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91_HB0002eng HB0002 Engrossed LRB9100350WHmg 1 AN ACT to grant family and temporary medical leave under 2 certain circumstances. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL 6 REQUIREMENTS FOR LEAVE 7 Section 100. Short title. This Act may be cited as the 8 Illinois Family and Medical Leave Act. 9 Section 100.1. Findings and purposes. 10 (a) Findings. The General Assembly finds that: 11 (1) the number of single-parent households and 12 two-parent households in which the single parent or both 13 parents work is increasing significantly; 14 (2) it is important for the development of children 15 and the family unit that fathers and mothers be able to 16 participate in early child rearing and the care of family 17 members who have serious health conditions; 18 (3) the lack of employment policies to accommodate 19 working parents can force individuals to choose between 20 job security and parenting; 21 (4) there is inadequate job security for employees 22 who have serious health conditions that prevent them from 23 working for temporary periods; 24 (5) due to the nature of the roles of men and women 25 in our society, the primary responsibility for family 26 caretaking often falls on women, and such responsibility 27 affects the working lives of women more than it affects 28 the working lives of men; and 29 (6) employment standards that apply to one gender 30 only have serious potential for encouraging employers to HB0002 Engrossed -2- LRB9100350WHmg 1 discriminate against employees and applicants for 2 employment who are of that gender. 3 (b) Purposes. It is the purpose of this Act: 4 (1) to balance the demands of the workplace with the 5 needs of families, to promote the stability and economic 6 security of families, and to promote national interests 7 in preserving family integrity; 8 (2) to entitle employees to take reasonable leave 9 for medical reasons, for the birth or adoption of a 10 child, and for the care of a child, spouse, or parent who 11 has a serious health condition; 12 (3) to accomplish the purposes described in 13 paragraphs (1) and (2) in a manner that accommodates the 14 legitimate interests of employers; 15 (4) to accomplish the purposes described in 16 paragraphs (1) and (2) in a manner that, consistent with 17 the Equal Protection Clause of the Fourteenth Amendment, 18 minimizes the potential for employment discrimination on 19 the basis of sex by ensuring generally that leave is 20 available for eligible medical reasons (including 21 maternity-related disability) and for compelling family 22 reasons, on a gender-neutral basis; and 23 (5) to promote the goal of equal employment 24 opportunity for women and men, pursuant to such clause. 25 Section 101. Definitions. As used in this Article: 26 (1) (Blank). 27 (2) Eligible Employee. 28 (A) In General. The term "eligible employee" means 29 an employee who has been employed: 30 (i) for at least 12 months by the employer with 31 respect to whom leave is requested under Section 32 102; and 33 (ii) for at least 1,250 hours of service with HB0002 Engrossed -3- LRB9100350WHmg 1 such employer during the previous 12-month period. 2 (B) Exclusions. The term "eligible employee" does 3 not include: 4 (i) any Federal officer or employee covered 5 under Subchapter V of Chapter 63 of Title 5, United 6 States Code; or 7 (ii) any employee of an employer who is 8 employed at a work site at which such employer 9 employs less than 25 employees if the total number 10 of employees employed by that employer within 75 11 miles of that work site is less than 25. 12 (C) Determination. For purposes of determining 13 whether an employee meets the hours of service 14 requirement specified in subparagraph (A)(ii), the legal 15 standards established under Section 7 of the Fair Labor 16 Standards Act of 1938 (29 U.S.C. 207) shall apply. 17 (3) Employ; Employee; State. The terms "employ", 18 "employee", and "State" have the same meanings given such 19 terms in subsections (c), (e), and (g) of Section 3 of the 20 Fair Labor Standards Act of 1938 (29 U.S.C. 203 (c), (e), and 21 (g)). 22 (4) Employer. 23 (A) In general. The term "employer": 24 (i) means any person who employs 25 or more 25 employees for each working day during each of 20 or 26 more calendar workweeks in the current or preceding 27 calendar year; 28 (ii) includes: 29 (I) any person who acts, directly or 30 indirectly, in the interest of an employer to 31 any of the employees of such employer; and 32 (II) any successor in interest of an 33 employer; and 34 (iii) includes any State officer, department, HB0002 Engrossed -4- LRB9100350WHmg 1 or agency, any unit of local government, and any 2 school district. 3 (B) (Blank). 