Women’s Economic Security Act

Summary: The Women’s Economic Security Act would provide economic and workplace equity for women and families.

Background Summary

Women’s economic security is inherently connected to their access to reproductive health care, including abortion. This is conclusively proven by a 2015 report from the Reproductive Health Technologies Project (RHTP). Drawing on data from a longitudinal study by Advancing New Standards In Reproductive Health (ANSIRH), the RHTP study shows:

Most women who seek abortion are already struggling financially. Over two-thirds of women obtaining abortions have incomes below 200 percent of the federal poverty level. The ANSIRH study found that two-thirds of them had incomes below the poverty line.

The most common reasons cited for seeking an abortion are financial concerns. Forty percent of women seeking an abortion were not financially prepared to have a baby. They had general financial concerns, were unemployed or underemployed, were uninsured or could not get TANF funds, or did not want government assistance. In short, they could not afford to have a child.

Women denied an abortion are more likely to be in poverty two years later. According to the ANSIRH data, women who were turned away from abortion care had a three times greater chance of ending up below the federal poverty line than similarly-situated women who were able to access abortion care.

Many women cannot afford the cost of an abortion. The median price of an abortion in the ANSIRH study ranged from $490 for a first trimester abortion to $1,750 for an abortion at 20 weeks or beyond. For more than half of the women who had an abortion, out-of-pocket costs for the procedure were more than one-third of their monthly personal incomes.

Financial barriers are often a complete obstacle to abortion care. About one in four women who would have an abortion if Medicaid funding were available instead carry their pregnancy to term.

Policymakers often ignore the connection between women’s economic security and access to reproductive health care. But the issues are completely intertwined. Policymakers cannot effectively address one issue without addressing the other.


Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Women’s Economic Security Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1)      In many ways, women have fewer rights in the United States than other nations around the world, especially Western democracies.

2)      Of 193 members of the United Nations, only seven countries have never ratified the Convention on the Elimination of Discrimination Against Women (CEDAW); the United States joins Iran, Palau, Somalia, South Sudan, Sudan and Tonga as one of the few holdouts. The constitutions of 165 nations explicitly guarantee gender equality; the United States Constitution does not.

3)      Therefore, it should be no surprise that women in the United States struggle to achieve and maintain economic security.

4)      The right to abortion is essential to women’s economic security. Since about three in ten women will have an abortion in their lifetimes, abortion is an essential component of health care. Thus, it is crucial to provide women with the ability to plan their pregnancies or terminate unwanted pregnancies to maintain or improve both physical and economic wellbeing. Evidence demonstrates that if a woman seeks an abortion and access is delayed or denied, she may experience adverse health and economic outcomes. A woman’s economic status should not determine her access to abortion and her access to abortion should not determine her economic status.

5)      Pay equity is essential to women’s economic security. Women make up nearly half of the workforce and support nearly two-thirds of families with children. Despite confirmation that pay inequity results in poverty for more families, women still make on average 79 cents for every dollar a man makes, and the gap increases when referring to women of color (e.g. African American women make 64 cents and Latina women make 56 cents). More than 15 million households are headed by women, half them single mothers. This gap is the equivalent of $10,876 less per year in median earnings, which would make a significant difference in these families.

6)      Paid sick and safe time is essential to women’s economic security. Nearly forty percent of private sector workers and nearly eighty percent of the lowest-income workers do not have any paid sick time. Some workers that have paid sick time are penalized for using it or cannot use this time to care for sick family members. Absences can result in job loss which can devastate a family. Additionally, it is important that paid time off is accessible for the one in four women who report physical or sexual abuse at some point in their lives. Without paid sick and safe days, women are in grave danger of losing their jobs, which can be particularly damaging for survivors of domestic violence. Allowing workers to prioritize the health care and safety needs of their families will create a more productive workforce.

7)      Family leave is essential to women’s economic security. Only 13 percent of workers in the United States have access to employer-provided paid family leave, and fewer than 40 percent have access to personal medical leave through employer-provided temporary disability insurance to address a personal serious medical need that requires time away from work. Lower-wage workers are hit even harder: only five percent of workers in the bottom wage quartile have access to employer-provided paid family leave, and 17 percent have access to employer-provided short-term disability insurance. Research and successful existing programs in California, New Jersey and Rhode Island demonstrate that paid leave promotes economic security and financial independence for working families; businesses experience benefits and cost-savings in the form of increased employee retention and morale; and health care outcomes are improved for mothers, children, and elderly relatives.

