Text of AL HB 557 (2010)

HB557 1 117569-1 2 By Representative Coleman 3 RFD: Commerce 4 First Read: 11-FEB-10 5 Page 0 117569-1:n:02/05/2010:DA/mfp LRS2010-704 1 2 3 4 5 6 7 SYNOPSIS: This bill would require employers to 8 provide a minimum level of paid sick and safe time 9 for employees, including time for family care. 10 This bill would make provision for employees 11 to seek early and routine medical care for 12 themselves and family members. 13 This bill would protect employees from job 14 lost while on sick and safe leave to care for 15 themselves or family members. 16 This bill would provide for assistance to 17 victims of domestic violence and their family with 18 job protection while receiving treatment. 19 This bill would provide for administrative 20 and civil remedies. 21 22 A BILL 23 TO BE ENTITLED 24 AN ACT 25 26 Page 1 To establish the Healthy and Safe Families and 1 Workplaces Act; to provide definitions; to provide for accrual 2 of paid sick and safe time; to provide for use of paid sick 3 and safe time; to provide for the exercise of protected rights 4 and to prohibit retaliation; to provide for the posting of 5 notice by the employer; to provide for confidentiality of 6 employer records and to provide exceptions; to provide for the 7 promulgation of rules and regulations pursuant to the 8 Administrative Procedure Act; and to provide for 9 administrative and civil remedies. 10 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: 11 Section 1. This act shall be known and cited as the 12 Healthy and Safe Families and Workplaces Act. 13 Section 2. The Legislature of Alabama finds that: 14 (1) Most workers in the State of Alabama will at 15 some time during the year need temporary time off from work to 16 take care of his or her own health needs or the health needs 17 of members of their families. 18 (2) Nationally, 52 percent of all private sector 19 workers have paid sick time and only 30 percent of workers may 20 use that time to care for sick children. There are many 21 workers in Alabama who do not have any paid sick time, or who 22 have inadequate time, to care for their own health needs or 23 the health needs of members of their families. In Alabama, 24 740,000 Alabamians or 48 percent of Alabama workers are not 25 able to take a paid sick day when they are ill. 26 Page 2 (3) Low-income workers are significantly less likely 1 to have paid sick time than other members of the workforce. 2 Only one in five low income workers, 20 percent, have access 3 to paid sick time. 4 (4) Providing workers time off to attend to their 5 own health care and the health care of family members will 6 ensure a healthier and more productive workforce in the state. 7 (5) Paid sick time will have a positive effect on 8 the public health of Alabama by allowing sick workers the 9 occasional option of staying at home to care for themselves 10 when ill, thus lessening their recovery time and reducing the 11 likelihood of spreading illness to other members of the 12 workforce and to the public. 13 (6) Paid sick time will allow parents to provide 14 personal care for their sick children. Parental care makes 15 children's recovery faster, prevents more serious illnesses, 16 and improves the overall mental and physical health of the 17 children. 18 (7) Providing a minimal amount of paid sick time is 19 affordable for employers and good for business. 20 (8) Paid sick time is good for business. Employers 21 who provide paid sick time have greater employee retention and 22 avoid the problem of workers coming to work sick and lowering 23 productivity. 24 (9) Almost 60 percent of those who provide unpaid 25 care to an adult family member or friend must combine their 26 Page 3 caregiving with employment in order to provide financially for 1 their family member and themselves. 2 (10) Employees frequently lose their jobs or are 3 disciplined with suspensions or demerits for taking sick time 4 to care for sick family members or even to recover from their 5 own illnesses. One in six workers report they or a family 6 member has been fired, suspended, punished, or threatened by 7 an employer because they needed to take sick time for 8 themselves or a family member. 9 (11) Workers in jobs with high public contact, such 10 as service workers and restaurant workers, are very unlikely 11 to have paid sick time. Because of the lack of paid sick time, 12 these workers have no choice but to come to work when they are 13 ill, thereby increasing the risk of passing illnesses on to 14 co-workers and customers. 