4 (5) Employment benefits. The term "employment benefits" 5 means all benefits provided or made available to employees by 6 an employer, including group life insurance, health 7 insurance, disability insurance, sick leave, annual leave, 8 educational benefits, and pensions, regardless of whether 9 such benefits are provided by a practice or written policy of 10 an employer or through an "employee benefit plan", as defined 11 in Section 3(3) of the Employee Retirement Income Security 12 Act of 1974 (29 U.S.C. 1002(3)). 13 (6) Health care provider. The term "health care provider" 14 means: 15 (A) a doctor of medicine or osteopathy who is 16 authorized to practice medicine or surgery (as 17 appropriate) by the State in which the doctor practices; 18 or 19 (B) any other person determined by the Director to 20 be capable of providing health care services. 21 (7) Parent. The term "parent" means the biological parent 22 of an employee or an individual who stood in loco parentis to 23 an employee when the employee was a son or daughter. 24 (8) Person. The term "person" has the same meaning given 25 such term in Section 3(a) of the Fair Labor Standards Act of 26 1938 (29 U.S.C. 203(a)). 27 (9) Reduced leave schedule. The term "reduced leave 28 schedule" means a leave schedule that reduces the usual 29 number of hours per workweek, or hours per workday, of an 30 employee. 31 (10) Director. The term "Director" means the Director of 32 Labor. 33 (11) Serious health condition. The term "serious health 34 condition" means an illness, injury, impairment, or physical HB0002 Engrossed -5- LRB9100350WHmg 1 or mental condition that involves: 2 (A) inpatient care in a hospital, hospice, or 3 residential medical care facility; or 4 (B) continuing treatment by a health care provider. 5 (12) Son or daughter. The term "son or daughter" means a 6 biological, adopted, or foster child, a stepchild, a legal 7 ward, or a child of a person standing in loco parentis, who 8 is: 9 (A) under 18 years of age; or 10 (B) 18 years of age or older and incapable of 11 self-care because of a mental or physical disability. 12 (13) Spouse. The term "spouse" means a husband or wife, 13 as the case may be. 14 Section 102. Leave requirement. 15 (a) In general. 16 (1) Entitlement to leave. Subject to Section 103, an 17 eligible employee shall be entitled to a total of 12 18 workweeks of leave during any 12-month period for one or 19 more of the following: 20 (A) Because of the birth of a son or daughter 21 of the employee and in order to care for such son or 22 daughter. 23 (B) Because of the placement of a son or 24 daughter with the employee for adoption or foster 25 care. 26 (C) In order to care for the spouse, or a son, 27 daughter, or parent, of the employee, if such 28 spouse, son, daughter, or parent has a serious 29 health condition. 30 (D) Because of a serious health condition that 31 makes the employee unable to perform the functions 32 of the position of such employee. 33 (2) Expiration of entitlement. The entitlement to HB0002 Engrossed -6- LRB9100350WHmg 1 leave under subparagraphs (A) and (B) of paragraph (1) 2 for a birth or placement of a son or daughter shall 3 expire at the end of the 12-month period beginning on the 4 date of such birth or placement. 5 (b) Leave taken intermittently or on a reduced leave 6 schedule. 7 (1) In general. Leave under subparagraph (A) or (B) 8 of subsection (a)(1) shall not be taken by an employee 9 intermittently or on a reduced leave schedule unless the 10 employee and the employer of the employee agree 11 otherwise. Subject to paragraph (2), subsection (e)(2), 12 and Section 103(b)(5), leave under subparagraph (C) or 13 (D) of subsection (a)(1) may be taken intermittently or 14 on a reduced leave schedule when medically necessary. The 15 taking of leave intermittently or on a reduced leave 16 schedule pursuant to this paragraph shall not result in a 17 reduction in the total amount of leave to which the 18 employee is entitled under subsection (a) beyond the 19 amount of leave actually taken. 20 (2) Alternative position. If an employee requests 21 intermittent leave, or leave on a reduced leave schedule, 22 under subparagraph (C) or (D) of subsection (a)(1), that 23 is foreseeable based on planned medical treatment, the 24 employer may require such employee to transfer 25 temporarily to an available alternative position offered 26 by the employer for which the employee is qualified and 27 that: 28 (A) has equivalent pay and benefits; and 29 (B) better accommodates recurring periods of 30 leave than the regular employment position of the 31 employee. 