Text of IL SB 127 (2012)

97TH GENERAL ASSEMBLY State of Illinois 2011 and 2012 SB0127 Introduced 1/27/2011, by Sen. Martin A. Sandoval SYNOPSIS AS INTRODUCED: New Act Creates the Illinois Family and Medical Leave Act. Contains provisions similar to those in the federal Family and Medical Leave Act of 1993, except that it applies to a son-in-law, daughter-in-law, father-in-law, mother-in-law, domestic partner, or sibling who has a serious health condition, increases the leave allowed to 16 workweeks, and some of the provisions of the federal law pertaining to federal employees, federal matters, and the 2008 amendments have been omitted or changed. Contains provisions concerning applicability and coordination. Effective 6 months after becoming law. LRB097 06234 AEK 46309 b FISCAL NOTE ACT MAY APPLY A BILL FOR SB0127LRB097 06234 AEK 46309 b 1 AN ACT concerning employment. 2 Be it enacted by the People of the State of Illinois, 3represented in the General Assembly: 4ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES, GENERAL 5REQUIREMENTS FOR LEAVE 6 Section 100. Short title. This Act may be cited as the 7Illinois Family and Medical Leave Act. 8 Section 101. Definitions. As used in this Article: 9 (1) (Blank). 10 (2) Eligible Employee. 11 (A) In General. The term "eligible employee" means an 12 employee who has been employed: 13 (i) for at least 12 months by the employer with 14 respect to whom leave is requested under Section 102; 15 and 16 (ii) for at least 1,250 hours of service with such 17 employer during the previous 12-month period. 18 (B) Exclusions. The term "eligible employee" does not 19 include: 20 (i) any Federal officer or employee covered under 21 Subchapter V of Chapter 63 of Title 5, United States 22 Code; or SB0127- 2 -LRB097 06234 AEK 46309 b 1 (ii) any employee of an employer who is employed at 2 a work site at which such employer employs less than 50 3 employees if the total number of employees employed by 4 that employer within 75 miles of that work site is less 5 than 50. 6 (C) Determination. For purposes of determining whether 7 an employee meets the hours of service requirement 8 specified in subparagraph (A)(ii), the legal standards 9 established under Section 7 of the Fair Labor Standards Act 10 of 1938 (29 U.S.C. 207) shall apply. 11 (3) Employ; Employee; State. The terms "employ", 12"employee", and "State" have the same meanings given such terms 13in subsections (c), (e), and (g) of Section 3 of the Fair Labor 14Standards Act of 1938 (29 U.S.C. 203 (c), (e), and (g)). 15 (4) Employer. 16 (A) In general. The term "employer": 17 (i) means any person who employs 50 or more 18 employees for each working day during each of 20 or 19 more calendar workweeks in the current or preceding 20 calendar year; 21 (ii) includes: 22 (I) any person who acts, directly or 23 indirectly, in the interest of an employer to any 24 of the employees of such employer; and 25 (II) any successor in interest of an employer; 26 and SB0127- 3 -LRB097 06234 AEK 46309 b 1 (iii) includes any State officer, department, or 2 agency, any unit of local government, and any school 3 district. 4 (B) (Blank). 5 (5) Employment benefits. The term "employment benefits" 6means all benefits provided or made available to employees by 7an employer, including group life insurance, health insurance, 8disability insurance, sick leave, annual leave, educational 9benefits, and pensions, regardless of whether such benefits are 10provided by a practice or written policy of an employer or 11through an "employee benefit plan", as defined in Section 3(3) 12of the Employee Retirement Income Security Act of 1974 (29 13U.S.C. 1002(3)). 14 (6) Health care provider. The term "health care provider" 15means: 16 (A) a doctor of medicine or osteopathy who is 17 authorized to practice medicine or surgery (as 18 appropriate) by the State in which the doctor practices; or 19 (B) any other person determined by the Director to be 20 capable of providing health care services. 21 (7) Parent. The term "parent" means the biological parent 22of an employee or an individual who stood in loco parentis to 23an employee when the employee was a son or daughter. 24 (8) Person. The term "person" has the same meaning given 25such term in Section 3(a) of the Fair Labor Standards Act of 261938 (29 U.S.C. 203(a)). SB0127- 4 -LRB097 06234 AEK 46309 b 1 (9) Reduced leave schedule. The term "reduced leave 2schedule" means a leave schedule that reduces the usual number 3of hours per workweek, or hours per workday, of an employee. 4 (10) Director. The term "Director" means the Director of 5Labor. 