8)      Tax laws that recognize the high cost of raising a child are essential to women’s economic security. In 23 states, the cost of child care for two children exceeds housing costs. In every region of the United States, child care costs are more than double the average amount spent on food for the family and exceed transportation costs. Establishing a dependent care tax credit would make child care more affordable and promote the overall welfare of families.

9)      Eliminating workplace discrimination and ensuring fair treatment of pregnant women is also essential to women’s economic security. Women in the workplace who request accommodations in order to maintain a healthy pregnancy or to recover from childbirth are being removed from their positions, placed on unpaid leave, harassed or fired. Not only do these policies harm pregnant women and mothers, but all women who employers may perceive negatively because of their potential to get pregnant.

10)  It is beneficial to this state and all its residents to improve women’s economic security.

(B) PURPOSE—This law is enacted to protect and promote the health, safety, welfare and economic condition of women.

SECTION 3. ABORTION COVERAGE EQUITY

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.

2)      “State” means the state and every county, city, town, municipal corporation, quasi-municipal corporation, and public institution of higher education in the state.

(B) POLICY TO COVER ABORTION

Abortion shall be covered in all types of health insurance offered, sold, or purchased in this State, including all private plans, all state-funded plans, and all state-provided benefits.

(C) RESTRICTIONS REPEALED

1)      Section XXX [any provision of law that prohibits abortion care in private health insurance plans] is hereby repealed.

2)      Section XXX [any provision of law that prohibits abortion care in state employee health insurance plans] is hereby repealed.

3)      Section XXX [any provision of law that prohibits abortion care in the state insurance exchange] is hereby repealed.

4)      Section XXX [any provision of law that prohibits abortion care in Medicaid coverage] is hereby repealed.

5)      Section XXX [any provision of law that prohibits abortion care in any other state-funded insurance program] is hereby repealed.

(D) SEVERABILITY

The provisions of this Section shall be severable, and if any phrase, clause, sentence, or provision is declared to be invalid, is preempted by federal law or regulation, or results in noncompliance with federal requirements that are a condition to the allocation of federal funds to the state, those words are inapplicable and the validity of the remainder of this Act shall not be affected.

SECTION 4. FAIR PAY

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Employer” means [cite existing definition in state employment law].

2)      “Employee” means any permanent full-time or part-time employee and any temporary employee who has worked for a period of at least three months. “Employee” shall not include any individual employed by his or her parents, spouse or child.

3)      “Equivalent jobs” means jobs or occupations that are equal within the meaning of the Equal Pay Act of 1963, 29 U.S.C. 206(d), or jobs or occupations that are dissimilar but whose requirements are equivalent, when viewed as a composite of skill, effort, responsibility and working conditions.

4)      “Person” means an individual, partnership, association, corporation or other legal entity, including the state and all of its political agencies and subdivisions.

5)      “Labor organization” means any organization that exists for the purpose, in whole or in part, of collective bargaining, or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment.

6)      “Market rates” means the rates that employers within a prescribed geographic area actually pay, or are reported to pay for specific jobs, as determined by formal or informal surveys, wage studies, or other means.

7)      “Wages and wage rates” shall include all compensation in any form that an employer provides to employees in payment for work done or services rendered, including but not limited to base pay, bonuses, commissions, awards, tips, or various forms of non-monetary compensation, if provided in lieu of or in addition to monetary compensation, and that have economic value to an employee.

(B) PROHIBITION AGAINST DISCRIMINATION IN WAGES

1)      It shall be an unlawful employment practice, in violation of this section, for an employer to discriminate between employees on the basis of sex, race or national origin by:

a)      Paying wages to employees at a rate less than the rate paid to employees of the opposite sex, or of a different race or national origin, for work in equivalent jobs; or

b)      Paying wages to employees in a job that is dominated by employees of a particular sex, race or national origin at a rate less than the rate at which the employer pays to employees in another job that is dominated by employees of the opposite sex, or of a different race or national origin, for work on equivalent jobs.