32 (c) Unpaid leave permitted. Except as provided in 33 subsection (d), leave granted under subsection (a) may 34 consist of unpaid leave. Where an employee is otherwise HB0002 Engrossed -7- LRB9100350WHmg 1 exempt under regulations issued by the Secretary of the U.S. 2 Department of Labor pursuant to Section 13(a)(1) of the Fair 3 Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the 4 compliance of an employer with this Article by providing 5 unpaid leave shall not affect the exempt status of the 6 employee under such Section. 7 (d) Relationship to paid leave. 8 (1) Unpaid leave. If an employer provides paid leave 9 for fewer than 12 workweeks, the additional weeks of 10 leave necessary to attain the 12 workweeks of leave 11 required under this Article may be provided without 12 compensation. 13 (2) Substitution of paid leave. 14 (A) In general. An eligible employee may elect, 15 or an employer may require the employee, to 16 substitute any of the accrued paid vacation leave, 17 personal leave, or family leave of the employee for 18 leave provided under subparagraph (A), (B), or (C) 19 of subsection (a)(1) for any part of the 12-week 20 period of such leave under such subsection. 21 (B) Serious health condition. An eligible 22 employee may elect, or an employer may require the 23 employee, to substitute any of the accrued paid 24 vacation leave, personal leave, or medical or sick 25 leave of the employee for leave provided under 26 subparagraph (C) or (D) of subsection (a)(1) for any 27 part of the 12-week period of such leave under such 28 subsection, except that nothing in this Article 29 shall require an employer to provide paid sick leave 30 or paid medical leave in any situation in which 31 such employer would not normally provide any such 32 paid leave. 33 (e) Foreseeable leave. 34 (1) Requirement of notice. In any case in which the HB0002 Engrossed -8- LRB9100350WHmg 1 necessity for leave under subparagraph (A) or (B) of 2 subsection (a)(1) is foreseeable based on an expected 3 birth or placement, the employee shall provide the 4 employer with not less than 30 days' notice, before the 5 date the leave is to begin, of the employee's intention 6 to take leave under such subparagraph, except that if the 7 date of the birth or placement requires leave to begin 8 in less than 30 days, the employee shall provide such 9 notice as is practicable. 10 (2) Duties of employee. In any case in which the 11 necessity for leave under subparagraph (C) or (D) of 12 subsection (a)(1) is foreseeable based on planned medical 13 treatment, the employee: 14 (A) shall make a reasonable effort to schedule 15 the treatment so as not to disrupt unduly the 16 operations of the employer, subject to the approval 17 of the health care provider of the employee or the 18 health care provider of the son, daughter, spouse, 19 or parent of the employee, as appropriate; and 20 (B) shall provide the employer with not less 21 than 30 days' notice, before the date the leave is 22 to begin, of the employee's intention to take leave 23 under such subparagraph, except that if the date of 24 the treatment requires leave to begin in less than 25 30 days, the employee shall provide such notice as 26 is practicable. 27 (f) Spouses employed by the same employer. In any case in 28 which a husband and wife entitled to leave under subsection 29 (a) are employed by the same employer, the aggregate number 30 of workweeks of leave to which both may be entitled may be 31 limited to 12 workweeks during any 12-month period, if such 32 leave is taken: 33 (1) under subparagraph (A) or (B) of subsection 34 (a)(1); or HB0002 Engrossed -9- LRB9100350WHmg 1 (2) to care for a sick parent under subparagraph (C) 2 of such subsection. 3 Section 103. Certification. 4 (a) In general. An employer may require that a request 5 for leave under subparagraph (C) or (D) of Section 102(a)(1) 6 be supported by a certification issued by the health care 7 provider of the eligible employee or of the son, daughter, 8 spouse, or parent of the employee, as appropriate. The 9 employee shall provide, in a timely manner, a copy of such 10 certification to the employer. 11 (b) Sufficient certification. Certification provided 12 under subsection (a) shall be sufficient if it states: 13 (1) the date on which the serious health condition 14 commenced; 15 (2) the probable duration of the condition; 16 (3) the appropriate medical facts within the 17 knowledge of the health care provider regarding the 18 condition; 19 (4)(A) for purposes of leave under Section 20 102(a)(1)(C), a statement that the eligible employee is 21 needed to care for the son, daughter, spouse, or parent 22 and an estimate of the amount of time that such employee 23 is needed to care for the son, daughter, spouse, or 24 parent; and 25 (B) for purposes of leave under Section 26 102(a)(1)(D), a statement that the employee is unable to 27 perform the functions of the position of the employee; 28 (5) in the case of certification for