15 (12) In the event of an outbreak that presents a 16 threat to public health, for example, the H1N1 outbreak of 17 2009, government officials request that sick workers stay home 18 and keep sick children home from school or child care to 19 prevent the spread of the virus, and to safeguard workplace 20 productivity. However, because many workers lack paid sick 21 time, to protect their paychecks and their jobs, many are 22 unable to comply with these requests. 23 (13) Many employers would like to provide their 24 workers with paid sick time but fear being at a competitive 25 disadvantage because other employers do not. 26 Page 4 (14) Nearly one in three American women report 1 physical or sexual abuse by a husband or boyfriend at some 2 point in their lives. Domestic violence results in an 3 estimated 1,200 deaths and two million injuries among women 4 annually. Intimate partner violence also affects men; women 5 account for 85 percent of the victims of intimate partner 6 violence and men account for approximately 15 percent of the 7 victims. Therefore, women disproportionately need time off to 8 care for their health or to find solutions, such as a 9 restraining order or finding housing, to avoid or prevent 10 physical or sexual abuse. 11 (15) The Centers for Disease Control has estimated 12 that domestic violence costs over seven hundred million 13 dollars ($700,000,000) annually due to the victim's lost 14 productivity in employment. 15 (16) Victims of domestic violence are forced to lose 16 days of paid employment because of the violence they face. The 17 mean number of days of paid work lost by rape victims is 8.1 18 days, for victims of physical assault 7.2 days, and for 19 stalking 10.1 days. Without paid sick and safe days, these 20 victims are in grave danger of losing their jobs. The loss of 21 employment can be particularly devastating for victims of 22 domestic violence, who often need economic security to ensure 23 safety. 24 (17) The United States General Accounting Office 25 found that 25 - 50 percent of domestic violence victims 26 Page 5 reported losing a job due, at least in part, to domestic 1 violence. 2 Section 3. As used in this act, the following words 3 shall have the following meanings: 4 (1) DEPARTMENT. The Department of Labor. 5 (2) DOMESTIC VIOLENCE. As defined in Section 6 13A-6-130, 13A-6-131, and 13A-6-132 of the Code of Alabama 7 1975. 8 (3) EMPLOYEE. As defined in Section 25-4-7 of the 9 Code of Alabama 1975, and includes recipients of public 10 benefits who are engaged in work activity as a condition of 11 receiving public assistance. 12 (4) EMPLOYER. As defined in Section 25-4-8 of the 13 Code of Alabama 1975. 14 (5) FAMILY MEMBER. Includes all of the following: 15 a. A biological, adopted, or foster child, 16 stepchild, or legal ward, a child of a domestic partner, or a 17 child to whom the employee stands in loco parentis. 18 b. A biological, foster, stepparent, adoptive 19 parent, or legal guardian of an employee or an employee's 20 spouse or domestic partner or a person who stood in loco 21 parentis when the employee was a minor child. 22 c. A person to whom the employee is legally married 23 under the laws of Alabama. 24 d. A grandparent or spouse or domestic partner of a 25 grandparent. 26 e. A grandchild. 27 Page 6 f. A biological, foster, or adopted sibling or 1 spouse or domestic partner of a biological, foster, or adopted 2 sibling. 3 g. A domestic partner. 4 h. Any other individual related by blood or affinity 5 whose close association with the employee is the equivalent of 6 a family relationship. 7 (6) HEALTH CARE PROFESSIONAL. Any person licensed 8 under federal or Alabama law to provide medical or emergency 9 services, including, but not limited to, doctors, nurses, and 10 emergency room personnel. 11 (7) PAID SICK TIME. Time that is compensated at the 12 same hourly rate and with the same benefits, including health 13 care benefits, as the employee normally earns during hours 14 worked and is provided by an employer to an employee for the 15 purposes described in Section 3, but in no case shall the 16 hourly wage be less than that provided under 29 U.S.C. 17 §206(a)(1). 18 (8) RETALIATORY PERSONNEL ACTION. The discharge, 19 suspension, or demotion by an employer of an employee or any 20 other adverse action taken by an employer against an employee 21 and also includes any sanctions against a recipient of public 22 benefits. 23 (9) SEXUAL ASSAULT. Any sexual offense enumerated in 24 Sections 13A-6-60 to 13A-6-70, inclusive, of the Code of 25 Alabama 1975. 