2)      It shall not be an unlawful employment practice for an employer to pay different wage rates to employees where such payments are made pursuant to:

a)      A bona fide seniority or merit system;

b)      A system that measures earnings by quantity or quality of production; or

c)      Any bona fide factor other than sex, race or national origin, provided that wage differentials based on varying market rates for equivalent jobs, or the differing economic benefits to the employer of equivalent jobs, shall not be considered differentials based on bona fide factors other than sex, race or national origin. The bona fide factor defense shall only apply if it (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job related with respect to the position in question; (iv) is consistent with business necessity; and (iv) accounts for the entire differential in compensation at issue. Such a defense shall not apply where the employee demonstrates an alternative employment practice exists that would serve the same business purpose without producing such differential that the employer has refuse to adopt.

3)      An employer who pays wages in violation of this section shall not, in order to comply with the provisions of this section, reduce the wages of any employee.

4)      No labor organization, or agents that represent employees of an employer that is subject to any provision of this section, shall cause or attempt to cause such an employer to discriminate against an employee in violation of this section.

5)      The [State Department of Labor or other appropriate agency] shall promulgate regulations that specify the criteria for determining whether a job is dominated by employees of a particular sex, race or national origin. Criteria shall include, but not be limited to, factors such as whether the job has ever been formally classified as, or traditionally considered to be, a “male” or “female” or “white” or “minority” job; whether there is a history of discrimination against women or people of color with regard to wages, assignments or access to jobs, or other terms and conditions of employment; and the demographic composition of the workforce in equivalent jobs (e.g., numbers or percentages of women, men, white persons, and people of color). The regulations shall not include a list of jobs.

(C) OTHER PROHIBITED ACTS—It shall be an unlawful employment practice in violation of this section for an employer:

1)      To take adverse actions or otherwise discriminate against any individual because such individual has opposed any act or practice made unlawful by this section; has sought to enforce rights protected under this section; or has testified, assisted or participated in any manner in an investigation, hearing or other proceeding to enforce this section; or

2)      To discharge, or in any other manner discriminate against, coerce, intimidate, threaten, or interfere with any employee or any other person because an employee inquired about, disclosed, compared or otherwise discussed an employee’s wages, or because an employee exercised, aided, or encouraged any other person to exercise any right granted or protected by this section.

3)      To require an employee to sign a contract or waiver that would prohibit the employee from disclosing information about the employee’s wages.

4)      To seek salary history information from a potential employee for an interview or as a condition of employment; or for an employer to release the salary history of any current or former employee to any prospective employer in response to a request as part of an interview or hiring process without written authorization from the employee.

(D) WAGE DISCLOSURE, RECORDKEEPING AND REPORTING REQUIREMENTS

1)      Upon commencement of an individual’s employment, and at least annually thereafter, every employer subject to this section shall provide to each employee a written statement sufficient to inform the employee of his or her job title, wage rate, and how the wage is calculated. This notice shall be supplemented whenever an employee is promoted or reassigned to a different position with the employer, provided that the employer is not required to issue supplemental notifications for temporary reassignments that are of no more than three months in duration.

2)      Every employer subject to this section shall make and preserve records that document the wages paid to employees, and that document and support the method, system, calculations and other bases used to establish, adjust and determine the wage rates paid to said employer’s employees. Every employer subject to this section shall preserve records and make reports from the records as prescribed by the [State Department of Labor or other appropriate agency].

3)      The regulations promulgated under this section relating to the form of reports required shall provide for protection of the confidentiality of employees, and shall expressly require that reports shall not include the names or other identifying information from which readers could discern the identities of employees. The regulations may also identify circumstances that warrant a prohibition on disclosure of reports or information identifying the employer.

4)      The [State Department of Labor] may use the information and data it collects pursuant to this section for statistical and research purposes, and may compile and publish such studies, analyses, reports and surveys, based on the information and data, as it considers appropriate.

(E) ENFORCEMENT

1)      This section may be enforced by a private cause of action under [appropriate section of state law].

2)      This section shall be enforced by [appropriate government agency], which shall promulgate such regulations as are necessary to implement and administer compliance. Regulations shall include procedures to receive, investigate and attempt to resolve complaints, and to bring actions in any court of competent jurisdiction to recover appropriate relief for aggrieved employees.