intermittent 29 leave, or leave on a reduced leave schedule, for planned 30 medical treatment, the dates on which such treatment is 31 expected to be given and the duration of such treatment; 32 (6) in the case of certification for intermittent 33 leave, or leave on a reduced leave schedule, under HB0002 Engrossed -10- LRB9100350WHmg 1 Section 102(a)(1)(D), a statement of the medical 2 necessity for the intermittent leave or leave on a 3 reduced leave schedule, and the expected duration of the 4 intermittent leave or reduced leave schedule; and 5 (7) in the case of certification for intermittent 6 leave, or leave on a reduced leave schedule, under 7 Section 102(a)(1)(C), a statement that the employee's 8 intermittent leave or leave on a reduced leave schedule 9 is necessary for the care of the son, daughter, parent, 10 or spouse who has a serious health condition, or will 11 assist in their recovery, and the expected duration and 12 schedule of the intermittent leave or reduced leave 13 schedule. 14 (c) Second opinion. 15 (1) In general. In any case in which the employer 16 has reason to doubt the validity of the certification 17 provided under subsection (a) for leave under 18 subparagraph (C) or (D) of Section 102(a)(1), the 19 employer may require, at the expense of the employer, 20 that the eligible employee obtain the opinion of a 21 second health care provider designated or approved by the 22 employer concerning any information certified under 23 subsection (b) for such leave. 24 (2) Limitation. A health care provider designated or 25 approved under paragraph (1) shall not be employed on a 26 regular basis by the employer. 27 (d) Resolution of conflicting opinions. 28 (1) In general. In any case in which the second 29 opinion described in subsection (c) differs from the 30 opinion in the original certification provided under 31 subsection (a), the employer may require, at the expense 32 of the employer, that the employee obtain the opinion of 33 a third health care provider designated or approved 34 jointly by the employer and the employee concerning the HB0002 Engrossed -11- LRB9100350WHmg 1 information certified under subsection (b). 2 (2) Finality. The opinion of the third health care 3 provider concerning the information certified under 4 subsection (b) shall be considered to be final and shall 5 be binding on the employer and the employee. 6 (e) Subsequent recertification. The employer may require 7 that the eligible employee obtain subsequent recertifications 8 on a reasonable basis. 9 Section 104. Employment and benefits protection. 10 (a) Restoration to position. 11 (1) In general. Except as provided in subsection 12 (b), any eligible employee who takes leave under Section 13 102 for the intended purpose of the leave shall be 14 entitled, on return from such leave: 15 (A) to be restored by the employer to the 16 position of employment held by the employee when the 17 leave commenced; or 18 (B) to be restored to an equivalent position 19 with equivalent employment benefits, pay, and other 20 terms and conditions of employment. 21 (2) Loss of benefits. The taking of leave under 22 Section 102 shall not result in the loss of any 23 employment benefit accrued prior to the date on which the 24 leave commenced. 25 (3) Limitations. Nothing in this Section shall be 26 construed to entitle any restored employee to: 27 (A) the accrual of any seniority or employment 28 benefits during any period of leave; or 29 (B) any right, benefit, or position of 30 employment other than any right, benefit, or 31 position to which the employee would have been 32 entitled had the employee not taken the leave. 33 (4) Certification. As a condition of restoration HB0002 Engrossed -12- LRB9100350WHmg 1 under paragraph (1) for an employee who has taken leave 2 under Section 102(a)(1)(D), the employer may have a 3 uniformly applied practice or policy that requires each 4 such employee to receive certification from the health 5 care provider of the employee that the employee is able 6 to resume work, except that nothing in this paragraph 7 shall supersede a valid State or local law or a 8 collective bargaining agreement that governs the return 9 to work of such employees. 10 (5) Construction. Nothing in this subsection shall 11 be construed to prohibit an employer from requiring an 12 employee on leave under Section 102 to report 13 periodically to the employer on the status and intention 14 of the employee to return to work. 15 (b) Exemption concerning certain highly compensated 16 employees. 