6 (11) Serious health condition. The term "serious health 7condition" means an illness, injury, impairment, or physical or 8mental condition that involves: 9 (A) inpatient care in a hospital, hospice, or 10 residential medical care facility; or 11 (B) continuing treatment by a health care provider. 12 (12) Son or daughter. The term "son or daughter" means a 13biological, adopted, or foster child, a stepchild, a legal 14ward, or a child of a person standing in loco parentis, who is: 15 (A) under 18 years of age; or 16 (B) 18 years of age or older and incapable of self-care 17 because of a mental or physical disability. 18 (13) Spouse. The term "spouse" means a husband or wife, as 19the case may be. 20 (14) Domestic partner. The term "domestic partner" means a 21single, unmarried adult person of the same sex as the employee 22who is in a committed, intimate relationship with the employee, 23is not a domestic partner to any other person, and who is 24designated to the employer by such employee as that employee's 25domestic partner. 26 `(23) Sibling. The term "sibling" means any person who is a SB0127- 5 -LRB097 06234 AEK 46309 b 1son or daughter of an employee's parent. 2 Section 102. Leave requirement. 3 (a) In general. 4 (1) Entitlement to leave. Subject to Section 103, an 5 eligible employee shall be entitled to a total of 16 6 workweeks of leave during any 12-month period for one or 7 more of the following: 8 (A) Because of the birth of a son or daughter of 9 the employee and in order to care for such son or 10 daughter. 11 (B) Because of the placement of a son or daughter 12 with the employee for adoption or foster care. 13 (C) In order to care for the spouse, or a son, 14 daughter, parent, son-in-law, daughter-in-law, 15 father-in-law, mother-in-law, domestic partner, or 16 sibling of the employee, if such spouse, son, daughter, 17 parent, son-in-law, daughter-in-law, father-in-law, 18 mother-in-law, domestic partner, or sibling has a 19 serious health condition. 20 (D) Because of a serious health condition that 21 makes the employee unable to perform the functions of 22 the position of such employee. 23 (2) Expiration of entitlement. The entitlement to 24 leave under subparagraphs (A) and (B) of paragraph (1) for 25 a birth or placement of a son or daughter shall expire at SB0127- 6 -LRB097 06234 AEK 46309 b 1 the end of the 12-month period beginning on the date of 2 such birth or placement. 3 (b) Leave taken intermittently or on a reduced leave 4schedule. 5 (1) In general. Leave under subparagraph (A) or (B) of 6 subsection (a)(1) shall not be taken by an employee 7 intermittently or on a reduced leave schedule unless the 8 employee and the employer of the employee agree otherwise. 9 Subject to paragraph (2), subsection (e)(2), and Section 10 103(b)(5), leave under subparagraph (C) or (D) of 11 subsection (a)(1) may be taken intermittently or on a 12 reduced leave schedule when medically necessary. The 13 taking of leave intermittently or on a reduced leave 14 schedule pursuant to this paragraph shall not result in a 15 reduction in the total amount of leave to which the 16 employee is entitled under subsection (a) beyond the amount 17 of leave actually taken. 18 (2) Alternative position. If an employee requests 19 intermittent leave, or leave on a reduced leave schedule, 20 under subparagraph (C) or (D) of subsection (a)(1), that is 21 foreseeable based on planned medical treatment, the 22 employer may require such employee to transfer temporarily 23 to an available alternative position offered by the 24 employer for which the employee is qualified and that: 25 (A) has equivalent pay and benefits; and 26 (B) better accommodates recurring periods of leave SB0127- 7 -LRB097 06234 AEK 46309 b 1 than the regular employment position of the employee. 2 (c) Unpaid leave permitted. Except as provided in 3subsection (d), leave granted under subsection (a) may consist 4of unpaid leave. Where an employee is otherwise exempt under 5regulations issued by the Secretary of the U.S. Department of 6Labor pursuant to Section 13(a)(1) of the Fair Labor Standards 7Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an 8employer with this Article by providing unpaid leave shall not 9affect the exempt status of the employee under such Section. 10 (d) Relationship to paid leave. 11 (1) Unpaid leave. If an employer provides paid leave 12 for fewer than 16 workweeks, the additional weeks of leave 13 necessary to attain the 16 workweeks of leave required 14 under this Article may be provided without compensation. 15 (2) Substitution of paid leave. 16 (A) In general. An eligible employee may elect, or 17 an employer may require the employee, to substitute any 18 of the accrued paid vacation leave, personal leave, or 19 family leave of the employee for leave provided under 20 subparagraph (A), (B), or (C) of subsection (a)(1) for 21 any part of the 16-week period of such leave under such 22 subsection. 