3)      In any action under this section in which an employee prevails:

a)      The employee shall be awarded monetary relief, including back pay in an amount equal to the difference between the employee’s actual earnings and what the employee would have earned if not for the employer’s unlawful practices, and an additional amount in compensatory and punitive damages as appropriate.

b)      The employer shall be enjoined from continuing to discriminate against employees, and the employer may be ordered to take such additional affirmative steps as are necessary, including reinstatement or reclassification of affected workers, to ensure an end to unlawful discrimination.

c)      The employer shall pay reasonable attorney’s fees, reasonable expert witness fees, and other costs of the action.

(F) STATUTE OF LIMITATIONS

An action may be brought under this section no later than two years after the date of the last event constituting the alleged violation for which the action is brought.

SECTION 5. EARNED PAID SICK AND SAFE TIME

[Note: Drafting an earned paid sick and safe time bill requires state-specific research, analysis of underlying state and/or local law and consideration of complex policy issues. The National Partnership for Women & Families and A Better Balance are available to do any necessary legal research and drafting, and to work with you to customize this model.]

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS

1)      “Agency” means [state, county or city agency responsible for enforcement of labor laws or the county/city agency best suited to enforcing this law, if there is no local labor enforcement agency].

2)      “Domestic violence” means as defined in [state statute or local law].

3)      “Earned paid sick time” means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in section 5(C), but in no case shall this hourly amount be less than that provided under 29 U.S.C. §206(a)(1) [or your state or local minimum wage law].

4)      “Employee” means as defined in [state wage and hour law, local law or federal Fair Labor Standards Act (29 U.S.C. § 203(e))] but does not include those who work in [X] for fewer than [#] hours in a calendar year. “Employee” includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance. [May also specifically add: “Employee” does not include any railroad worker exempted under the Railroad Unemployment Insurance Act, 45 U.S.C. 363(b).]

5)      “Employer” means as defined in [state wage and hour law, local law or federal Fair Labor Standards Act (29 U.S.C. § 203(d))]. For the purposes of this section, “employer” does not include any of the following:

a)      The United States Government.

b)      [For local bills only: The State of X including any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary.]

c)      [For local bills only: Any county or local government other than X. OR For local bills if necessary due to limitations on authority of legislative body to determine benefits for locality’s own workers: Any county or local government.]

6)      “Family member” means:

a)      A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the employee stands in loco parentis, regardless of age;

b)      A biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee’s spouse or domestic partner or a person who stood in loco parentis when the employee or employee’s spouse or domestic partner was a minor child;

c)      A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee [as defined under X state/county/city law or] as registered under the laws of any state or political subdivision;

d)      A grandparent, grandchild or sibling (whether of a biological, foster, adoptive or step relationship) of the covered individual or the covered individual’s spouse or domestic partner;

e)      A person for whom the employee is responsible for providing or arranging care, including but not limited to helping that individual obtain diagnostic, preventive, routine or therapeutic health treatment; or

f)       Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

7)      “Harassment” means as defined in [state statute or local law].

8)      “Health care professional” means any person licensed under Federal [or State] law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel.

9)      “Retaliatory personnel action” means denial of any right guaranteed under this section and any threat, discharge, suspension, demotion, reduction of hours, reporting or threatening to report an employee’s suspected citizenship or immigration status, or the suspected citizenship or immigration status of a family member of the employee to a federal, state or local agency, or any other adverse action against an employee for the exercise of any right guaranteed herein including any sanctions against an employee who is the recipient of public benefits for rights guaranteed under this Section. Retaliation shall also include interference with or punishment for in any manner participating in or assisting an investigation, proceeding or hearing under this section.

10)  “Sexual assault” means as defined in [state statute or local law].

11)  “Stalking” means as defined in [state statute or local law].

12)  “Year” means a regular and consecutive 12-month period as determined by the employer; except that for the purposes of sections 5(F) and (H), “year” shall mean a calendar year.