26 Page 7 (10) SMALL BUSINESS. As defined in Section 25-10-3 1 of the Code of Alabama 1975. 2 (11) STALKING. As defined in Section 13A-6-90 of the 3 Code of Alabama 1975. 4 Section 4. (1) All employees who work in Alabama for 5 more than 2060 hours in a year have the right to paid sick and 6 safe time as provided in this section. 7 (2) All employees shall accrue a minimum of 8.40 8 hours of paid sick and safe time for every 80 hours worked. 9 Employees shall not accrue more than 101.20 hours of paid sick 10 and safe time in a calendar year. 11 (3) Employees of small businesses will not accrue 12 more than 202 hours of paid sick and safe time in a calendar 13 year. 14 (4) Employees who are exempt from overtime 15 requirements under 29 U.S.C. §213(a)(1) of the Federal Fair 16 Labor Standards Act will be assumed to work 40 hours in each 17 work week for purposes of paid sick and safe time accrual 18 unless their normal work week is less than 40 hours, in which 19 case paid sick and safe time accrues based upon that normal 20 work week. 21 (5) Paid sick and safe time as provided in this 22 section shall begin to accrue at the commencement of 23 employment. 24 (6) Employees shall be entitled to use accrued paid 25 sick and safe time beginning on the 12th calendar day 26 following commencement of their employment. After the 12th 27 Page 8 calendar day of employment, employees may use paid sick and 1 safe time as it is accrued. 2 (7) Paid sick and safe time shall be carried over to 3 the following calendar year; however, an employee's use of 4 paid sick and safe time pursuant to this act in each calendar 5 year shall not exceed 600 hours for employees of small 6 businesses and 1200 hours for employees of all other 7 businesses. 8 (8) Any employer with a paid leave policy, such as a 9 paid time off policy, who makes available an amount of paid 10 leave sufficient to meet the accrual requirements of this 11 section that may be used for the same purposes and under the 12 same conditions as paid sick and safe time under this section 13 shall not be required to provide additional paid sick and safe 14 time. 15 (9) Nothing in this section shall be construed as 16 requiring financial or other reimbursement to an employee from 17 an employer upon the employee's termination, resignation, 18 retirement, or other separation from employment for accrued 19 paid sick and safe time that has not been used. 20 (10) If an employee is transferred to a separate 21 division, entity, or location, but remains employed by the 22 same employer, the employee shall be entitled to all paid sick 23 time accrued at the prior division, entity, or location and 24 shall be entitled to use all paid sick time as provided in 25 this section. When there is a separation from employment and 26 the employee is rehired within 36 months of separation by the 27 Page 9 same employer, previously accrued paid sick and safe time that 1 had not been used shall be reinstated. The employee shall be 2 entitled to use accrued paid sick and safe time and accrue 3 additional sick and safe time at the re-commencement of 4 employment. 5 (11) The employer may loan sick and safe time to the 6 employee in advance of accrual by such employee. 7 Section 5. (a) Paid sick and safe time shall be 8 provided to an employee by an employer for all of the 9 following: 10 (1) An employee's mental or physical illness, 11 injury, or health condition; an employee's need for medical 12 diagnosis, care, or treatment of a mental or physical illness, 13 injury, or health condition; or an employee's need for 14 preventive medical care. 15 (2) Care of a family member with a mental or 16 physical illness, injury, or health condition; care of a 17 family member who needs medical diagnosis, care, or treatment 18 of a mental or physical illness, injury, or health condition; 19 or care of a family member who needs preventive medical care. 20 (3) Closure of the employee's place of business by 21 order of a public official due to a public health emergency or 22 an employee's need to care for a child whose school or place 23 of care has been closed by order of a public official due to a 24 public health emergency or care for a family member when it 25 has been determined by the health authorities having 26 jurisdiction or by a health care provider that the presence of 27 Page 10 the family member in the community would jeopardize the health 1 of others because of the exposure of the family member to a 2 communicable disease, whether or not the family member has 3 actually contracted the communicable disease. 