17 (1) Denial of restoration. An employer may deny 18 restoration under subsection (a) to any eligible employee 19 described in paragraph (2) if: 20 (A) such denial is necessary to prevent 21 substantial and grievous economic injury to the 22 operations of the employer; 23 (B) the employer notifies the employee of the 24 intent of the employer to deny restoration on such 25 basis at the time the employer determines that such 26 injury would occur; and 27 (C) in any case in which the leave has 28 commenced, the employee elects not to return to 29 employment after receiving such notice. 30 (2) Affected employees. An eligible employee 31 described in paragraph (1) is a salaried eligible 32 employee who is among the highest paid 10 percent of the 33 employees employed by the employer within 75 miles of the 34 facility at which the employee is employed. HB0002 Engrossed -13- LRB9100350WHmg 1 (c) Maintenance of health benefits. 2 (1) Coverage. Except as provided in paragraph (2), 3 during any period that an eligible employee takes leave 4 under Section 102, the employer shall maintain coverage 5 under any "group health plan" (as defined in Section 6 5000(b)(1) of the Internal Revenue Code of 1986) for the 7 duration of such leave at the level and under the 8 conditions coverage would have been provided if the 9 employee had continued in employment continuously for the 10 duration of such leave. 11 (2) Failure to return from leave. The employer may 12 recover the premium that the employer paid for 13 maintaining coverage for the employee under such group 14 health plan during any period of unpaid leave under 15 Section 102 if: 16 (A) the employee fails to return from leave 17 under Section 102 after the period of leave to which 18 the employee is entitled has expired; and 19 (B) the employee fails to return to work for a 20 reason other than: 21 (i) the continuation, recurrence, or onset 22 of a serious health condition that entitles the 23 employee to leave under subparagraph (C) or (D) 24 of Section 102(a)(1); or 25 (ii) other circumstances beyond the 26 control of the employee. 27 (3) Certification. 28 (A) Issuance. An employer may require that a 29 claim that an employee is unable to return to work 30 because of the continuation, recurrence, or onset of 31 the serious health condition described in paragraph 32 (2)(B)(i) be supported by: 33 (i) a certification issued by the health 34 care provider of the son, daughter, spouse, or HB0002 Engrossed -14- LRB9100350WHmg 1 parent of the employee, as appropriate, in the 2 case of an employee unable to return to work 3 because of a condition specified in Section 4 102(a)(1)(C); or 5 (ii) a certification issued by the health 6 care provider of the eligible employee, in the 7 case of an employee unable to return to work 8 because of a condition specified in Section 9 102(a)(1)(D). 10 (B) Copy. The employee shall provide, in a 11 timely manner, a copy of such certification to the 12 employer. 13 (C) Sufficiency of certification. 14 (i) Leave due to serious health condition 15 of employee. The certification described in 16 subparagraph (A)(ii) shall be sufficient if the 17 certification states that a serious health 18 condition prevented the employee from being 19 able to perform the functions of the position 20 of the employee on the date that the leave of 21 the employee expired. 22 (ii) Leave due to serious health condition 23 of family member. The certification described 24 in subparagraph (A)(i) shall be sufficient if 25 the certification states that the employee is 26 needed to care for the son, daughter, spouse, 27 or parent who has a serious health condition on 28 the date that the leave of the employee 29 expired. 30 Section 105. Prohibited Acts. 31 (a) Interference with rights. 32 (1) Exercise of rights. It shall be unlawful for any 33 employer to interfere with, restrain, or deny the HB0002 Engrossed -15- LRB9100350WHmg 1 exercise of or the attempt to exercise, any right 2 provided under this Article. 3 (2) Discrimination. It shall be unlawful for any 4 employer to discharge or in any other manner discriminate 5 against any individual for opposing any practice made 6 unlawful by this Article. 7 (b) Interference with proceedings or inquiries. It shall 8 be unlawful for any person to discharge or in any other 9 manner discriminate against any individual because such 10 individual: 11 (1) has filed any charge, or has instituted or 12 caused to be instituted any proceeding, under or related 13 to this Article; 14 (2) has given, or is about to give, any information 15 in connection with any inquiry or proceeding relating to 16 any right provided under this Article; or 17 (3) has testified, or is about to testify, in any 18 inquiry or proceeding relating to any right provided 19 under this Article. 20 Section 106. Investigative authority. 21 (a) In general. To ensure compliance with the provisions 22 of this Article, or any rule or order issued under this 23 Article, the Director shall have, subject to subsection (c), 24 the authority to investigate complaints. 