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92_HB2487eng HB2487 Engrossed LRB9207125WHcs 1 AN ACT concerning employment. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL 5 REQUIREMENTS FOR LEAVE 6 Section 100. Short title. This Act may be cited as the 7 Illinois Family and Medical Leave Act. 8 Section 100.1. Findings and purposes. 9 (a) Findings. The General Assembly finds that: 10 (1) the number of single-parent households and 11 two-parent households in which the single parent or both 12 parents work is increasing significantly; 13 (2) it is important for the development of children 14 and the family unit that fathers and mothers be able to 15 participate in early childrearing and the care of family 16 members who have serious health conditions; 17 (3) the lack of employment policies to accommodate 18 working parents can force individuals to choose between 19 job security and parenting; 20 (4) there is inadequate job security for employees 21 who have serious health conditions that prevent them from 22 working for temporary periods; 23 (5) due to the nature of the roles of men and women 24 in our society, the primary responsibility for family 25 caretaking often falls on women, and such responsibility 26 affects the working lives of women more than it affects 27 the working lives of men; and 28 (6) employment standards that apply to one gender 29 only have serious potential for encouraging employers to 30 discriminate against employees and applicants for HB2487 Engrossed -2- LRB9207125WHcs 1 employment who are of that gender. 2 (b) Purposes. It is the purpose of this Act: 3 (1) to balance the demands of the workplace with the 4 needs of families, to promote the stability and economic 5 security of families, and to promote national interests 6 in preserving family integrity; 7 (2) to entitle employees to take reasonable leave 8 for medical reasons, for the birth or adoption of a 9 child, and for the care of a child, spouse, or parent who 10 has a serious health condition; 11 (3) to accomplish the purposes described in 12 paragraphs (1) and (2) in a manner that accommodates the 13 legitimate interests of employers; 14 (4) to accomplish the purposes described in 15 paragraphs (1) and (2) in a manner that, consistent with 16 the Equal Protection Clause of the Fourteenth Amendment, 17 minimizes the potential for employment discrimination on 18 the basis of sex by ensuring generally that leave is 19 available for eligible medical reasons (including 20 maternity-related disability) and for compelling family 21 reasons, on a gender-neutral basis; and 22 (5) to promote the goal of equal employment 23 opportunity for women and men, pursuant to such clause. 24 Section 101. Definitions. As used in this Article: 25 (1) (Blank). 26 (2) Eligible Employee. 27 (A) In General. The term "eligible employee" means 28 an employee who has been employed: 29 (i) for at least 12 months by the employer with 30 respect to whom leave is requested under Section 31 102; and 32 (ii) for at least 1,250 hours of service with 33 such employer during the previous 12-month period. HB2487 Engrossed -3- LRB9207125WHcs 1 (B) Exclusions. The term "eligible employee" does 2 not include: 3 (i) any Federal officer or employee covered 4 under Subchapter V of Chapter 63 of Title 5, United 5 States Code; or 6 (ii) any employee of an employer who is 7 employed at a worksite at which such employer 8 employs less than 25 employees if the total number 9 of employees employed by that employer within 75 10 miles of that worksite is less than 25. 11 (C) Determination. For purposes of determining 12 whether an employee meets the hours of service 13 requirement specified in subparagraph (A)(ii), the legal 14 standards established under Section 7 of the Fair Labor 15 Standards Act of 1938 (29 U.S.C. 207) shall apply. 16 (3) Employ; Employee; State. The terms "employ", 17 "employee", and "State" have the same meanings given such 18 terms in subsections (c), (e), and (g) of Section 3 of the 19 Fair Labor Standards Act of 1938 (29 U.S.C. 203 (c), (e), and 20 (g)). 21 (4) Employer. 22 (A) In general. The term "employer": 23 (i) means any person who employs 25 or more 24 employees for each working day during each of 20 or 25 more calendar workweeks in the current or preceding 26 calendar year; 27 (ii) includes: 28 (I) any person who acts, directly or 29 indirectly, in the interest of an employer to 30 any of the employees of such employer; and 31 (II) any successor in interest of an 32 employer; and 33 (iii) includes any State officer, department, 34 or agency, any unit of local government, and any HB2487 Engrossed -4- LRB9207125WHcs 1 school district. 