Relating to a family leave and medical leave insurance program that provides for paid, job-protected leave for certain family leave and medical leave reasons for eligible employees of specified employers

Family leave and medical leave are defined in the bill. Family leave includes leave to care for an immediate family member with a serious health condition, to bond with a newborn child or adopted or foster child, or for a qualifying exigency for a family member as permitted under the federal Family and Medical Leave Act of 1993, as amended (FMLA). Medical leave includes leave due to the employee’s own serious health condition. Serious health condition is defined in the bill. The bill provides that an eligible employee may not receive more than 12 weeks of family leave, 12 weeks of medical leave, or 16 weeks of combined family and medical leave in a defined consecutive 12-month period. The defined consecutive 12-month period begins on the date of the birth of a child or placement of a child for adoption or foster care with an eligible employee, or on the first date that an eligible employee takes either family leave or medical leave. The minimum duration of leave an eligible employee may take is eight consecutive hours. An employee is disqualified for family leave and medical leave benefits for an absence due to the employee purposefully causing injury or sickness to the employee or a family member, for an absence caused by an illness or injury due to the employee engaging in an illegal act, or an absence due to an employer taking disciplinary action against the employee. An employee must provide a minimum of 30 days notice to an employer of the employee’s intent to take leave for the birth of a child or placement of a child for adoption or foster care, or of the employee’s intent to take family leave or medical leave. If circumstances require an employee’s leave to begin in less than 30 days, the employee must give as much notice as is practicable. If an eligible employee requests medical leave or family leave, the employee must make a reasonable effort to schedule their own, or their family member’s medical treatment, to not unduly disrupt the employer’s operations. The bill requires an eligible employee to file a claim for benefits as required by the director. The employee must consent to the disclosure of potentially private or confidential information to and from the department, and the employee’s employer, for administration of the family leave or medical leave.1. The employee must attest that the employee has provided notice of the employee’s intent to take leave to the employee’s employer. The employee must also authorize the employee’s, or the employee’s family member’s health care provider, to complete a certification of a serious health condition as required by the director. The bill provides for a seven-day waiting period before benefits are payable. There is no waiting period for benefits for leave for the birth of a child or placement of a child for adoption or foster care. The basis for the calculation of the amount of a family leave or medical leave benefit is an eligible employee’s weekly earnings as defined in the bill. The weekly leave benefit amount payable to an employee for any one week is 80 percent of the employee’s weekly spendable earnings, but must not exceed an amount equal to 200 percent of the statewide average weekly wage paid to employees as determined by the department of workforce development. The minimum weekly leave benefit amount is equal to the weekly leave benefit amount of a person whose gross weekly earnings are 35 percent of the statewide average weekly wage, or to the spendable weekly earnings of the employee, whichever is less. “Spendable weekly earnings” is defined in the bill as the amount remaining after payroll taxes are deducted from an employee’s gross weekly earnings. The department must send the first benefit payment to an eligible employee within 10 days after a properly completed weekly claim for benefits is received by the department. If the employee continues to submit a properly completed weekly claim, subsequent payments are to be made to the employee at least biweekly. If an employer, or the department, contests an employee’s eligibility, benefit payments may be made on a conditional basis. The employee is required to pay the benefits back if the department later rules that the employee is ineligible to receive such benefits. The bill provides that the program shall be funded via employee and employer contributions. Beginning on January 1, 2022, and ending on December 31, 2023, the department must assess a covered employer a premium rate of four-tenths of one percent of an employee’s weekly wages, subject to a maximum limit of wages subject to the assessment, as determined by the director based on the maximum wages subject to taxation for social security. One-third of the premium is to be used to fund family leave insurance benefits and two-thirds of the premium is to be used to fund medical leave benefits. The covered employer may deduct the full amount of the family leave premium from an employee’s wage. A covered employer may deduct up to 45 percent of the medical leave premium and 45 percent of the family leave premium from an employee’s wage. The employer must pay the remaining 55 percent of both the medical leave and family leave premiums, and may elect to pay all or any portion of an employee’s share of such premiums. Beginning January 1, 2024, the premium rate shall be calculated by the director based on the family leave and medical leave insurance account balance ratio as of September 30 of the previous calendar year. The premium rate is adjusted based on the balance ratio as detailed in the bill. If the balance ratio falls below five hundredths of one percent, the bill requires the director to assess a solvency surcharge that is added to the total premium rate assessed to a covered employer. The minimum solvency surcharge is one-tenth of one percent and the maximum is six-tenths of one percent. On September 30 of each year, the bill requires the department to average the number of employees reported by an employer over the last four completed calendar quarters to determine if the employer is a covered employer for the next calendar year. The bill requires a covered employer to collect all assessed premiums and surcharges from the employer’s employees through payroll deduction and to remit all premiums to the department as required by the director. An employer may apply for, and the director must grant, a waiver of premiums for an employee who is located physically outside of the state and not expected to work in the state for 1,250 or more hours in any consecutive 12-month period. If the employee subsequently works 1,250 or more hours within the state, the employer and employee are responsible for all premiums that should have been collected. Self-employed persons may elect to participate in the program for a minimum initial participation period of three years. Any subsequent period of participation must be for a minimum of one year. A self-employed person must pay the employee and employer’s portion of the premium assessed by the director. A self-employed person who elects to participate in the program is eligible for family leave and medical leave benefits after working a minimum of 1,250 hours in the consecutive 12-month period immediately following the person’s election to participate in the program. The self-employed person may withdraw from the program by providing written notice to the director. The director may cancel the self-employed person’s elective coverage for failure to submit the required premiums. An eligible employee who takes family leave or medical leave is entitled to restoration of employment equal to but not greater than that provided by FMLA. The bill provides that if required under FMLA, an employer must maintain any existing health benefits during an employee’s leave. If the employer and employee normally share the cost of such, the employee is responsible for paying the employee’s share of the costs. A covered employer must submit reports as required by the director and maintain employment records for each employee from which the director may obtain information related to an employee’s family leave or medical leave. Such records must be maintained for 10 years from the date on which an employee first takes a family leave or medical leave. The bill provides that family leave or medical leave shall be in addition to leave required under state or federal law for sickness or temporary disability due to pregnancy or childbirth. The bill requires family leave or medical leave taken under this program to be taken concurrently with leave taken under FMLA. A covered employer may allow an employee to choose to use either accrued sick or vacation benefits, or family leave and medical leave benefits. An employee cannot receive family or medical leave benefits at the same time the employee is receiving state or federal unemployment, workers’ compensation, or disability benefits. The bill prohibits discrimination on the basis of any state or federally protected category. The bill requires the director to administer the program and to provide outreach to ensure that employers and employees are aware of the program and the benefits available under such. The bill provides that a family leave and medical leave insurance account shall be created in the custody of the treasurer of state. The director shall deposit all premiums collected from employers into such account and the account can only be used for the program as authorized by the director. The bill requires the director to adopt rules as necessary to implement and administer the provisions of the bill. The director may take any action under the director’s authority to enforce compliance with the bill.1(1) is amended to require the department of workforce development to administer the laws relating to the program. The director is required to analyze the funding of the program and the benefits payable from the program’s account. The director shall determine if the premium rates and the benefit levels are appropriate to fully fund and maintain the solvency of the program. The director must submit the findings to the general assembly no later than January 14, 2020.