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REFERENCE TITLE: family leave |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HB 2465 |
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Introduced by Representatives Blanc: Alston, Andrade, Benally, Bolding, Cardenas, Chávez, Clark, Descheenie, Engel, Espinoza, Fernandez, Friese, Gabaldón, Gonzales, Hernandez, Martinez, Navarrete, Peten, Powers Hannley, Saldate, Salman, Senators Dalessandro, Mendez, Meza, Miranda, Peshlakai, Quezada
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AN ACT
amending title 23, Arizona Revised Statutes, by adding chapter 11; relating to family leave.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 23, Arizona Revised Statutes, is amended by adding chapter 11, to read:
CHAPTER 11
FAMILY LEAVE
ARTICLE 1. GENERAL PROVISIONS
23-1701. Definitions
In this chapter, unless the context otherwise requires:
1. "Child" means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is either of the following:
(a) Under eighteen years of age.
(b) Eighteen years of age or older and incapable of self-care because of a mental or physical disability.
2. "Department" means the department of economic security.
3. "Director" means the director of the department.
4. "Employee":
(a) Means a person who has been employed for both of the following:
(i) At least twelve months by the employer with respect to whom leave is requested under section 23-1703.
(ii) At least one thousand two hundred fifty hours of service with the employer during the previous twelve-month period.
(b) Does not mean a person who meets the requirements of subdivision (a) of this paragraph and who is employed at a worksite at which the employer employs less than fifty employees if the total number of employees employed by that employer within seventy-five miles of that worksite is less than fifty.
5. "Employer" means any of the following:
(a) Any person, firm, corporation, partnership, business trust, legal representative or other business entity that engages in any business, industry, profession or activity in this state and that employs fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year.
(b) This state, any state institution or any state agency.
(c) Any unit of local government, including a county, city, town, municipal corporation or other political subdivision.
6. "Employment benefits":
(a) Means all benefits that are provided or that are made available to employees by an employer.
(b) Includes group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits and pensions.
(c) Does not include benefits that are provided by a practice or written policy of an employer or through an employee benefit plan as defined in 29 United States Code section 1002(3).
7. "Family member" means a child, parent, spouse or domestic partner of an employee.
8. "Health care provider" means any of the following:
(a) A physician who is licensed pursuant to title 32, chapter 13 or 17.
(b) A registered nurse practitioner who is licensed pursuant to title 32, chapter 15.
(c) Any other person that the director determines to be capable of providing health care services.
9. "Intermittent leave" means leave that is taken in separate blocks of time due to a single qualifying reason.
10. "Leave for a family member's serious health condition" means leave as described in section 23-1703, subsection A, paragraph 3.
11. "Leave for the birth or placement of a child" means leave as described in section 23-1703, subsection A, paragraph 1 or 2.
12. "Leave for the employee's serious health condition" means leave as described in section 23-1703, subsection A, paragraph 4.
13. "Parent" means the biological or adoptive parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child.
14. "Period of incapacity" means an inability to work, attend school or perform other regular daily activities because of a serious health condition, treatment of a serious health condition or recovery from a serious health condition, or subsequent treatment in connection with such inpatient care.
15. "Reduced leave schedule" means a leave schedule that reduces the usual number of hours per workweek or hours per workday of an employee.
16. "Serious health condition" means an illness, injury, impairment or physical or mental condition that involves either:
(a) A period of incapacity or treatment connected with inpatient care, such as an overnight stay, in a hospital or a hospice or residential medical care facility and a period of incapacity or subsequent treatment or recovery in connection with the inpatient care.
(b) Continuing treatment by or under the supervision of a health care provider or a provider of health care services and includes a period of incapacity, such as an inability to work, attend school or perform other regular daily activities.
17. "Spouse" means a husband, wife or domestic partner.
23-1702. Administration; enforcement
The director shall adopt rules to implement, administer and enforce this chapter.
23-1703. Entitlement to leave
A. Subject to section 23-1707, an employee is entitled to a total of twelve workweeks of leave during any twelve-month period for one or more of the following:
1. Because of the birth of a child of the employee and to care for the child.
2. Because of the placement of a child with the employee for adoption or foster care.
3. To care for a family member of the employee if the family member has a serious health condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the position of the employee.
B. The entitlement to leave for the birth or placement of a child expires at the end of the twelve-month period beginning on the date of the birth or placement.
23-1704. Intermittent leave; leave taken on reduced leave schedule
A. If leave is taken after the birth or placement of a child for adoption or foster care, an employee may take intermittent leave or leave on a reduced leave schedule with the employer's agreement. The employer's agreement is not required for leave during which the employee has a serious health condition in connection with the birth of a child or if the newborn child has a serious health condition.
B. An employee may take intermittent leave or leave on a reduced leave schedule when medically necessary for medical treatment of a serious health condition by or under the supervision of a health care provider or for recovery from treatment or recovery from a serious health condition. Intermittent leave or leave on a reduced leave schedule may also be taken to provide care or psychological comfort to an immediate family member with a serious health condition.
C. Intermittent leave may be taken for a serious health condition that requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.