25 (b) Obligation to keep and preserve records. Any employer 26 shall make, keep, and preserve records pertaining to 27 compliance with this Article in accordance with rules adopted 28 by the Director. 29 (c) Required submissions generally limited to an annual 30 basis. The Director shall not under the authority of this 31 Section require any employer or any plan, fund, or program to 32 submit to the Director any books or records more than once 33 during any 12-month period, unless the Director has HB0002 Engrossed -16- LRB9100350WHmg 1 reasonable cause to believe there may exist a violation of 2 this Article or any rule or order issued pursuant to this 3 Article, or is investigating a charge pursuant to Section 4 107(b). 5 (d) Subpoena powers. For the purposes of any 6 investigation provided for in this Section, the Director 7 shall have the authority to issue subpoenas. 8 Section 107. Enforcement. 9 (a) Civil action by employees. 10 (1) Liability. Any employer who violates Section 105 11 shall be liable to any eligible employee affected: 12 (A) for damages equal to: 13 (i) the amount of: 14 (I) any wages, salary, employment 15 benefits, or other compensation denied or 16 lost to such employee by reason of the 17 violation; or 18 (II) in a case in which wages, 19 salary, employment benefits, or other 20 compensation have not been denied or lost 21 to the employee, any actual monetary 22 losses sustained by the employee as a 23 direct result of the violation, such as 24 the cost of providing care, up to a sum 25 equal to 12 weeks of wages or salary for 26 the employee; 27 (ii) the interest on the amount described 28 in clause (i) calculated at the rate of 29 interest on judgments set forth in Section 30 2-1303 of the Code of Civil Procedure; and 31 (iii) an additional amount as liquidated 32 damages equal to the sum of the amount 33 described in clause (i) and the interest HB0002 Engrossed -17- LRB9100350WHmg 1 described in clause (ii), except that if an 2 employer who has violated Section 105 proves to 3 the satisfaction of the court that the act or 4 omission which violated Section 105 was in good 5 faith and that the employer had reasonable 6 grounds for believing that the act or omission 7 was not a violation of Section 105, such court 8 may, in the discretion of the court, reduce the 9 amount of the liability to the amount and 10 interest determined under clauses (i) and (ii), 11 respectively; and 12 (B) for such equitable relief as may be 13 appropriate, including employment, reinstatement, 14 and promotion. 15 (2) Right of action. An action to recover the 16 damages or equitable relief prescribed in paragraph (1) 17 may be maintained against any employer (including a 18 public agency) in the circuit court by any one or more 19 employees for and in behalf of: 20 (A) the employees; or 21 (B) the employees and other employees similarly 22 situated. 23 (3) Fees and costs. The court in such an action 24 shall, in addition to any judgment awarded to the 25 plaintiff, allow a reasonable attorney's fee, reasonable 26 expert witness fees, and other costs of the action to be 27 paid by the defendant. 28 (4) Limitations. The right provided by paragraph (2) 29 to bring an action by or on behalf of any employee shall 30 terminate: 31 (A) on the filing of a complaint by the 32 Director in an action under subsection (d) in which 33 restraint is sought of any further delay in the 34 payment of the amount described in paragraph (1)(A) HB0002 Engrossed -18- LRB9100350WHmg 1 to such employee by an employer responsible under 2 paragraph (1) for the payment; or 3 (B) on the filing of a complaint by the 4 Director in an action under subsection (b) in which 5 a recovery is sought of the damages described in 6 paragraph (1)(A) owing to an eligible employee by an 7 employer liable under paragraph (1), unless the 8 action described in subparagraph (A) or (B) is 9 dismissed without prejudice on motion of the 10 Director. 11 (b) Action by the Director. 12 (1) Administrative action. The Director shall 13 receive, investigate, and attempt to resolve complaints 14 of violations of Section 105. 15 (2) Civil action. The Director may bring an action 16 in the circuit court to recover the damages described in 17 subsection (a)(1)(A). 18 (3) Sums recovered. Any sums recovered by the 19 Director pursuant to paragraph (2) shall be held in a 20 special deposit account and shall be paid, on order of 21 the Director, directly to each employee affected. Any 22 such sums not paid to an employee because of inability 23 to do so within a period of 3 years shall be deposited 24 into the General Revenue Fund. 25 (c) Limitation. 