HBA-LJP C.S.H.B. 76 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 76 By: Garcia Economic Development 4/11/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Under the current federal Family and Medical Leave Act of 1993, eligible employees of employers with at least 50 employees and of public agencies are entitled to a total of 12 workweeks of leave during any 12-month period for family- or medical-related issues. However, some Texas employees who need to leave work for family- or medical related issues are not covered under the federal Family and Medical Leave Act. C.S.H.B. 76 creates the Family, Medical, and Child Education Leave Act to entitle additional employees of certain employers to leave work for family- or medical-related issues not covered under the federal Family and Medical Leave Act. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Commission on Human Rights in SECTION 1 (Section 83.108, Labor Code) and SECTION 2 of this bill. ANALYSIS C.S.H.B. 76 amends the Labor Code to entitle an employee who has worked for at least one year before the date on which a leave is scheduled to begin for a private employer of 50 or more people in this state or any public employer of this state, or county or municipality of this state, and employees of a public or private elementary or secondary school or school district, to a total of 12 workweeks of family or medical leave during any 12-month period because of the specified child- or health-related issues (Secs. 83.051, 83.052, and 83.060). The bill provides that the entitlement of an employee to take leave for the birth of a child or placement of a child with the employee for adoption or foster care expires on the one year anniversary of the date of the birth or placement. The bill sets forth conditions for taking intermittent leave and working on a reduced leave schedule. The bill requires each employer to post a notice regarding family and medical leave, sets forth notice requirements, and provides for a civil penalty if an employer fails to post such notice (Sec. 83.052). The bill provides that unpaid leave is permitted for family and medical leave and sets forth conditions for taking unpaid leave and the substitution of certain paid leave (Secs. 83.053 and 83.054). The bill sets forth provisions requiring an employee to notify an employer if specified child- or health-related events will foreseeable make it necessary for an employee to take leave. The bill also requires the employee to make a reasonable effort to schedule planned medical treatment in a way such that the leave taken will minimize the disruption to the employer (Sec. 83.055). In a situation in which a husband and wife are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during a 12-month period if the leave is taken for the birth or placement of a child (Sec. 83.056). The bill authorizes an employer to request that a leave for health-related issues be certified by the health care provider of the employee, or of the child, spouse, or parent of the employee and sets forth conditions under which certification is considered sufficient. If the employer has reason to doubt the validity of the certification, the bill sets forth provisions for obtaining a second opinion and a third opinion for the purpose of obtaining a final and binding opinion and obtaining subsequent recertifications (Sec. 83.057). The bill sets forth employment and benefits protection for an employee taking family or medical leave, and provides that an employer is not required to reinstate a salaried employee whose salary is in the highest 10 percent of the compensation paid to the employees employed by that employer within 75 miles of the employing facility (Sec. 83.058). The bill requires an employer to maintain group health plan benefits for an employee who is on family or medical leave and authorizes the employer to recover the premium that the employer paid to maintain coverage during any period of unpaid leave taken if the employee fails to return to work under certain conditions. The bill also authorizes an employer to require that a claim that an employee is unable to return to work be certified and sets forth certification procedures (Sec. 83.059). The bill prohibits a person from terminating or discriminating against an individual because that person has, in relation to family and medical leave, filed a charge, given information which could produce an inquiry or proceeding, or testified or is about to testify in an inquiry or proceeding (Sec. 83.062). The bill requires the Commission on Human Rights (commission) to investigate and respond to complaints that the provisions related to family and medical leave have been violated. An employer who terminates, suspends, or discriminates against an employee in violation of the family and medical leave provisions is liable for monetary damages and lost benefits. The court is also authorized to require the employer to pay reasonable attorney's fees, expert witness fees, and other fees incurred by the employee (Sec. 83.063). The bill entitles an employee of an employer of 10 or more people or any public employer, including this state, each county, or municipality of this state, to two hours per month of scheduled unpaid time off to meet with a teacher of the employee's child or with a care giver of a child in a child care facility, or to participate in a school activity of the employee's child (Secs. 83.101 and 83.103). If an employer terminates, suspends, or discriminates against an employee for the scheduled leave, the employer is liable for monetary damages and lost benefits. In addition to any judgment awarded to the employee, the court is authorized to require the employer to pay reasonable attorney's fees, expert witness fees, and other fees incurred by the employee (Sec. 83.107). The bill requires each employer to inform employees of their rights to participate in school or child-care facility activities by posting a conspicuous sign. The bill requires the commission to, by rule, prescribe the content and design of the sign (Sec. 83.108). The bill also requires the commission to adopt rules and to prescribe notices and forms related to the Family, Medical, and Child Education Leave Act no later than November 1, 2001 (SECTION 2). The bill prohibits the commission from adopting rules under the provisions for family and medical leave but authorizes the commission to enforce applicable rules adopted under the federal Family and Medical Leave Act of 1993 and its subsequent amendments to the extent authorized by law (Sec. 83.061). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 76 modifies the original to replace the Texas Workforce Commission (TWC) as the administrative entity of the Family, Medical, and Child Education Leave Act with the Commission on Human Rights (commission) (Sec. 83.002). The substitute modifies the entitlement of an employee to take family or medical leave to provide that the employee must work for at least one year before the date on which a leave is scheduled to begin for a private employer of 50 or more people, or any public employer of this state, or county or municipality of this state (Sec. 83.051). The substitute requires the commission, rather than TWC, to investigate and respond to complaints that provisions related to family and medical leave have been violated (Sec. 83.063). The substitute also modifies the entitlement of an employee to take child obligation leave to include an employee of any public employer, including this state, each county, and municipality of this state and to raise the entitlement, from one hour to two hours, of unpaid time off in each calender month (Sec. 83.101). C.S.H.B. 76 removes the requirement of TWC to adopt rules to implement provisions related to family and medical leave and removes the requirement that each employer that is subject to provisions relating to family and medical leave to maintain records in accordance with rules adopted by TWC. The substitute requires the commission to enforce the provisions for family and medical leave, enforce applicable rules adopted under the federal Family and Medical Leave Act of 1993, and to adopt rules and prescribe notices and forms no later than November 1, 2001 (Secs. 83.061 and 83.108, and SECTION 2).