2 (B) (Blank). 3 (5) Employment benefits. The term "employment benefits" 4 means all benefits provided or made available to employees by 5 an employer, including group life insurance, health 6 insurance, disability insurance, sick leave, annual leave, 7 educational benefits, and pensions, regardless of whether 8 such benefits are provided by a practice or written policy of 9 an employer or through an "employee benefit plan", as defined 10 in Section 3(3) of the Employee Retirement Income Security 11 Act of 1974 (29 U.S.C. 1002(3)). 12 (6) Health care provider. The term "health care provider" 13 means: 14 (A) a doctor of medicine or osteopathy who is 15 authorized to practice medicine or surgery (as 16 appropriate) by the State in which the doctor practices; 17 or 18 (B) any other person determined by the Director to 19 be capable of providing health care services. 20 (7) Parent. The term "parent" means the biological parent 21 of an employee or an individual who stood in loco parentis to 22 an employee when the employee was a son or daughter. 23 (8) Person. The term "person" has the same meaning given 24 such term in Section 3(a) of the Fair Labor Standards Act of 25 1938 (29 U.S.C. 203(a)). 26 (9) Reduced leave schedule. The term "reduced leave 27 schedule" means a leave schedule that reduces the usual 28 number of hours per workweek, or hours per workday, of an 29 employee. 30 (10) Director. The term "Director" means the Director of 31 Labor. 32 (11) Serious health condition. The term "serious health 33 condition" means an illness, injury, impairment, or physical 34 or mental condition that involves: HB2487 Engrossed -5- LRB9207125WHcs 1 (A) inpatient care in a hospital, hospice, or 2 residential medical care facility; or 3 (B) continuing treatment by a health care provider. 4 (12) Son or daughter. The term "son or daughter" means a 5 biological, adopted, or foster child, a stepchild, a legal 6 ward, or a child of a person standing in loco parentis, who 7 is: 8 (A) under 18 years of age; or 9 (B) 18 years of age or older and incapable of 10 self-care because of a mental or physical disability. 11 (13) Spouse. The term "spouse" means a husband or wife, 12 as the case may be. 13 Section 102. Leave requirement. 14 (a) In general. 15 (1) Entitlement to leave. Subject to Section 103, an 16 eligible employee shall be entitled to a total of 12 17 workweeks of leave during any 12-month period for one or 18 more of the following: 19 (A) Because of the birth of a son or daughter 20 of the employee and in order to care for such son or 21 daughter. 22 (B) Because of the placement of a son or 23 daughter with the employee for adoption or foster 24 care. 25 (C) In order to care for the spouse, or a son, 26 daughter, or parent, of the employee, if such 27 spouse, son, daughter, or parent has a serious 28 health condition. 29 (D) Because of a serious health condition that 30 makes the employee unable to perform the functions 31 of the position of such employee. 32 (2) Expiration of entitlement. The entitlement to 33 leave under subparagraphs (A) and (B) of paragraph (1) HB2487 Engrossed -6- LRB9207125WHcs 1 for a birth or placement of a son or daughter shall 2 expire at the end of the 12-month period beginning on the 3 date of such birth or placement. 4 (b) Leave taken intermittently or on a reduced leave 5 schedule. 6 (1) In general. Leave under subparagraph (A) or (B) 7 of subsection (a)(1) shall not be taken by an employee 8 intermittently or on a reduced leave schedule unless the 9 employee and the employer of the employee agree 10 otherwise. Subject to paragraph (2), subsection (e)(2), 11 and Section 103(b)(5), leave under subparagraph (C) or 12 (D) of subsection (a)(1) may be taken intermittently or 13 on a reduced leave schedule when medically necessary. The 14 taking of leave intermittently or on a reduced leave 15 schedule pursuant to this paragraph shall not result in a 16 reduction in the total amount of leave to which the 17 employee is entitled under subsection (a) beyond the 18 amount of leave actually taken. 19 (2) Alternative position. If an employee requests 20 intermittent leave, or leave on a reduced leave schedule, 21 under subparagraph (C) or (D) of subsection (a)(1), that 22 is foreseeable based on planned medical treatment, the 23 employer may require such employee to transfer 24 temporarily to an available alternative position offered 25 by the employer for which the employee is qualified and 26 that: 27 (A) has equivalent pay and benefits; and 28 (B) better accommodates recurring periods of 29 leave than the regular employment position of the 30 employee. 