23 (B) Serious health condition. An eligible employee 24 may elect, or an employer may require the employee, to 25 substitute any of the accrued paid vacation leave, 26 personal leave, or medical or sick leave of the SB0127- 8 -LRB097 06234 AEK 46309 b 1 employee for leave provided under subparagraph (C) or 2 (D) of subsection (a)(1) for any part of the 16-week 3 period of such leave under such subsection, except that 4 nothing in this Article shall require an employer to 5 provide paid sick leave or paid medical leave in any 6 situation in which such employer would not normally 7 provide any such paid leave. 8 (e) Foreseeable leave. 9 (1) Requirement of notice. In any case in which the 10 necessity for leave under subparagraph (A) or (B) of 11 subsection (a)(1) is foreseeable based on an expected birth 12 or placement, the employee shall provide the employer with 13 not less than 30 days' notice, before the date the leave is 14 to begin, of the employee's intention to take leave under 15 such subparagraph, except that if the date of the birth or 16 placement requires leave to begin in less than 30 days, the 17 employee shall provide such notice as is practicable. 18 (2) Duties of employee. In any case in which the 19 necessity for leave under subparagraph (C) or (D) of 20 subsection (a)(1) is foreseeable based on planned medical 21 treatment, the employee: 22 (A) shall make a reasonable effort to schedule the 23 treatment so as not to disrupt unduly the operations of 24 the employer, subject to the approval of the health 25 care provider of the employee or the health care 26 provider of the son, daughter, spouse, parent, SB0127- 9 -LRB097 06234 AEK 46309 b 1 son-in-law, daughter-in-law, father-in-law, 2 mother-in-law, domestic partner, or sibling of the 3 employee, as appropriate; and 4 (B) shall provide the employer with not less than 5 30 days' notice, before the date the leave is to begin, 6 of the employee's intention to take leave under such 7 subparagraph, except that if the date of the treatment 8 requires leave to begin in less than 30 days, the 9 employee shall provide such notice as is practicable. 10 (f) Spouses employed by the same employer. In any case in 11which a husband and wife entitled to leave under subsection (a) 12are employed by the same employer, the aggregate number of 13workweeks of leave to which both may be entitled may be limited 14to 16 workweeks during any 12-month period, if such leave is 15taken: 16 (1) under subparagraph (A) or (B) of subsection (a)(1); 17 or 18 (2) to care for a sick parent under subparagraph (C) of 19 such subsection. 20 Section 103. Certification. 21 (a) In general. An employer may require that a request for 22leave under subparagraph (C) or (D) of Section 102(a)(1) be 23supported by a certification issued by the health care provider 24of the eligible employee or of the son, daughter, spouse, 25parent, son-in-law, daughter-in-law, father-in-law, SB0127- 10 -LRB097 06234 AEK 46309 b 1mother-in-law, domestic partner, or sibling of the employee, as 2appropriate. The employee shall provide, in a timely manner, a 3copy of such certification to the employer. 4 (b) Sufficient certification. Certification provided under 5subsection (a) shall be sufficient if it states: 6 (1) the date on which the serious health condition 7 commenced; 8 (2) the probable duration of the condition; 9 (3) the appropriate medical facts within the knowledge 10 of the health care provider regarding the condition; 11 (4)(A) for purposes of leave under Section 12 102(a)(1)(C), a statement that the eligible employee is 13 needed to care for the son, daughter, spouse, parent, 14 son-in-law, daughter-in-law, father-in-law, mother-in-law, 15 domestic partner, or sibling and an estimate of the amount 16 of time that such employee is needed to care for the son, 17 daughter, spouse, parent, son-in-law, daughter-in-law, 18 father-in-law, mother-in-law, domestic partner, or 19 sibling; and 20 (B) for purposes of leave under Section 102(a)(1)(D), a 21 statement that the employee is unable to perform the 22 functions of the position of the employee; 23 (5) in the case of certification for intermittent 24 leave, or leave on a reduced leave schedule, for planned 25 medical treatment, the dates on which such treatment is 26 expected to be given and the duration of such treatment; SB0127- 11 -LRB097 06234 AEK 46309 b 1 (6) in the case of certification for intermittent 2 leave, or leave on a reduced leave schedule, under Section 3 102(a)(1)(D), a statement of the medical necessity for the 4 intermittent leave or leave on a reduced leave schedule, 5 and the expected duration of the intermittent leave or 6 reduced leave schedule; and 7 (7) in the case of certification for intermittent 8 leave, or leave on a reduced leave schedule, under Section 9 102(a)(1)(C), a statement that the employee's intermittent 10 leave or leave on a reduced leave schedule is necessary for 11 the care of the son, daughter, parent, spouse, son-in-law, 12 daughter-in-law, father-in-law, mother-in-law, domestic 13 partner, or sibling who has a serious health condition, or 14 will assist in their recovery, and the expected duration 15 and schedule of the intermittent leave or reduced leave 16 schedule. 