | of family members on active duty in the armed forces of the | 2 | | U.S.; and for domestic or sexual violence. The reports shall | 3 | | include, for
each category of claims, the number of workers | 4 | | receiving the
benefits, the amount of benefits paid, the | 5 | | average duration of
benefits, the average weekly benefit, and | 6 | | any reported amount
of sick leave, vacation, or other fully | 7 | | paid time which
resulted in reduced benefit duration. The | 8 | | report shall provide
data by gender and by any other | 9 | | demographic factors determined
to be relevant by the | 10 | | Department. The reports shall also
provide, for all family and | 11 | | medical leave benefits, the total costs of
benefits and the | 12 | | total cost of administration, the portion of
benefits for | 13 | | claims during family and medical leave, and the total revenues
| 14 | | from employer assessments, where applicable; employee
| 15 | | assessments; and other sources. | 16 | | (b) The Department may, in its discretion, conduct surveys
| 17 | | and other research regarding, and include in the annual reports
| 18 | | descriptions and evaluations of the impact and potential future
| 19 | | impact of the costs and benefits resulting from the provisions
| 20 | | of this Act for: | 21 | | (1) employees and their families, including surveys
| 22 | | and evaluations of what portion of the total number of
| 23 | | employees taking family and medical leave would not have | 24 | | taken leave, or would
have taken less leave, without the | 25 | | availability of
benefits; what portion of employees return | 26 | | to work after
receiving benefits and what portion are not |
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| 1 | | permitted to
return to work; and what portion of employees | 2 | | who are
eligible for benefits do not claim or receive them | 3 | | and why
they do not; | 4 | | (2) employers, including benefits such as reduced
| 5 | | training and other costs related to reduced turnover of
| 6 | | personnel, and increased affordability of family and | 7 | | medical leave
through the State, with special attention | 8 | | given to small
businesses; and | 9 | | (3) the public, including savings caused by any
| 10 | | reduction in the number of people receiving public
| 11 | | assistance. | 12 | | (c) The total amount of any expenses that the Department
| 13 | | determines are necessary to carry out its duties pursuant to
| 14 | | this Section shall be charged to the Administration Account of
| 15 | | the Fund. | 16 | | Section 55. Prohibited acts; enforcement. | 17 | | (a) No employer, temporary
employment agency, employment | 18 | | agency, employee organization,
or other person shall | 19 | | discharge, expel, or otherwise
retaliate or discriminate | 20 | | against a person because the person has requested family and | 21 | | medical leave, attempted to claim family and medical leave | 22 | | benefits, taken family and medical leave, filed or
communicated | 23 | | to the employer an intent to file a claim, a
complaint, or an | 24 | | appeal, or has testified or is about to testify
or has assisted | 25 | | in any proceeding, under this Act, at any time. |
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| 1 | | (b) Any employer who violates subsection (a) shall be | 2 | | liable to the individual employed by such a person who is | 3 | | affected by the violation for damages equal to the sum of: | 4 | | (1) the amount of: | 5 | | (A) any wages, salary, employment benefits, or | 6 | | other compensation denied or lost to such individual by | 7 | | reason of the violation; or | 8 | | (B) in a case in which wages, salary, employment | 9 | | benefits, or other compensation have not been denied or | 10 | | lost to the individual, any actual monetary losses | 11 | | sustained by the individual as a direct violation, such | 12 | | as the cost of providing care, up to a sum equal to 60 | 13 | | calendar days of wages or salary for the individual; | 14 | | and | 15 | | (2) the interest on the amount described under item (A) | 16 | | calculated at the prevailing rate; and | 17 | | (3) an additional amount as liquidated damages equal to | 18 | | the sum of the amount described in item (1) and the | 19 | | interest described in item (2), except if a person who has | 20 | | violated subsection (a) proves to the satisfaction of the | 21 | | court that the act or omission was in good faith and that | 22 | | the person had reasonable grounds for believing that the | 23 | | act or omission was not a violation of subsection (a), the | 24 | | court may, in the discretion of the court, reduce the | 25 | | amount of the liability to the amount and interest | 26 | | determined under item (A) and (B), respectively. |