31 (c) Unpaid leave permitted. Except as provided in 32 subsection (d), leave granted under subsection (a) may 33 consist of unpaid leave. Where an employee is otherwise 34 exempt under regulations issued by the Secretary of the U.S. HB2487 Engrossed -7- LRB9207125WHcs 1 Department of Labor pursuant to Section 13(a)(1) of the Fair 2 Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the 3 compliance of an employer with this Article by providing 4 unpaid leave shall not affect the exempt status of the 5 employee under such Section. 6 (d) Relationship to paid leave. 7 (1) Unpaid leave. If an employer provides paid leave 8 for fewer than 12 workweeks, the additional weeks of 9 leave necessary to attain the 12 workweeks of leave 10 required under this Article may be provided without 11 compensation. 12 (2) Substitution of paid leave. 13 (A) In general. An eligible employee may elect, 14 or an employer may require the employee, to 15 substitute any of the accrued paid vacation leave, 16 personal leave, or family leave of the employee for 17 leave provided under subparagraph (A), (B), or (C) 18 of subsection (a)(1) for any part of the 12-week 19 period of such leave under such subsection. 20 (B) Serious health condition. An eligible 21 employee may elect, or an employer may require the 22 employee, to substitute any of the accrued paid 23 vacation leave, personal leave, or medical or sick 24 leave of the employee for leave provided under 25 subparagraph (C) or (D) of subsection (a)(1) for any 26 part of the 12-week period of such leave under such 27 subsection, except that nothing in this Article 28 shall require an employer to provide paid sick leave 29 or paid medical leave in any situation in which 30 such employer would not normally provide any such 31 paid leave. 32 (e) Foreseeable leave. 33 (1) Requirement of notice. In any case in which the 34 necessity for leave under subparagraph (A) or (B) of HB2487 Engrossed -8- LRB9207125WHcs 1 subsection (a)(1) is foreseeable based on an expected 2 birth or placement, the employee shall provide the 3 employer with not less than 30 days' notice, before the 4 date the leave is to begin, of the employee's intention 5 to take leave under such subparagraph, except that if the 6 date of the birth or placement requires leave to begin 7 in less than 30 days, the employee shall provide such 8 notice as is practicable. 9 (2) Duties of employee. In any case in which the 10 necessity for leave under subparagraph (C) or (D) of 11 subsection (a)(1) is foreseeable based on planned medical 12 treatment, the employee: 13 (A) shall make a reasonable effort to schedule 14 the treatment so as not to disrupt unduly the 15 operations of the employer, subject to the approval 16 of the health care provider of the employee or the 17 health care provider of the son, daughter, spouse, 18 or parent of the employee, as appropriate; and 19 (B) shall provide the employer with not less 20 than 30 days' notice, before the date the leave is 21 to begin, of the employee's intention to take leave 22 under such subparagraph, except that if the date of 23 the treatment requires leave to begin in less than 24 30 days, the employee shall provide such notice as 25 is practicable. 26 (f) Spouses employed by the same employer. In any case in 27 which a husband and wife entitled to leave under subsection 28 (a) are employed by the same employer, the aggregate number 29 of workweeks of leave to which both may be entitled may be 30 limited to 12 workweeks during any 12-month period, if such 31 leave is taken: 32 (1) under subparagraph (A) or (B) of subsection 33 (a)(1); or 34 (2) to care for a sick parent under subparagraph (C) HB2487 Engrossed -9- LRB9207125WHcs 1 of such subsection. 2 Section 103. Certification. 3 (a) In general. An employer may require that a request 4 for leave under subparagraph (C) or (D) of Section 102(a)(1) 5 be supported by a certification issued by the health care 6 provider of the eligible employee or of the son, daughter, 7 spouse, or parent of the employee, as appropriate. The 8 employee shall provide, in a timely manner, a copy of such 9 certification to the employer. 