26 (1) In general. Except as provided in paragraph (2), 27 an action may be brought under this Section not later 28 than 2 years after the date of the last event 29 constituting the alleged violation for which the action 30 is brought. 31 (2) Willful violation. In the case of such action 32 brought for a willful violation of Section 105, such 33 action may be brought within 3 years of the date of the 34 last event constituting the alleged violation for which HB0002 Engrossed -19- LRB9100350WHmg 1 such action is brought. 2 (3) Commencement. In determining when an action is 3 commenced by the Director under this Section for the 4 purposes of this subsection, it shall be considered to be 5 commenced on the date when the complaint is filed. 6 (d) Action for injunction by Director. The circuit court 7 shall have jurisdiction, for cause shown, in an action 8 brought by the Director: 9 (1) to restrain violations of Section 105, including 10 the restraint of any withholding of payment of wages, 11 salary, employment benefits, or other compensation, plus 12 interest, found by the court to be due to eligible 13 employees; or 14 (2) to award such other equitable relief as may be 15 appropriate, including employment, reinstatement, and 16 promotion. 17 Section 108. Special rules concerning employees of local 18 educational agencies. 19 (a) Application. 20 (1) In general. Except as otherwise provided in this 21 Section, the rights (including the rights under Section 22 104, which shall extend throughout the period of leave of 23 any employee under this Section), remedies, and 24 procedures under this Article shall apply to: 25 (A) any "local educational agency" (as defined 26 in Section 1471(12) of the Elementary and Secondary 27 Education Act of 1965 (20 U.S.C. 2891(12)) and an 28 eligible employee of the agency; and 29 (B) any private elementary or secondary school 30 and an eligible employee of the school. 31 (2) Definitions. For purposes of the application 32 described in paragraph (1): 33 (A) Eligible employee. The term "eligible HB0002 Engrossed -20- LRB9100350WHmg 1 employee" means an eligible employee of an agency or 2 school described in paragraph (1). 3 (B) Employer. The term "employer" means an 4 agency or school described in paragraph (1). 5 (b) Leave does not violate certain other federal laws. A 6 local educational agency and a private elementary or 7 secondary school shall not be in violation of the Individuals 8 with Disabilities Education Act (20 U.S.C. 1400 et seq.), 9 Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 10 794), or title VI of the Civil Rights Act of 1964 (42 U.S.C. 11 2000d et seq.), solely as a result of an eligible employee of 12 such agency or school exercising the rights of such employee 13 under this Article. 14 (c) Intermittent leave or leave on a reduced schedule for 15 instructional employees. 16 (1) In general. Subject to paragraph (2), in any 17 case in which an eligible employee employed principally 18 in an instructional capacity by any such educational 19 agency or school requests leave under subparagraph (C) or 20 (D) of Section 102(a)(1) that is foreseeable based on 21 planned medical treatment and the employee would be on 22 leave for greater than 20 percent of the total number of 23 working days in the period during which the leave would 24 extend, the agency or school may require that such 25 employee elect either: 26 (A) to take leave for periods of a particular 27 duration, not to exceed the duration of the planned 28 medical treatment; or 29 (B) to transfer temporarily to an available 30 alternative position offered by the employer for 31 which the employee is qualified, and that: 32 (i) has equivalent pay and benefits; and 33 (ii) better accommodates recurring periods 34 of leave than the regular employment position HB0002 Engrossed -21- LRB9100350WHmg 1 of the employee. 2 (2) Application. The elections described in 3 subparagraphs (A) and (B) of paragraph (1) shall apply 4 only with respect to an eligible employee who complies 5 with Section 102(e)(2). 6 (d) Rules applicable to periods near the conclusion of an 7 academic term. The following rules shall apply with respect 8 to periods of leave near the conclusion of an academic term 9 in the case of any eligible employee employed principally in 10 an instructional capacity by any such educational agency or 11 school: 12 (1) Leave more than 5 weeks prior to end of term. If 13 the eligible employee begins leave under Section 102 more 14 than 5 weeks prior to the end of the academic term, the 15 agency or school may require the employee to continue 16 taking leave until the end of such term, if: 17 (A) the leave is of at least 3 weeks duration; 18 and 19 (B) the return to employment would occur during 20 the 3-week period before the end of such term. 21 (2) Leave less than 5 weeks prior to end of term. If 22 the