4 (4) Absence necessary due to domestic violence, 5 sexual assault, or stalking, provided the leave is to do any 6 of the following: 7 a. Seek medical attention for the employee or 8 employee's child, spouse, parent, grandparent, or extended 9 family member to recover from physical or psychological injury 10 or disability caused by domestic or sexual violence. 11 b. Obtain services from a victim services 12 organization. 13 c. Obtain psychological or other counseling. 14 d. Seek relocation due to the domestic or sexual 15 violence or stalking. 16 e. Take legal action, including preparing for or 17 participating in any civil or criminal legal proceeding 18 related to or resulting from the domestic or sexual violence. 19 (b) Paid sick and safe time shall be provided upon 20 the oral request of an employee. When possible, the request 21 shall include the expected duration of the absence. 22 (c) When the use of paid sick and safe time is 23 foreseeable, the employee shall make a good faith effort to 24 provide notice of the need for such time to the employer in 25 advance of the use of the sick and safe time and shall make a 26 reasonable effort to schedule the use of sick and safe time in 27 Page 11 a manner that does not unduly disrupt the operations of the 1 employer. 2 (d) Accrued sick and safe time may be used in the 3 smaller of hourly increments or the smallest increment that 4 the employer's payroll system uses to account for absences or 5 use of other time. 6 (e) For sick and safe time of more than three 7 consecutive days, an employer may require reasonable 8 documentation that the sick and safe time is covered by 9 subsection (a). Documentation signed by a health care 10 professional indicating that sick time is necessary shall be 11 considered reasonable documentation. A police report 12 indicating that the employee was a victim of domestic 13 violence, stalking, or sexual assault; a court order; or a 14 signed statement from a victim and witness advocate affirming 15 that the employee is involved in legal action related to 16 domestic violence, stalking, or sexual assault shall be 17 considered reasonable documentation. An employer shall not 18 require that the documentation explain the nature of the 19 illness or the details of the violence. If an employer chooses 20 to require documentation for sick time and the employee does 21 not have health insurance, the employer shall be responsible 22 for paying all of out of pocket expenses the employee incurs 23 in obtaining the documentation. If the employee does have 24 health insurance, the employer shall be responsible for paying 25 any costs charged to the employee by the health care provider 26 Page 12 for providing the specific documentation required by the 1 employer. 2 (f) An employer shall not require, as a condition of 3 providing paid sick and safe time under this act, that the 4 employee search for or find a replacement worker to cover the 5 hours during which the employee is on paid sick and safe time. 6 Section 6. (a) It shall be unlawful for an employer 7 or any other person to interfere with, restrain, or deny the 8 exercise of, or the attempt to exercise, any right protected 9 under this act. 10 (b) An employer shall not take retaliatory personnel 11 action or discriminate against an employee because the 12 employee has exercised rights protected under this act. Such 13 rights include, but are not limited to, the right to use paid 14 sick and safe time pursuant to this act; the right to file a 15 complaint or inform any person about any employer's alleged 16 violation of this act; the right to cooperate with the 17 department in its investigations of alleged violations of this 18 act; and the right to inform any person of his or her 19 potential rights under this section. 20 (c) It shall be unlawful for an employer's absence 21 control policy to count paid sick and safe time taken under 22 this act as an absence that may lead to or result in 23 discipline, discharge, demotion, suspension, or any other 24 adverse action. 25 Page 13 (d) Protections of this section shall apply to any 1 person who mistakenly but in good faith alleges violations of 2 this section. 3 (e) An employee or other person may report to the 4 department any suspected violation of this act. The department 5 shall encourage reporting pursuant to this subsection by 6 keeping confidential, to the maximum extent permitted by 7 applicable laws, the name and other identifying information of 8 the employee or person reporting the violation. With the 9 authorization of such person, the department may disclose his 10 or her name and identifying information as necessary to 11 enforce this section or for other appropriate purposes and 12 take appropriate steps to enforce this section. 