10 (b) Sufficient certification. Certification provided 11 under subsection (a) shall be sufficient if it states: 12 (1) the date on which the serious health condition 13 commenced; 14 (2) the probable duration of the condition; 15 (3) the appropriate medical facts within the 16 knowledge of the health care provider regarding the 17 condition; 18 (4)(A) for purposes of leave under Section 19 102(a)(1)(C), a statement that the eligible employee is 20 needed to care for the son, daughter, spouse, or parent 21 and an estimate of the amount of time that such employee 22 is needed to care for the son, daughter, spouse, or 23 parent; and 24 (B) for purposes of leave under Section 25 102(a)(1)(D), a statement that the employee is unable to 26 perform the functions of the position of the employee; 27 (5) in the case of certification for intermittent 28 leave, or leave on a reduced leave schedule, for planned 29 medical treatment, the dates on which such treatment is 30 expected to be given and the duration of such treatment; 31 (6) in the case of certification for intermittent 32 leave, or leave on a reduced leave schedule, under 33 Section 102(a)(1)(D), a statement of the medical HB2487 Engrossed -10- LRB9207125WHcs 1 necessity for the intermittent leave or leave on a 2 reduced leave schedule, and the expected duration of the 3 intermittent leave or reduced leave schedule; and 4 (7) in the case of certification for intermittent 5 leave, or leave on a reduced leave schedule, under 6 Section 102(a)(1)(C), a statement that the employee's 7 intermittent leave or leave on a reduced leave schedule 8 is necessary for the care of the son, daughter, parent, 9 or spouse who has a serious health condition, or will 10 assist in their recovery, and the expected duration and 11 schedule of the intermittent leave or reduced leave 12 schedule. 13 (c) Second opinion. 14 (1) In general. In any case in which the employer 15 has reason to doubt the validity of the certification 16 provided under subsection (a) for leave under 17 subparagraph (C) or (D) of Section 102(a)(1), the 18 employer may require, at the expense of the employer, 19 that the eligible employee obtain the opinion of a 20 second health care provider designated or approved by the 21 employer concerning any information certified under 22 subsection (b) for such leave. 23 (2) Limitation. A health care provider designated or 24 approved under paragraph (1) shall not be employed on a 25 regular basis by the employer. 26 (d) Resolution of conflicting opinions. 27 (1) In general. In any case in which the second 28 opinion described in subsection (c) differs from the 29 opinion in the original certification provided under 30 subsection (a), the employer may require, at the expense 31 of the employer, that the employee obtain the opinion of 32 a third health care provider designated or approved 33 jointly by the employer and the employee concerning the 34 information certified under subsection (b). HB2487 Engrossed -11- LRB9207125WHcs 1 (2) Finality. The opinion of the third health care 2 provider concerning the information certified under 3 subsection (b) shall be considered to be final and shall 4 be binding on the employer and the employee. 5 (e) Subsequent recertification. The employer may require 6 that the eligible employee obtain subsequent recertifications 7 on a reasonable basis. 8 Section 104. Employment and benefits protection. 9 (a) Restoration to position. 10 (1) In general. Except as provided in subsection 11 (b), any eligible employee who takes leave under Section 12 102 for the intended purpose of the leave shall be 13 entitled, on return from such leave: 14 (A) to be restored by the employer to the 15 position of employment held by the employee when the 16 leave commenced; or 17 (B) to be restored to an equivalent position 18 with equivalent employment benefits, pay, and other 19 terms and conditions of employment. 20 (2) Loss of benefits. The taking of leave under 21 Section 102 shall not result in the loss of any 22 employment benefit accrued prior to the date on which the 23 leave commenced. 24 (3) Limitations. Nothing in this Section shall be 25 construed to entitle any restored employee to: 26 (A) the accrual of any seniority or employment 27 benefits during any period of leave; or 28 (B) any right, benefit, or position of 29 employment other than any right, benefit, or 30 position to which the employee would have been 31 entitled had the employee not taken the leave. 