D. Intermittent leave or leave on a reduced leave schedule may be taken for absences during which the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if the employee or family member does not receive treatment by a health care provider.
E. There is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave schedule. An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave provided that increment is one hour or less.
F. If an employee takes intermittent leave or leave on a reduced leave schedule under this section, the employer may not reduce the total amount of leave to which the employee is entitled under section 23-1703 beyond the amount of leave that is actually taken.
G. If an employee requests intermittent leave or leave on a reduced leave schedule for a family member's serious health condition or the employee's serious health condition when the condition is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that both:
1. Has equivalent pay and benefits.
2. Better accommodates recurring periods of leave than the regular employment position of the employee.
23-1705. Unpaid leave permitted
A. Except as provided in subsection B of this section, leave that is granted under section 23-1703 may consist of unpaid leave.
B. If an employer provides paid leave for fewer than twelve workweeks, the additional weeks of leave necessary to attain the twelve workweeks of leave required under the chapter may be provided without compensation.
23-1706. Foreseeable leave; notice
A. If the necessity for leave for the birth or placement of a child is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than thirty days' notice before the date the leave is to begin of the employee's intention to take leave for the birth or placement of a child, except that if the date of the birth or placement requires leave to begin in less than thirty days, the employee shall provide the notice as is practicable.
B. If the necessity for leave for a family member's serious health condition or the employee's serious health condition is foreseeable based on planned medical treatment, the employee must both:
1. Make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the family member, as appropriate.
2. Provide the employer with not less than thirty days' notice before the date the leave is to begin of the employee's intention to take leave for a family member's serious health condition or the employee's serious health condition, except that if the date of the treatment requires leave to begin in less than thirty days, the employee shall provide the notice as is practicable.
23-1707. Spouses employed by the same employer
If spouses who are entitled to leave under this chapter are employed by the same employer, the aggregate number of workweeks of leave to which both spouses are entitled may be limited to twelve workweeks during any twelve-month period if the leave is taken for either of the following:
1. The birth or placement of a child.
2. A parent's serious health condition.
23-1708. Certification
A. An employer may require that a request for leave for a family member's serious health condition or the employee's serious health condition be supported by a certification issued by the health care provider of the employee or of the family member, as appropriate. If required, the employee must provide, in a timely manner, a copy of the certification to the employer.
B. Certification provided under subsection A of this section is sufficient if the certification includes all of the following:
1. The date on which the serious health condition commenced.
2. The probable duration of the condition.
3. The appropriate medical facts within the knowledge of the health care provider regarding the condition.
4. For the purposes of leave for a family member's serious health condition, both:
(a) A statement that the employee is needed to care for the family member.
(b) An estimate of the amount of time that the employee is needed to care for the family member.
5. For the purposes of leave for the employee's serious health condition, a statement that the employee is unable to perform the functions of the position of the employee.
6. In the case of certification for intermittent leave or leave on a reduced leave schedule for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment.
7. In the case of certification for intermittent leave or leave on a reduced leave schedule for the employee's serious health condition, both:
(a) A statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule.
(b) The expected duration of the intermittent leave or reduced leave schedule.
8. In the case of certification for intermittent leave or leave on a reduced leave schedule for a family member's serious health condition, both:
(a) A statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the family member who has a serious health condition or will assist in the family members' recovery.
(b) The expected duration and schedule of the intermittent leave or reduced leave schedule.
C. If the employer has reason to doubt the validity of the certification provided under subsection A of this section for leave for a family member's serious health condition or the employee's serious health condition, the employer may require, at the expense of the employer, that the employee obtain the opinion of a second health care provider that is designated or approved by the employer concerning any information certified under subsection B of this section for the leave. The second health care provider may not be employed on a regular basis by the employer.
D. If the second opinion described in subsection C of this section differs from the opinion in the original certification provided under subsection A of this section, the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider that is designated or approved jointly by the employer and the employee concerning the information certified under subsection B of this section. The opinion of the third health care provider concerning the information certified under subsection B of this section is final and binding on the employer and the employee.
E. The employer may require that the employee obtain subsequent recertifications on a reasonable basis.
23-1709. Restoration of employment
A. Except as provided in subsection B of this section, any employee who takes leave under section 23-1703 for the intended purpose of the leave is entitled on return from the leave to be either:
1. Restored by the employer to the position of employment held by the employee when the leave commenced.
2. Restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment at a workplace within twenty miles of the employee's workplace when leave commenced.
B. The taking of leave under section 23-1703 may not result in the loss of any employment benefits accrued before the date on which the leave commenced.
C. This section does not entitle any restored employee to either:
1. The accrual of any seniority or employment benefits during any period of leave.
2. Any right, benefit or position of employment other than any right, benefit or position to which the employee would have been entitled had the employee not taken the leave.
D. As a condition of restoration under subsection A of this section for an employee who has taken leave for the employee's serious health condition, the employer may have a uniformly applied practice or policy that requires each employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this subsection supersedes a valid local law or a collective bargaining agreement that governs the return to work of an employee who takes leave for the employee's serious health condition.
E. This section does not prohibit an employer from requiring an employee on leave to report periodically to the employer on the employee's status and intention to return to work.