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| 1 | | In addition, a court may order such equitable relief as may | 2 | | be appropriate, including employment, reinstatement, and | 3 | | promotion. | 4 | | (c) An action to recover the damages or obtain equitable | 5 | | relief subsection (a) may be maintained against any person in | 6 | | any court on behalf of: | 7 | | (1) the individual; or | 8 | | (2) the individual or other individuals similarly | 9 | | situated. | 10 | | (d) The court in such an action shall, in addition to any | 11 | | judgment awarded to the plaintiff, allow a reasonable | 12 | | attorney's fee, reasonable expert witness fees, and other costs | 13 | | of the action to be paid by the defendant. | 14 | | (e) The right under subsection (c) to bring an action by or | 15 | | on behalf of any individual shall terminate: | 16 | | (1) on the filing of a complaint by the Department in | 17 | | an action in which restraint is sought of any further delay | 18 | | in the payment of the amount described in item (1) of | 19 | | subsection (b) to such individual by the person responsible | 20 | | under subsection (a) for the payment; or | 21 | | (2) on the filing of a complaint by the Department in | 22 | | an action under subsection (f) in which a recovery is | 23 | | sought of the damages described in item (1) of subsection | 24 | | (b) owing to an individual by a person liable under | 25 | | subsection (a). | 26 | | (f) Action by the Department. |
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| 1 | | (1) The Department may bring an action in any court to | 2 | | recover the damages described in item (1) of subsection | 3 | | (b). | 4 | | (2) Any sums recovered pursuant to item (1) of this | 5 | | subsection shall be held in a special deposit account and | 6 | | shall be paid, on order of the Department, directly to each | 7 | | individual affected. Any such sums not paid to an | 8 | | individual because of inability to do so within a period of | 9 | | 3 years shall be deposited into the Fund. | 10 | | (3) An action may be brought under this subsection not | 11 | | later than 3 years after the date of the last event | 12 | | constituting the alleged violation for which the action is | 13 | | brought. | 14 | | (4) An action brought by the Department under this | 15 | | subsection shall be considered to be commenced on the date | 16 | | when the complaint is filed. | 17 | | (5) The Department may bring an action to restrain | 18 | | violations of subsection (a), including the restraint of | 19 | | any withholding of payment of wages, salary, employment | 20 | | benefits, or other compensation, plus interest, found by | 21 | | the court to be due to the individual, or to award such | 22 | | other equitable relief as may be appropriate, including | 23 | | employment, reinstatement, and promotion. | 24 | | (g) A person aggrieved by a decision of the Department | 25 | | under this Act may request a hearing. The Department shall | 26 | | adopt rules governing hearings and the issuance of final orders |
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| 1 | | under this Act in accordance with the provisions of the | 2 | | Illinois Administrative Procedure Act. All final | 3 | | administrative decisions of the Department under this Act are | 4 | | subject to judicial review under the Administrative Review Law. | 5 | | Section 60. Penalties.
| 6 | | (a) Persons who make a false statement or representation,
| 7 | | knowing it to be false, or knowingly fails to disclose a
| 8 | | material fact to obtain or increase any family and medical | 9 | | leave benefit
during a period of family and medical leave, | 10 | | either for themselves
or for any other person, shall be liable | 11 | | for a civil penalty of
$250 to be paid to the Fund. Each such | 12 | | false statement or
representation or failure to disclose a | 13 | | material fact shall
constitute a separate offense. Upon refusal | 14 | | to pay such civil
penalty, the civil penalty shall be recovered | 15 | | in a civil action
by the Attorney General on behalf the | 16 | | Department in the name of
the State of Illinois. If, in any | 17 | | case in which liability for
the payment of a civil penalty has | 18 | | been determined, any person
who has received any benefits under | 19 | | this Act by reason of the
making of such false statements or | 20 | | representations or failure
to disclose a material fact shall | 21 | | not be entitled to any
benefits under this Act for any leave | 22 | | occurring prior to the
time he or she has discharged his or her | 23 | | liability to pay the
civil penalty. | 24 | | (b) A person who willfully violates any provision of this
| 25 | | Act or any rule adopted under this Act for which a civil
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| 1 | | penalty is neither prescribed in this Act nor provided by any
| 2 | | other applicable law shall be subject to a civil penalty of
| 3 | | $500 to be paid to the Fund. Upon the refusal to pay such
civil | 4 | | penalty, the civil penalty shall be recovered in a civil
action | 5 | | by the Attorney General on behalf of the Department in
the name | 6 | | of the State of Illinois.