32 (4) Certification. As a condition of restoration 33 under paragraph (1) for an employee who has taken leave HB2487 Engrossed -12- LRB9207125WHcs 1 under Section 102(a)(1)(D), the employer may have a 2 uniformly applied practice or policy that requires each 3 such employee to receive certification from the health 4 care provider of the employee that the employee is able 5 to resume work, except that nothing in this paragraph 6 shall supersede a valid State or local law or a 7 collective bargaining agreement that governs the return 8 to work of such employees. 9 (5) Construction. Nothing in this subsection shall 10 be construed to prohibit an employer from requiring an 11 employee on leave under Section 102 to report 12 periodically to the employer on the status and intention 13 of the employee to return to work. 14 (b) Exemption concerning certain highly compensated 15 employees. 16 (1) Denial of restoration. An employer may deny 17 restoration under subsection (a) to any eligible employee 18 described in paragraph (2) if: 19 (A) such denial is necessary to prevent 20 substantial and grievous economic injury to the 21 operations of the employer; 22 (B) the employer notifies the employee of the 23 intent of the employer to deny restoration on such 24 basis at the time the employer determines that such 25 injury would occur; and 26 (C) in any case in which the leave has 27 commenced, the employee elects not to return to 28 employment after receiving such notice. 29 (2) Affected employees. An eligible employee 30 described in paragraph (1) is a salaried eligible 31 employee who is among the highest paid 10 percent of the 32 employees employed by the employer within 75 miles of the 33 facility at which the employee is employed. 34 (c) Maintenance of health benefits. HB2487 Engrossed -13- LRB9207125WHcs 1 (1) Coverage. Except as provided in paragraph (2), 2 during any period that an eligible employee takes leave 3 under Section 102, the employer shall maintain coverage 4 under any "group health plan" (as defined in Section 5 5000(b)(1) of the Internal Revenue Code of 1986) for the 6 duration of such leave at the level and under the 7 conditions coverage would have been provided if the 8 employee had continued in employment continuously for the 9 duration of such leave. 10 (2) Failure to return from leave. The employer may 11 recover the premium that the employer paid for 12 maintaining coverage for the employee under such group 13 health plan during any period of unpaid leave under 14 Section 102 if: 15 (A) the employee fails to return from leave 16 under Section 102 after the period of leave to which 17 the employee is entitled has expired; and 18 (B) the employee fails to return to work for a 19 reason other than: 20 (i) the continuation, recurrence, or onset 21 of a serious health condition that entitles the 22 employee to leave under subparagraph (C) or (D) 23 of Section 102(a)(1); or 24 (ii) other circumstances beyond the 25 control of the employee. 26 (3) Certification. 27 (A) Issuance. An employer may require that a 28 claim that an employee is unable to return to work 29 because of the continuation, recurrence, or onset of 30 the serious health condition described in paragraph 31 (2)(B)(i) be supported by: 32 (i) a certification issued by the health 33 care provider of the son, daughter, spouse, or 34 parent of the employee, as appropriate, in the HB2487 Engrossed -14- LRB9207125WHcs 1 case of an employee unable to return to work 2 because of a condition specified in Section 3 102(a)(1)(C); or 4 (ii) a certification issued by the health 5 care provider of the eligible employee, in the 6 case of an employee unable to return to work 7 because of a condition specified in Section 8 102(a)(1)(D). 9 (B) Copy. The employee shall provide, in a 10 timely manner, a copy of such certification to the 11 employer. 12 (C) Sufficiency of certification. 13 (i) Leave due to serious health condition 14 of employee. The certification described in 15 subparagraph (A)(ii) shall be sufficient if the 16 certification states that a serious health 17 condition prevented the employee from being 18 able to perform the functions of the position 19 of the employee on the date that the leave of 20 the employee expired. 21 (ii) Leave due to serious health condition 22 of family member. The certification described 23 in subparagraph (A)(i) shall be sufficient if 24 the certification states that the employee is 25 needed to care for the son, daughter, spouse, 26 or parent who has a serious health condition on 27 the date that the leave of the employee 28 expired. 29 Section 105. Prohibited Acts. 30 (a) Interference with rights. 