F. An employer may deny restoration under this subsection to any salaried employee who is among the highest paid ten percent of the employees employed by the employer within seventy-five miles of the facility at which the employee is employed if all of the following apply:
1. Denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.
2. The employer notifies the employee of the intent of the employer to deny restoration on the basis described in paragraph 1 of this subsection at the time the employer determines that the injury would occur.
3. The leave has commenced and the employee elects not to return to employment after receiving the notice.
23-1710. Employment benefits
During any period of leave taken under section 23-1703, if the employee is not eligible for any employer contribution to medical or dental benefits under an applicable collective bargaining agreement or employer policy during any period of leave, an employer shall allow the employee to continue, at the employee's expense, medical or dental insurance coverage, including any spouse and dependent coverage, in accordance with state or federal law. The premium to be paid by the employee may not exceed one hundred two percent of the applicable premium for the leave period.
23-1711. Prohibited acts
A. It is unlawful for any employer to either:
1. Interfere with, restrain or deny the exercise of, or the attempt to exercise, any right provided under this chapter.
2. Discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this chapter.
B. It is unlawful for any person to discharge or in any other manner discriminate against any individual because the individual has done any of the following:
1. Filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this chapter.
2. Given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this chapter.
3. Testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this chapter.
23-1712. Investigations; civil penalty; civil action
A. On complaint by an employee, the director shall investigate to determine if the employer of the employee has complied with this chapter and the rules adopted pursuant to this chapter. If the investigation indicates that a violation may have occurred, a hearing must be held in accordance with title 41, chapter 6, article 10. The director shall issue a written determination that includes the director's findings after the hearing. Except as provided in section 41-1092.08, subsection H, a decision of the department is subject to judicial review pursuant to title 12, chapter 7, article 6. The prevailing party is entitled to recover reasonable costs and attorney fees.
B. An employer who is found, in accordance with subsection A of this section, to have violated a requirement of this chapter or the rules adopted pursuant to this chapter, is subject to a civil penalty of at least one thousand dollars for each violation. The department shall collect civil penalties and deposit them into the family and medical leave enforcement fund established by section 23-1714.
C. Any employer who violates section 23-1711 is liable for both:
1. Damages equal to all of the following:
(a) Any wages, salary, employment benefits or other compensation denied or lost to the employee by reason of the violation.
(b) In a case in which wages, salary, employment benefits or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve weeks of wages or salary for the employee.
(c) The interest on the amount described in subdivisions (a) and (b) of this paragraph calculated at the prevailing rate.
(d) An additional amount as liquidated damages equal to the sum of the amount described in subdivisions (a) and (b) of this paragraph and the interest described in subdivision (c) of this paragraph, except that if an employer who has violated section 23-1711 proves to the satisfaction of the court that the act or omission that violated section 23-1711 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 23-1711, the court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under subdivisions (a), (b) and (c) of this paragraph, respectively.
2. Appropriate equitable relief, including employment, reinstatement and promotion.
D. An action to recover the damages or equitable relief prescribed in subsection C of this section may be maintained against any employer in any court of competent jurisdiction by any one or more employees for and on behalf of either:
1. The employees.
2. The employees and other employees similarly situated.
E. In an action described in subsection D of this section, the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees, reasonable expert witness fees and other costs of the action to be paid by the defendant.
23-1713. Notice; civil penalty
A. Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the director, setting forth excerpts from, or summaries of, the pertinent provisions of this chapter and information pertaining to the filing of a charge.
B. Any employer that wilfully violates this section is subject to a civil penalty of not more than one hundred dollars for each separate offense. Any penalties collected by the department under this section shall be deposited in the family and medical leave enforcement fund established by section 23-1714.
23-1714. Family and medical leave enforcement fund
The family and medical leave enforcement fund is established consisting of civil penalties collected pursuant to sections 23-1712 and 23-1713. The department shall administer the fund. Monies in the fund are continuously appropriated and may be used only for the purposes of administering and enforcing this chapter.
23-1715. Effect on other laws, existing employment benefits and more generous leave policies; relationship to federal law
A. This chapter does not do any of the following:
1. Modify or affect any state or local law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age or disability.
2. Supersede any provision of any local law that provides greater family or medical leave rights than the rights established under this chapter.
3. Diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this chapter. The rights established for employees under this chapter may not be diminished by any collective bargaining agreement or any employment benefit program or plan.
4. Discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this chapter.
B. Leave under this chapter and leave under the family and medical leave act of 1993 (P.L. 103-3; 107 Stat. 6) is in addition to any leave for sickness or temporary disability because of pregnancy or childbirth.
C. Leave taken under this chapter must be taken concurrently with any leave taken under the family and medical leave act of 1993 (P.L. 103‑3; 107 Stat. 6).
D. This chapter must be construed to the extent possible in a manner that is consistent with similar provisions, if any, of the family and medical leave act of 1993 (P.L. 103-3; 107 Stat. 6) and that gives consideration to the rules, precedents and practices of the United States department of labor relevant to the family and medical leave act of 1993 (P.L. 103-3; 107 Stat. 6).