17 (c) Second opinion. 18 (1) In general. In any case in which the employer has 19 reason to doubt the validity of the certification provided 20 under subsection (a) for leave under subparagraph (C) or 21 (D) of Section 102(a)(1), the employer may require, at the 22 expense of the employer, that the eligible employee obtain 23 the opinion of a second health care provider designated or 24 approved by the employer concerning any information 25 certified under subsection (b) for such leave. 26 (2) Limitation. A health care provider designated or SB0127- 12 -LRB097 06234 AEK 46309 b 1 approved under paragraph (1) shall not be employed on a 2 regular basis by the employer. 3 (d) Resolution of conflicting opinions. 4 (1) In general. In any case in which the second opinion 5 described in subsection (c) differs from the opinion in the 6 original certification provided under subsection (a), the 7 employer may require, at the expense of the employer, that 8 the employee obtain the opinion of a third health care 9 provider designated or approved jointly by the employer and 10 the employee concerning the information certified under 11 subsection (b). 12 (2) Finality. The opinion of the third health care 13 provider concerning the information certified under 14 subsection (b) shall be considered to be final and shall be 15 binding on the employer and the employee. 16 (e) Subsequent recertification. The employer may require 17that the eligible employee obtain subsequent recertifications 18on a reasonable basis. 19 Section 104. Employment and benefits protection. 20 (a) Restoration to position. 21 (1) In general. Except as provided in subsection (b), 22 any eligible employee who takes leave under Section 102 for 23 the intended purpose of the leave shall be entitled, on 24 return from such leave: 25 (A) to be restored by the employer to the position SB0127- 13 -LRB097 06234 AEK 46309 b 1 of employment held by the employee when the leave 2 commenced; or 3 (B) to be restored to an equivalent position with 4 equivalent employment benefits, pay, and other terms 5 and conditions of employment. 6 (2) Loss of benefits. The taking of leave under Section 7 102 shall not result in the loss of any employment benefit 8 accrued prior to the date on which the leave commenced. 9 (3) Limitations. Nothing in this Section shall be 10 construed to entitle any restored employee to: 11 (A) the accrual of any seniority or employment 12 benefits during any period of leave; or 13 (B) any right, benefit, or position of employment 14 other than any right, benefit, or position to which the 15 employee would have been entitled had the employee not 16 taken the leave. 17 (4) Certification. As a condition of restoration under 18 paragraph (1) for an employee who has taken leave under 19 Section 102(a)(1)(D), the employer may have a uniformly 20 applied practice or policy that requires each such employee 21 to receive certification from the health care provider of 22 the employee that the employee is able to resume work, 23 except that nothing in this paragraph shall supersede a 24 valid State or local law or a collective bargaining 25 agreement that governs the return to work of such 26 employees. SB0127- 14 -LRB097 06234 AEK 46309 b 1 (5) Construction. Nothing in this subsection shall be 2 construed to prohibit an employer from requiring an 3 employee on leave under Section 102 to report periodically 4 to the employer on the status and intention of the employee 5 to return to work. 6 (b) Exemption concerning certain highly compensated 7employees. 8 (1) Denial of restoration. An employer may deny 9 restoration under subsection (a) to any eligible employee 10 described in paragraph (2) if: 11 (A) such denial is necessary to prevent 12 substantial and grievous economic injury to the 13 operations of the employer; 14 (B) the employer notifies the employee of the 15 intent of the employer to deny restoration on such 16 basis at the time the employer determines that such 17 injury would occur; and 18 (C) in any case in which the leave has commenced, 19 the employee elects not to return to employment after 20 receiving such notice. 