31 (1) Exercise of rights. It shall be unlawful for any 32 employer to interfere with, restrain, or deny the 33 exercise of or the attempt to exercise, any right HB2487 Engrossed -15- LRB9207125WHcs 1 provided under this Article. 2 (2) Discrimination. It shall be unlawful for any 3 employer to discharge or in any other manner discriminate 4 against any individual for opposing any practice made 5 unlawful by this Article. 6 (b) Interference with proceedings or inquiries. It shall 7 be unlawful for any person to discharge or in any other 8 manner discriminate against any individual because such 9 individual: 10 (1) has filed any charge, or has instituted or 11 caused to be instituted any proceeding, under or related 12 to this Article; 13 (2) has given, or is about to give, any information 14 in connection with any inquiry or proceeding relating to 15 any right provided under this Article; or 16 (3) has testified, or is about to testify, in any 17 inquiry or proceeding relating to any right provided 18 under this Article. 19 Section 106. Investigative authority. 20 (a) In general. To ensure compliance with the provisions 21 of this Article, or any rule or order issued under this 22 Article, the Director shall have, subject to subsection (c), 23 the authority to investigate complaints. 24 (b) Obligation to keep and preserve records. Any employer 25 shall make, keep, and preserve records pertaining to 26 compliance with this Article in accordance with rules adopted 27 by the Director. 28 (c) Required submissions generally limited to an annual 29 basis. The Director shall not under the authority of this 30 Section require any employer or any plan, fund, or program to 31 submit to the Director any books or records more than once 32 during any 12-month period, unless the Director has 33 reasonable cause to believe there may exist a violation of HB2487 Engrossed -16- LRB9207125WHcs 1 this Article or any rule or order issued pursuant to this 2 Article, or is investigating a charge pursuant to Section 3 107(b). 4 (d) Subpoena powers. For the purposes of any 5 investigation provided for in this Section, the Director 6 shall have the authority to issue subpoenas. 7 Section 107. Enforcement. 8 (a) Civil action by employees. 9 (1) Liability. Any employer who violates Section 105 10 shall be liable to any eligible employee affected: 11 (A) for damages equal to: 12 (i) the amount of: 13 (I) any wages, salary, employment 14 benefits, or other compensation denied or 15 lost to such employee by reason of the 16 violation; or 17 (II) in a case in which wages, 18 salary, employment benefits, or other 19 compensation have not been denied or lost 20 to the employee, any actual monetary 21 losses sustained by the employee as a 22 direct result of the violation, such as 23 the cost of providing care, up to a sum 24 equal to 12 weeks of wages or salary for 25 the employee; 26 (ii) the interest on the amount described 27 in clause (i) calculated at the rate of 28 interest on judgments set forth in Section 29 2-1303 of the Code of Civil Procedure; and 30 (iii) an additional amount as liquidated 31 damages equal to the sum of the amount 32 described in clause (i) and the interest 33 described in clause (ii), except that if an HB2487 Engrossed -17- LRB9207125WHcs 1 employer who has violated Section 105 proves to 2 the satisfaction of the court that the act or 3 omission which violated Section 105 was in good 4 faith and that the employer had reasonable 5 grounds for believing that the act or omission 6 was not a violation of Section 105, such court 7 may, in the discretion of the court, reduce the 8 amount of the liability to the amount and 9 interest determined under clauses (i) and (ii), 10 respectively; and 11 (B) for such equitable relief as may be 12 appropriate, including employment, reinstatement, 13 and promotion. 14 (2) Right of action. An action to recover the 15 damages or equitable relief prescribed in paragraph (1) 16 may be maintained against any employer (including a 17 public agency) in the circuit court by any one or more 18 employees for and in behalf of: 19 (A) the employees; or 20 (B) the employees and other employees similarly 21 situated. 22 (3) Fees and costs. The court in such an action 23 shall, in addition to any judgment awarded to the 24 plaintiff, allow a reasonable attorney's fee, reasonable 25 expert witness fees, and other costs of the action to be 26 paid by the defendant. 