13 (f)(1) The department, the Attorney General, any 14 person aggrieved by a violation of this act, or any entity a 15 member of which is aggrieved by a violation of this act may 16 bring a civil action in a court of competent jurisdiction 17 against an employer violating this act. The action may be 18 brought by a person aggrieved by a violation of this section 19 without first filing a complaint pursuant to subsection (e). 20 (2) Upon prevailing in an action brought pursuant to 21 this section, any aggrieved person shall recover the full 22 amount of any unpaid sick and safe time plus any actual 23 damages suffered as the result of the employer's violation of 24 this act plus an equal amount of liquidated damages. An 25 aggrieved person shall also be entitled to reasonable 26 attorney's fees. 27 Page 14 (3) Upon prevailing in an action brought pursuant to 1 this section, an aggrieved person shall be entitled to such 2 legal or equitable relief as may be appropriate to remedy the 3 violation, including, without limitation, reinstatement in 4 employment, back pay, and injunctive relief. 5 (g) There shall be a rebuttable presumption of 6 unlawful retaliation under this section whenever an employer 7 takes adverse action against a person within 90 days of when 8 that person shall have done any of the following: 9 (1) Files a complaint with the department or a court 10 alleging a violation of any provision of this section. 11 (2) Informs any person about an employer's alleged 12 violation of this section. 13 (3) Cooperates with the department or other persons 14 in the investigation or prosecution of any alleged violation 15 of this section. 16 (4) Opposes any policy, practice, or act that is 17 unlawful under this section. 18 (5) Informs any person of his or her rights under 19 this section. 20 Section 7. (a) An employer shall give notice that 21 employees shall be entitled to paid sick and safe time, the 22 amount of paid sick and safe time, and the terms of its use 23 guaranteed pursuant to this act, that retaliation against 24 employees who request or use paid sick and safe time is 25 prohibited and that each employee has the right to file a 26 complaint or bring a civil action if sick and safe time as 27 Page 15 required by this section is denied by the employer or the 1 employee is retaliated against for requesting or taking paid 2 sick and safe time. 3 (b) An employer may comply with this section by 4 supplying each employee with a notice in English and in any 5 language that is the first language spoken by at least five 6 percent of the employer's workforce that contains the 7 information required in subsection (a). 8 (c) An employer may comply with this section by 9 displaying a poster in a conspicuous and accessible place in 10 each establishment where employees are employed which contains 11 in English and in any language that is the first language 12 spoken by at least five percent of the employer's workforce 13 all information required under subsection (a). 14 (d) The department shall create and make available 15 to employers posters that contain the information required 16 under subsection (a) for their use in complying with this 17 section. 18 (e) An employer who willfully violates the notice 19 and posting requirements of this section shall be subject to a 20 civil fine in an amount not to exceed one hundred dollars 21 ($100) for each separate offense. 22 Section 8. An employer shall retain records 23 documenting hours worked by employees and paid sick and safe 24 time taken by employees for a period of five years and shall 25 allow the department access to the records, with appropriate 26 notice and at a mutually agreeable time, to monitor compliance 27 Page 16 with the requirements of this act. When an issue arises as to 1 the entitlement of an employee to paid sick and safe time 2 under this section, if the employer does not maintain or 3 retain adequate records documenting hours worked by the 4 employee and paid sick and safe time taken by the employee, or 5 does not allow the department reasonable access to such 6 records, it shall be presumed that the employer has violated 7 the act, absent clear and convincing evidence otherwise. 