21 (2) Affected employees. An eligible employee described 22 in paragraph (1) is a salaried eligible employee who is 23 among the highest paid 10 percent of the employees employed 24 by the employer within 75 miles of the facility at which 25 the employee is employed. 26 (c) Maintenance of health benefits. SB0127- 15 -LRB097 06234 AEK 46309 b 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 maintaining 12 coverage for the employee under such group health plan 13 during any period of unpaid leave under Section 102 if: 14 (A) the employee fails to return from leave under 15 Section 102 after the period of leave to which the 16 employee is entitled has expired; and 17 (B) the employee fails to return to work for a 18 reason other than: 19 (i) the continuation, recurrence, or onset of 20 a serious health condition that entitles the 21 employee to leave under subparagraph (C) or (D) of 22 Section 102(a)(1); or 23 (ii) other circumstances beyond the control of 24 the employee. 25 (3) Certification. 26 (A) Issuance. An employer may require that a claim SB0127- 16 -LRB097 06234 AEK 46309 b 1 that an employee is unable to return to work because of 2 the continuation, recurrence, or onset of the serious 3 health condition described in paragraph (2)(B)(i) be 4 supported by: 5 (i) a certification issued by the health care 6 provider of the son, daughter, spouse, parent, 7 son-in-law, daughter-in-law, father-in-law, 8 mother-in-law, domestic partner, or sibling of the 9 employee, as appropriate, in the case of an 10 employee unable to return to work because of a 11 condition specified in Section 102(a)(1)(C); or 12 (ii) a certification issued by the health care 13 provider of the eligible employee, in the case of 14 an employee unable to return to work because of a 15 condition specified in Section 102(a)(1)(D). 16 (B) Copy. The employee shall provide, in a timely 17 manner, a copy of such certification to the employer. 18 (C) Sufficiency of certification. 19 (i) Leave due to serious health condition of 20 employee. The certification described in 21 subparagraph (A)(ii) shall be sufficient if the 22 certification states that a serious health 23 condition prevented the employee from being able 24 to perform the functions of the position of the 25 employee on the date that the leave of the employee 26 expired. SB0127- 17 -LRB097 06234 AEK 46309 b 1 (ii) Leave due to serious health condition of 2 family member. The certification described in 3 subparagraph (A)(i) shall be sufficient if the 4 certification states that the employee is needed 5 to care for the son, daughter, spouse, parent, 6 son-in-law, daughter-in-law, father-in-law, 7 mother-in-law, domestic partner, or sibling who 8 has a serious health condition on the date that the 9 leave of the employee expired. 10 Section 105. Prohibited Acts. 11 (a) Interference with rights. 12 (1) Exercise of rights. It shall be unlawful for any 13 employer to interfere with, restrain, or deny the exercise 14 of or the attempt to exercise, any right provided under 15 this Article. 16 (2) Discrimination. It shall be unlawful for any 17 employer to discharge or in any other manner discriminate 18 against any individual for opposing any practice made 19 unlawful by this Article. 20 (b) Interference with proceedings or inquiries. It shall be 21unlawful for any person to discharge or in any other manner 22discriminate against any individual because such individual: 23 (1) has filed any charge, or has instituted or caused 24 to be instituted any proceeding, under or related to this 25 Article; SB0127- 18 -LRB097 06234 AEK 46309 b 1 (2) has given, or is about to give, any information in 2 connection with any inquiry or proceeding relating to any 3 right provided under this Article; or 4 (3) has testified, or is about to testify, in any 5 inquiry or proceeding relating to any right provided under 6 this Article. 7 Section 106. Investigative authority. 8 (a) In general. To ensure compliance with the provisions of 9this Article, or any rule or order issued under this Article, 10the Director shall have, subject to subsection (c), the 11authority to investigate complaints. 12 (b) Obligation to keep and preserve records. Any employer 13shall make, keep, and preserve records pertaining to compliance 14with this Article in accordance with rules adopted by the 15Director. 16 (c) Required submissions generally limited to an annual 17basis. The Director shall not under the authority of this 18Section require any employer or any plan, fund, or program to 19submit to the Director any books or records more than once 20during any 12-month period, unless the Director has reasonable 21cause to believe there may exist a violation of this Article or 22any rule or order issued pursuant to this Article, or is 23investigating a charge pursuant to Section 107(b). 