27 (4) Limitations. The right provided by paragraph (2) 28 to bring an action by or on behalf of any employee shall 29 terminate: 30 (A) on the filing of a complaint by the 31 Director in an action under subsection (d) in which 32 restraint is sought of any further delay in the 33 payment of the amount described in paragraph (1)(A) 34 to such employee by an employer responsible under HB2487 Engrossed -18- LRB9207125WHcs 1 paragraph (1) for the payment; or 2 (B) on the filing of a complaint by the 3 Director in an action under subsection (b) in which 4 a recovery is sought of the damages described in 5 paragraph (1)(A) owing to an eligible employee by an 6 employer liable under paragraph (1), unless the 7 action described in subparagraph (A) or (B) is 8 dismissed without prejudice on motion of the 9 Director. 10 (b) Action by the Director. 11 (1) Administrative action. The Director shall 12 receive, investigate, and attempt to resolve complaints 13 of violations of Section 105. 14 (2) Civil action. The Director may bring an action 15 in the circuit court to recover the damages described in 16 subsection (a)(1)(A). 17 (3) Sums recovered. Any sums recovered by the 18 Director pursuant to paragraph (2) shall be held in a 19 special deposit account and shall be paid, on order of 20 the Director, directly to each employee affected. Any 21 such sums not paid to an employee because of inability 22 to do so within a period of 3 years shall be deposited 23 into the General Revenue Fund. 24 (c) Limitation. 25 (1) In general. Except as provided in paragraph (2), 26 an action may be brought under this Section not later 27 than 2 years after the date of the last event 28 constituting the alleged violation for which the action 29 is brought. 30 (2) Willful violation. In the case of such action 31 brought for a willful violation of Section 105, such 32 action may be brought within 3 years of the date of the 33 last event constituting the alleged violation for which 34 such action is brought. HB2487 Engrossed -19- LRB9207125WHcs 1 (3) Commencement. In determining when an action is 2 commenced by the Director under this Section for the 3 purposes of this subsection, it shall be considered to be 4 commenced on the date when the complaint is filed. 5 (d) Action for injunction by Director. The circuit court 6 shall have jurisdiction, for cause shown, in an action 7 brought by the Director: 8 (1) to restrain violations of Section 105, including 9 the restraint of any withholding of payment of wages, 10 salary, employment benefits, or other compensation, plus 11 interest, found by the court to be due to eligible 12 employees; or 13 (2) to award such other equitable relief as may be 14 appropriate, including employment, reinstatement, and 15 promotion. 16 Section 108. Special rules concerning employees of local 17 educational agencies. 18 (a) Application. 19 (1) In general. Except as otherwise provided in this 20 Section, the rights (including the rights under Section 21 104, which shall extend throughout the period of leave of 22 any employee under this Section), remedies, and 23 procedures under this Article shall apply to: 24 (A) any "local educational agency" (as defined 25 in Section 1471(12) of the Elementary and Secondary 26 Education Act of 1965 (20 U.S.C. 2891(12)) and an 27 eligible employee of the agency; and 28 (B) any private elementary or secondary school 29 and an eligible employee of the school. 30 (2) Definitions. For purposes of the application 31 described in paragraph (1): 32 (A) Eligible employee. The term "eligible 33 employee" means an eligible employee of an agency or HB2487 Engrossed -20- LRB9207125WHcs 1 school described in paragraph (1). 2 (B) Employer. The term "employer" means an 3 agency or school described in paragraph (1). 4 (b) Leave does not violate certain other federal laws. A 5 local educational agency and a private elementary or 6 secondary school shall not be in violation of the Individuals 7 with Disabilities Education Act (20 U.S.C. 1400 et seq.), 8 Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 9 794), or title VI of the Civil Rights Act of 1964 (42 U.S.C. 10 2000d et seq.), solely as a result of an eligible employee of 11 such agency or school exercising the rights of such employee 12 under this Article. 13 (c) Intermittent leave or leave on a reduced schedule for 14 instructional employees. 