| 7 | | (c) A person, employing unit, employer, or entity violating
| 8 | | any provision of this Section with intent to defraud the
| 9 | | Department is guilty of a Class C misdemeanor. The fine upon
| 10 | | conviction shall be payable to the Fund. Any penalties imposed
| 11 | | by this subsection shall be in addition to those otherwise
| 12 | | prescribed in this Section. | 13 | | Section 65. Leave and employment protection. | 14 | | (a) During a period in which an employee receives family | 15 | | leave benefits under this Act, the employee is entitled to | 16 | | family leave and, at the established ending date of leave, to | 17 | | be restored to a position of employment with the employer from | 18 | | whom leave was taken as provided under subsection (b). | 19 | | (b) Except as provided in subsection (f), an employee who
| 20 | | receives family and medical leave benefits under this Act for | 21 | | the intended
purpose of the family and medical leave is | 22 | | entitled, on return from the
leave:
| 23 | | (1) to be restored by the employer to the position of
| 24 | | employment held by the employee when the family and medical | 25 | | leave
commenced; or |
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| 1 | | (2)
to be restored to an equivalent position with
| 2 | | equivalent employment benefits, pay, and other terms and
| 3 | | conditions of employment at a workplace within 5 miles of
| 4 | | the employee's workplace when the family and medical leave | 5 | | commenced. | 6 | | (c) The taking of family and medical leave under this Act | 7 | | may not
result in the loss of any employment benefits accrued | 8 | | before
the date on which the family and medical leave | 9 | | commenced. | 10 | | (d) Nothing in this Section entitles a restored employee
| 11 | | to: | 12 | | (1) the accrual of any seniority or employment benefits
| 13 | | during any period of family and medical leave; or
| 14 | | (2) any right, benefit, or position of employment other
| 15 | | than any right, benefit, or position to which the employee
| 16 | | would have been entitled to had the employee not taken the
| 17 | | family and medical leave. | 18 | | (e) Nothing in this Section prohibits an employer from
| 19 | | requiring an employee on family and medical leave to report | 20 | | periodically to
the employer on the status and intention of the | 21 | | employee to
return to work. | 22 | | (f) An employer may deny restoration under subsection (b)
| 23 | | to a salaried employee who is among the highest paid 10% of the
| 24 | | employees employed by the employer within 75 miles of the
| 25 | | facility at which the employee is employed if:
| 26 | | (1) denial is necessary to prevent substantial and
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| 1 | | grievous economic injury to the operations of the employer; | 2 | | (2) the employer notifies the employee of the intent of
| 3 | | the employer to deny restoration on such basis at the time
| 4 | | the employer determines that the injury would occur; and | 5 | | (3) the family and medical leave has commenced and the | 6 | | employee
elects not to return to employment after receiving | 7 | | the
notice. | 8 | | Section 70. Notice to employer. | 9 | | (a) If the necessity for family and medical leave for the | 10 | | birth or
placement of a child or for any other reason under | 11 | | item (14) of Section 10 is foreseeable, the employee shall | 12 | | provide the employer with not
less than 30 days' notice, before | 13 | | the date the leave is to
begin, of the employee's intention to | 14 | | take leave for the birth
or placement of a child or for any | 15 | | other reason under item (14) of Section 10, except that if the | 16 | | expected date requires leave to begin in less than 30 days, the
| 17 | | employee shall provide such notice as is practical. | 18 | | Section 75. Employment by same employer. If spouses or | 19 | | parties to a civil union who are
entitled to leave under this | 20 | | Act are employed by the same
employer, the employer may not | 21 | | require that spouses or parties to a civil union not take such
| 22 | | leave concurrently. | 23 | | Section 80. Coordination of leave. |
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| 1 | | (a) Family and medical leave taken under this Act must be | 2 | | taken
concurrently with any leave taken under the federal | 3 | | Family and
Medical Leave Act of 1993. | 4 | | (b) An employer may require that family and medical leave | 5 | | taken under
this Act be taken concurrently with
leave allowed | 6 | | under the terms of a collective bargaining
agreement or | 7 | | employer policy. The employer must give employees written | 8 | | notice of this requirement. | 9 | | Section 85. Rules. The Department may adopt any rules
| 10 | | necessary to implement the provisions of this Act. In adopting
| 11 | | rules, the Department shall maintain consistency with the
| 12 | | regulations adopted to implement the Federal Family and Medical
| 13 | | Leave Act of 1993 as of the effective date of this Act to the | 14 | | extent such regulations are not in
conflict with this Act.
| 15 | | Section 90. Authority to contract. The Department may
| 16 | | contract or enter into interagency agreements with other State
| 17 | | agencies for the initial administration of the Family and | 18 | | Medical Leave Insurance Act
| 19 | | Section 175. Severability. The provisions of this Act are | 20 | | severable under Section 1.31 of the Statute on Statutes. | 21 | | Section 900. The State Finance Act is amended by adding | 22 | | Section 5.891 as follows: |
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| 1 | | (30 ILCS 105/5.891 new) | 2 | | Sec. 5.891. The Family and Medical Leave Insurance Fund. | 3 | | Section 999. Effective date. This Act takes effect January | 4 | | 1, 2020.".
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