8 Section 9. The department shall coordinate 9 implementation and enforcement of this act and shall 10 promulgate rules pursuant to the Administrative Procedure Act. 11 Section 10. (a)(1) An employee or other person may 12 report to the department any suspected violation of this act. 13 The department shall encourage reporting pursuant to this 14 subsection by maintaining confidentiality, to the maximum 15 extent permitted by applicable laws, of the name and other 16 identifying information of the employee or person reporting 17 the violation. Upon the authorization of such person, the 18 department may disclose his or her name and identifying 19 information as necessary to enforce this act or for other 20 appropriate purposes. 21 (2) The department shall take appropriate steps to 22 enforce this section. 23 (b)(1) The department, the Attorney General, any 24 person aggrieved by a violation of this act, or any entity a 25 member of which is aggrieved by a violation of this act may 26 bring a civil action in a court of competent jurisdiction 27 Page 17 against an employer violating this act. The action may be 1 brought by a person aggrieved by a violation of this section 2 without first filing an administrative complaint. 3 (2) Upon prevailing in an action brought pursuant to 4 this section, an aggrieved person shall recover the full 5 amount of any unpaid sick and safe time plus any actual 6 damages suffered as the result of the employer's violation of 7 this act plus an equal amount of liquidated damages. An 8 aggrieved person shall also be entitled to reasonable 9 attorney's fees. 10 (3) Upon prevailing in an action brought pursuant to 11 this section, an aggrieved person shall be entitled to such 12 legal or equitable relief as may be appropriate to remedy the 13 violation, including, without limitation, reinstatement in 14 employment, back pay, and injunctive relief. 15 (4) Any person aggrieved by a violation of this act 16 may file a complaint with the Attorney General. The filing of 17 a complaint with the Attorney General shall not preclude the 18 filing of a civil action. 19 (5) The Attorney General may bring a civil action to 20 enforce this act. The Attorney General may seek injunctive 21 relief. In addition to injunctive relief, or in lieu thereof, 22 for any employer or other person found to have willfully 23 violated this act, the Attorney General may seek to impose a 24 fine of one thousand dollars ($1,000) per violation, payable 25 to the State Treasury. 26 Page 18 (6) The statute of limitations for a civil action 1 brought pursuant to this section shall be for a period of two 2 years from the date the alleged violation occurred. 3 (7) Actions brought pursuant to this section may be 4 brought as a class action pursuant to the laws of the state. 5 Section 11. An employer may not require disclosure 6 of details relating to domestic violence, sexual assault, or 7 stalking or the details of an employee's medical condition as 8 a condition of providing paid sick leave pursuant to this act. 9 If an employer possesses health information or information 10 pertaining to domestic violence, sexual assault, or stalking 11 about an employee or employee's family member, the information 12 shall be treated as confidential and shall not be disclosed 13 except to the affected employee or with the permission of the 14 affected employee. 15 Section 12. (a) Nothing in this act shall be 16 construed to discourage or prohibit an employer from the 17 adoption or retention of a paid sick and safe time policy more 18 generous than the one required herein. 19 (b) Nothing in this act shall be construed as 20 diminishing the obligation of an employer to comply with any 21 contract, collective bargaining agreement, employment benefit 22 plan, or other agreement providing more generous sick and safe 23 time to an employee than required in this act. 24 (c) Nothing in this act shall be construed as 25 diminishing the rights of public employees regarding paid sick 26 and safe time or use of sick and safe time. 27 Page 19 Section 13. This act provides minimum requirements 1 pertaining to paid sick and safe time and shall not be 2 construed to preempt, limit, or otherwise affect the 3 applicability of any other law, regulation, requirement, 4 policy, or standard that provides for greater accrual or use 5 by employees of sick and safe time, whether paid or unpaid, or 6 that extends other protections to employees. 7 Section 14. This act shall become effective on the 8 first day of the third month following its passage and 9 approval by the Governor, or its otherwise becoming law. 10 Page 20