24 (d) Subpoena powers. For the purposes of any investigation 25provided for in this Section, the Director shall have the SB0127- 19 -LRB097 06234 AEK 46309 b 1authority to issue subpoenas. 2 Section 107. Enforcement. 3 (a) Civil action by employees. 4 (1) Liability. Any employer who violates Section 105 5 shall be liable to any eligible employee affected: 6 (A) for damages equal to: 7 (i) the amount of: 8 (I) any wages, salary, employment 9 benefits, or other compensation denied or lost 10 to such employee by reason of the violation; or 11 (II) in a case in which wages, salary, 12 employment benefits, or other compensation 13 have not been denied or lost to the employee, 14 any actual monetary losses sustained by the 15 employee as a direct result of the violation, 16 such as the cost of providing care, up to a sum 17 equal to 16 weeks of wages or salary for the 18 employee; 19 (ii) the interest on the amount described in 20 clause (i) calculated at the rate of interest on 21 judgments set forth in Section 2-1303 of the Code 22 of Civil Procedure; and 23 (iii) an additional amount as liquidated 24 damages equal to the sum of the amount described in 25 clause (i) and the interest described in clause SB0127- 20 -LRB097 06234 AEK 46309 b 1 (ii), except that if an employer who has violated 2 Section 105 proves to the satisfaction of the court 3 that the act or omission which violated Section 105 4 was in good faith and that the employer had 5 reasonable grounds for believing that the act or 6 omission was not a violation of Section 105, such 7 court may, in the discretion of the court, reduce 8 the 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, and 13 promotion. 14 (2) Right of action. An action to recover the damages 15 or equitable relief prescribed in paragraph (1) may be 16 maintained against any employer (including a public 17 agency) in the circuit court by any one or more employees 18 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 shall, 23 in addition to any judgment awarded to the plaintiff, allow 24 a reasonable attorney's fee, reasonable expert witness 25 fees, and other costs of the action to be paid by the 26 defendant. SB0127- 21 -LRB097 06234 AEK 46309 b 1 (4) Limitations. The right provided by paragraph (2) to 2 bring an action by or on behalf of any employee shall 3 terminate: 4 (A) on the filing of a complaint by the Director in 5 an action under subsection (d) in which restraint is 6 sought of any further delay in the payment of the 7 amount described in paragraph (1)(A) to such employee 8 by an employer responsible under paragraph (1) for the 9 payment; or 10 (B) on the filing of a complaint by the Director in 11 an action under subsection (b) in which a recovery is 12 sought of the damages described in paragraph (1)(A) 13 owing to an eligible employee by an employer liable 14 under paragraph (1), unless the action described in 15 subparagraph (A) or (B) is dismissed without prejudice 16 on motion of the Director. 17 (b) Action by the Director. 18 (1) Administrative action. The Director shall receive, 19 investigate, and attempt to resolve complaints of 20 violations of Section 105. 21 (2) Civil action. The Director may bring an action in 22 the circuit court to recover the damages described in 23 subsection (a)(1)(A). 24 (3) Sums recovered. Any sums recovered by the Director 25 pursuant to paragraph (2) shall be held in a special 26 deposit account and shall be paid, on order of the SB0127- 22 -LRB097 06234 AEK 46309 b 1 Director, directly to each employee affected. Any such sums 2 not paid to an employee because of inability to do so 3 within a period of 3 years shall be deposited into the 4 General Revenue Fund. 5 (c) Limitation. 6 (1) In general. Except as provided in paragraph (2), an 7 action may be brought under this Section not later than 2 8 years after the date of the last event constituting the 9 alleged violation for which the action is brought. 10 (2) Willful violation. In the case of such action 11 brought for a willful violation of Section 105, such action 12 may be brought within 3 years of the date of the last event 13 constituting the alleged violation for which such action is 14 brought. 15 (3) Commencement. In determining when an action is 16 commenced by the Director under this Section for the 17 purposes of this subsection, it shall be considered to be 18 commenced on the date when the complaint is filed. 