eligible employee begins leave under subparagraph 23 (A), (B), or (C) of Section 102(a)(1) during the period 24 that commences 5 weeks prior to the end of the academic 25 term, the agency or school may require the employee to 26 continue taking leave until the end of such term, if: 27 (A) the leave is of greater than 2 weeks 28 duration; and 29 (B) the return to employment would occur during 30 the 2-week period before the end of such term. 31 (3) Leave less than 3 weeks prior to end of term. If 32 the eligible employee begins leave under subparagraph 33 (A), (B), or (C) of Section 102(a)(1) during the period 34 that commences 3 weeks prior to the end of the academic HB0002 Engrossed -22- LRB9100350WHmg 1 term and the duration of the leave is greater than 5 2 working days, the agency or school may require the 3 employee to continue to take leave until the end of such 4 term. 5 (e) Restoration to equivalent employment position. For 6 purposes of determinations under Section 104(a)(1)(B) 7 (relating to the restoration of an eligible employee to an 8 equivalent position), in the case of a local educational 9 agency or a private elementary or secondary school, such 10 determination shall be made on the basis of established 11 school board policies and practices, private school policies 12 and practices, and collective bargaining agreements. 13 (f) Reduction of the amount of liability. If a local 14 educational agency or a private elementary or secondary 15 school that has violated this Article proves to the 16 satisfaction of the court that the agency, school, or 17 department had reasonable grounds for believing that the 18 underlying act or omission was not a violation of this 19 Article, such court may, in the discretion of the court, 20 reduce the amount of the liability provided for under Section 21 107(a)(1)(A) to the amount and interest determined under 22 clauses (i) and (ii), respectively, of such Section. 23 Section 109. Notice. 24 (a) In general. Each employer shall post and keep posted, 25 in conspicuous places on the premises of the employer where 26 notices to employees and applicants for employment are 27 customarily posted, a notice, to be prepared or approved by 28 the Director, setting forth excerpts from, or summaries of, 29 the pertinent provisions of this Article and information 30 pertaining to the filing of a charge. 31 (b) Penalty. Any employer that willfully violates this 32 Section may be assessed a civil money penalty not to exceed 33 $100 for each separate offense. HB0002 Engrossed -23- LRB9100350WHmg 1 ARTICLE II. (BLANK) 2 ARTICLE III.(BLANK) 3 ARTICLE IV. MISCELLANEOUS PROVISIONS 4 Section 401. Effect on other laws. 5 (a) Federal and State antidiscrimination laws. Nothing in 6 this Act shall be construed to modify or affect any Federal 7 or State law prohibiting discrimination on the basis of 8 race, religion, color, national origin, sex, age, or 9 disability. 10 (b) State and local laws. Nothing in this Act shall be 11 construed to supersede any provision of any State or local 12 law that provides greater family or medical leave rights than 13 the rights established under this Act. 14 Section 402. Effect on existing employment benefits. 15 (a) More protective. Nothing in this Act shall be 16 construed to diminish the obligation of an employer to comply 17 with any collective bargaining agreement or any employment 18 benefit program or plan that provides greater family or 19 medical leave rights to employees than the rights established 20 under this Act. 21 (b) Less protective. The rights established for employees 22 under this Act shall not be diminished by any collective 23 bargaining agreement or any employment benefit program or 24 plan. 25 Section 403. Encouragement of more generous leave 26 policies. Nothing in this Act shall be construed to 27 discourage employers from adopting or retaining leave 28 policies more generous than any policies that comply with the 29 requirements under this Act. HB0002 Engrossed -24- LRB9100350WHmg 1 Section 404. Rules. The Director shall prescribe such 2 rules as are necessary to carry out this Act not later than 3 120 days after the effective date of of this Act. 4 Section 404.1. Applicability. 5 (1) In the case of a collective bargaining agreement in 6 effect on the effective date of this Act, Article I shall 7 apply on the earlier of: 8 (A) the date of the termination of such agreement; 9 or 10 (B) the date that occurs 12 months after the 11 effective date of this Act. 12 (2) Nothing in this Act shall be construed to limit the 13 applicability of the federal Family and Medical Leave Act of 14 1993 with regard to employers and employees covered by that 15 Act. 16 Section 405. Effective date. This Act shall take effect 17 6 months after it becomes law.