15 (1) In general. Subject to paragraph (2), in any 16 case in which an eligible employee employed principally 17 in an instructional capacity by any such educational 18 agency or school requests leave under subparagraph (C) or 19 (D) of Section 102(a)(1) that is foreseeable based on 20 planned medical treatment and the employee would be on 21 leave for greater than 20 percent of the total number of 22 working days in the period during which the leave would 23 extend, the agency or school may require that such 24 employee elect either: 25 (A) to take leave for periods of a particular 26 duration, not to exceed the duration of the planned 27 medical treatment; or 28 (B) to transfer temporarily to an available 29 alternative position offered by the employer for 30 which the employee is qualified, and that: 31 (i) has equivalent pay and benefits; and 32 (ii) better accommodates recurring periods 33 of leave than the regular employment position 34 of the employee. HB2487 Engrossed -21- LRB9207125WHcs 1 (2) Application. The elections described in 2 subparagraphs (A) and (B) of paragraph (1) shall apply 3 only with respect to an eligible employee who complies 4 with Section 102(e)(2). 5 (d) Rules applicable to periods near the conclusion of an 6 academic term. The following rules shall apply with respect 7 to periods of leave near the conclusion of an academic term 8 in the case of any eligible employee employed principally in 9 an instructional capacity by any such educational agency or 10 school: 11 (1) Leave more than 5 weeks prior to end of term. If 12 the eligible employee begins leave under Section 102 more 13 than 5 weeks prior to the end of the academic term, the 14 agency or school may require the employee to continue 15 taking leave until the end of such term, if: 16 (A) the leave is of at least 3 weeks duration; 17 and 18 (B) the return to employment would occur during 19 the 3-week period before the end of such term. 20 (2) Leave less than 5 weeks prior to end of term. If 21 the eligible employee begins leave under subparagraph 22 (A), (B), or (C) of Section 102(a)(1) during the period 23 that commences 5 weeks prior to the end of the academic 24 term, the agency or school may require the employee to 25 continue taking leave until the end of such term, if: 26 (A) the leave is of greater than 2 weeks 27 duration; and 28 (B) the return to employment would occur during 29 the 2-week period before the end of such term. 30 (3) Leave less than 3 weeks prior to end of term. If 31 the eligible employee begins leave under subparagraph 32 (A), (B), or (C) of Section 102(a)(1) during the period 33 that commences 3 weeks prior to the end of the academic 34 term and the duration of the leave is greater than 5 HB2487 Engrossed -22- LRB9207125WHcs 1 working days, the agency or school may require the 2 employee to continue to take leave until the end of such 3 term. 4 (e) Restoration to equivalent employment position. For 5 purposes of determinations under Section 104(a)(1)(B) 6 (relating to the restoration of an eligible employee to an 7 equivalent position), in the case of a local educational 8 agency or a private elementary or secondary school, such 9 determination shall be made on the basis of established 10 school board policies and practices, private school policies 11 and practices, and collective bargaining agreements. 12 (f) Reduction of the amount of liability. If a local 13 educational agency or a private elementary or secondary 14 school that has violated this Article proves to the 15 satisfaction of the court that the agency, school, or 16 department had reasonable grounds for believing that the 17 underlying act or omission was not a violation of this 18 Article, such court may, in the discretion of the court, 19 reduce the amount of the liability provided for under Section 20 107(a)(1)(A) to the amount and interest determined under 21 clauses (i) and (ii), respectively, of such Section. 22 Section 109. Notice. 23 (a) In general. Each employer shall post and keep posted, 24 in conspicuous places on the premises of the employer where 25 notices to employees and applicants for employment are 26 customarily posted, a notice, to be prepared or approved by 27 the Director, setting forth excerpts from, or summaries of, 28 the pertinent provisions of this Article and information 29 pertaining to the filing of a charge. 30 (b) Penalty. Any employer that willfully violates this 31 Section may be assessed a civil money penalty not to exceed 32 $100 for each separate offense. HB2487 Engrossed -23- LRB9207125WHcs 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. HB2487 Engrossed -24- LRB9207125WHcs 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 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 6 17 months after it becomes law.