19 (d) Action for injunction by Director. The circuit court 20shall have jurisdiction, for cause shown, in an action brought 21by the Director: 22 (1) to restrain violations of Section 105, including 23 the restraint of any withholding of payment of wages, 24 salary, employment benefits, or other compensation, plus 25 interest, found by the court to be due to eligible 26 employees; or SB0127- 23 -LRB097 06234 AEK 46309 b 1 (2) to award such other equitable relief as may be 2 appropriate, including employment, reinstatement, and 3 promotion. 4 Section 108. Special rules concerning employees of local 5educational agencies. 6 (a) Application. 7 (1) In general. Except as otherwise provided in this 8 Section, the rights (including the rights under Section 9 104, which shall extend throughout the period of leave of 10 any employee under this Section), remedies, and procedures 11 under this Article shall apply to: 12 (A) any "local educational agency" (as defined in 13 Section 1471(12) of the Elementary and Secondary 14 Education Act of 1965 (20 U.S.C. 2891(12)) and an 15 eligible employee of the agency; and 16 (B) any private elementary or secondary school and 17 an eligible employee of the school. 18 (2) Definitions. For purposes of the application 19 described in paragraph (1): 20 (A) Eligible employee. The term "eligible 21 employee" means an eligible employee of an agency or 22 school described in paragraph (1). 23 (B) Employer. The term "employer" means an agency 24 or school described in paragraph (1). 25 (b) Leave does not violate certain other federal laws. A SB0127- 24 -LRB097 06234 AEK 46309 b 1local educational agency and a private elementary or secondary 2school shall not be in violation of the Individuals with 3Disabilities Education Act (20 U.S.C. 1400 et seq.), Section 4504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or title 5VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), 6solely as a result of an eligible employee of such agency or 7school exercising the rights of such employee under this 8Article. 9 (c) Intermittent leave or leave on a reduced schedule for 10instructional employees. 11 (1) In general. Subject to paragraph (2), in any case 12 in which an eligible employee employed principally in an 13 instructional capacity by any such educational agency or 14 school requests leave under subparagraph (C) or (D) of 15 Section 102(a)(1) that is foreseeable based on planned 16 medical treatment and the employee would be on leave for 17 greater than 20 percent of the total number of working days 18 in the period during which the leave would extend, the 19 agency or school may require that such employee elect 20 either: 21 (A) to take leave for periods of a particular 22 duration, not to exceed the duration of the planned 23 medical treatment; or 24 (B) to transfer temporarily to an available 25 alternative position offered by the employer for which 26 the employee is qualified, and that: SB0127- 25 -LRB097 06234 AEK 46309 b 1 (i) has equivalent pay and benefits; and 2 (ii) better accommodates recurring periods of 3 leave than the regular employment position of the 4 employee. 5 (2) Application. The elections described in 6 subparagraphs (A) and (B) of paragraph (1) shall apply only 7 with respect to an eligible employee who complies with 8 Section 102(e)(2). 9 (d) Rules applicable to periods near the conclusion of an 10academic term. The following rules shall apply with respect to 11periods of leave near the conclusion of an academic term in the 12case of any eligible employee employed principally in an 13instructional capacity by any such educational agency or 14school: 15 (1) Leave more than 5 weeks prior to end of term. If 16 the eligible employee begins leave under Section 102 more 17 than 5 weeks prior to the end of the academic term, the 18 agency or school may require the employee to continue 19 taking leave until the end of such term, if: 20 (A) the leave is of at least 3 weeks duration; and 21 (B) the return to employment would occur during the 22 3-week period before the end of such term. 23 (2) Leave less than 5 weeks prior to end of term. If 24 the eligible employee begins leave under subparagraph (A), 25 (B), or (C) of Section 102(a)(1) during the period that 26 commences 5 weeks prior to the end of the academic term, SB0127- 26 -LRB097 06234 AEK 46309 b 1 the agency or school may require the employee to continue 2 taking leave until the end of such term, if: 3 (A) the leave is of greater than 2 weeks duration; 4 and 5 (B) the return to employment would occur during the 6 2-week period before the end of such term. 7 (3) Leave less than 3 weeks prior to end of term. If 8 the eligible employee begins leave under subparagraph (A), 9 (B), or (C) of Section 102(a)(1) during the period that 10 commences 3 weeks prior to the end of the academic term and 11 the duration of the leave is greater than 5 working days, 12 the agency or school may require the employee to continue 13 to take leave until the end of such term. 14 (e) Restoration to equivalent employment position. For 15purposes of determinations under Section 104(a)(1)(B) 16(relating to the restoration of an eligible employee to an 17equivalent position), in the case of a local educational agency 18or a private elementary or secondary school, such determination 19shall be made on the basis of established school board policies 20and practices, private school policies and practices, and 21collective bargaining agreements. 22 (f) Reduction of the amount of liability. If a local 23educational agency or a private elementary or secondary school 24that has violated this Article proves to the satisfaction of 25the court that the agency, school, or department had reasonable 26grounds for believing that the underlying act or omission was SB0127- 27 -LRB097 06234 AEK 46309 b 1not a violation of this Article, such court may, in the 2discretion of the court, reduce the amount of the liability 3provided for under Section 107(a)(1)(A) to the amount and 4interest determined under clauses (i) and (ii), respectively, 5of such Section. 6 Section 109. Notice. 7 (a) In general. Each employer shall post and keep posted, 8in conspicuous places on the premises of the employer where 9notices to employees and applicants for employment are 10customarily posted, a notice, to be prepared or approved by the 11Director, setting forth excerpts from, or summaries of, the 12pertinent provisions of this Article and information 13pertaining to the filing of a charge. 14 (b) Penalty. Any employer that willfully violates this 15Section may be assessed a civil money penalty not to exceed 16$100 for each separate offense. 17ARTICLE II. (BLANK) 18ARTICLE III. (BLANK) 19ARTICLE IV. MISCELLANEOUS PROVISIONS 20 Section 401. Effect on other laws. 21 (a) Federal and State antidiscrimination laws. Nothing in SB0127- 28 -LRB097 06234 AEK 46309 b 1this Act shall be construed to modify or affect any federal or 2State law prohibiting discrimination on the basis of race, 3religion, color, national origin, sex, age, or disability. 4 (b) State and local laws. Nothing in this Act shall be 5construed to supersede any provision of any State or local law 6that provides greater family or medical leave rights than the 7rights established under this Act. 8 Section 402. Effect on existing employment benefits. 9 (a) More protective. Nothing in this Act shall be construed 10to diminish the obligation of an employer to comply with any 11collective bargaining agreement or any employment benefit 12program or plan that provides greater family or medical leave 13rights to employees than the rights established under this Act. 14 (b) Less protective. The rights established for employees 15under this Act shall not be diminished by any collective 16bargaining agreement or any employment benefit program or plan. 17 Section 403. Encouragement of more generous leave 18policies. Nothing in this Act shall be construed to discourage 19employers from adopting or retaining leave policies more 20generous than any policies that comply with the requirements 21under this Act. 22 Section 404. Rules. The Director shall prescribe such 23rules as are necessary to carry out this Act not later than 120 SB0127- 29 -LRB097 06234 AEK 46309 b 1days after the effective date of this Act. 2 Section 404.1. Applicability; coordination. 3 (1) In the case of a collective bargaining agreement in 4effect on the effective date of this Act, Article I shall apply 5on the earlier of: 6 (A) the date of the termination of such agreement; or 7 (B) the date that occurs 12 months after the effective 8 date of this Act. 9 (2) Nothing in this Act shall be construed to limit the 10applicability of the federal Family and Medical Leave Act of 111993 with regard to employers and employees covered by that 12Act. 13 (3) In the case of leave that is subject to the federal 14Family and Medical Leave Act of 1993: 15 (A) the 12-month period during which 16 workweeks of 16 leave may be taken under this Act shall run concurrently 17 with the 12-month period under the federal Family and 18 Medical Leave Act of 1993, and shall commence the date 19 leave taken under the federal Family and Medical Leave Act 20 of 1993 commences; and 21 (B) leave taken under this Act shall run concurrently 22 with leave taken under the federal Family and Medical Leave 23 Act of 1993. 24 (4) The aggregate amount of leave taken under this Act or 25the federal Family and Medical Leave Act of 1993, or both, SB0127- 30 -LRB097 06234 AEK 46309 b 1shall not exceed 16 workweeks in a 12-month period. 2 Section 405. Effective date. This Act takes effect 6 months 3after it becomes law.