(B) ACCRUAL OF EARNED PAID SICK TIME

After section XXX, the following new section XXX shall be inserted:

1)      All employees shall accrue a minimum of one hour of earned paid sick time for every [#] hours worked. Employees shall not [use] more than [#] hours of earned paid sick time in a year, unless the employer selects a higher limit. [Note: It is also possible to limit accrual: Employees will not accrue more than [#] hours of earned paid sick time in a year, unless the employer selects a higher limit.]

2)      Employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1) of the Federal Fair Labor Standards Act will be assumed to work 40 hours in each work week for purposes of earned paid sick time accrual unless their normal work week is less than 40 hours, in which case earned paid sick time accrues based upon that normal work week.

3)      Earned paid sick time as provided in this Section shall begin to accrue at the commencement of employment or on the date this law goes into effect, whichever is later. An employer may provide all paid sick time that an employee is expected to accrue in a year at the beginning of the year.

4)      Employees shall not be entitled to use accrued earned paid sick time until the [#] calendar day following commencement of their employment, [or the # calendar day following the date this law goes into effect, whichever is later,] unless otherwise permitted by the employer. On and after the [#] calendar day of employment, employees may use earned paid sick time as it is accrued.

5)      Earned paid sick time shall be carried over to the following year. Alternatively, in lieu of carryover of unused earned paid sick time from one year to the next, an employer may pay an employee for unused earned paid sick time at the end of a year and provide the employee with an amount of paid sick time that meets or exceeds the requirements of this Section that is available for the employee’s immediate use at the beginning of the subsequent year.

6)      Any employer with a paid leave policy, such as a paid time off policy, who makes available an amount of paid leave sufficient to meet the accrual requirements of this Section that may be used for the same purposes and under the same conditions as earned paid sick time under this Section is not required to provide additional paid sick time.

7)      Nothing in this Section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement or other separation from employment for accrued earned paid sick time that has not been used.

8)      If an employee is transferred to a separate division, entity or location, but remains employed by the same employer, the employee is entitled to all earned paid sick time accrued at the prior division, entity or location and is entitled to use all earned paid sick time as provided in this Section. When there is a separation from employment and the employee is rehired within [#] months of separation by the same employer, previously accrued earned paid sick time that had not been used shall be reinstated. Further, the employee shall be entitled to use accrued earned paid sick time and accrue additional earned paid sick time at the re-commencement of employment.

9)      When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all earned paid sick time they accrued when employed by the original employer, and are entitled to use earned paid sick time previously accrued.

10)  At its discretion, an employer may loan earned paid sick time to an employee in advance of accrual by such employee.

(C) USE OF EARNED PAID SICK TIME

1)      Earned paid sick time shall be provided to an employee by an employer for:

a)      An employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care;

b)      Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; care of a family member who needs preventive medical care; or in the case of a child, to attend a school meeting or a meeting at a place where the child is receiving care necessitated by the child’s health condition or disability, domestic violence, sexual assault, harassment or stalking;

c)      Closure of the employee’s place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for oneself or a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or

d)      Absence necessary due to domestic violence, sexual assault, harassment or stalking, provided the leave is to allow the employee to obtain for the employee or the employee’s family member:

i.        Medical attention needed to recover from physical or psychological injury or disability caused by domestic violence, sexual assault, harassment or stalking;

ii.       Services from a victim services organization;

iii.       Psychological or other counseling;

iv.       Relocation or taking steps to secure an existing home due to the domestic violence, sexual assault, harassment or stalking; or

v.        Legal services, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence, sexual assault, harassment or stalking.

2)      Earned paid sick time shall be provided upon the request of an employee. Such request may be made orally, in writing, by electronic means or by any other means acceptable to the employer. When possible, the request shall include the expected duration of the absence.

3)      When the use of earned paid sick time is foreseeable, the employee shall make a good faith effort to provide notice of the need for such time to the employer in advance of the use of the earned paid sick time and shall make a reasonable effort to schedule the use of earned paid sick time in a manner that does not unduly disrupt the operations of the employer.

4)      An employer that requires notice of the need to use earned paid sick time where the need is not foreseeable shall provide a written policy that contains procedures for the employee to provide notice. An employer that has not provided to the employee a copy of its written policy for providing such notice shall not deny earned paid sick time to the employee based on non-compliance with such a policy.

5)      An employer may not require, as a condition of an employee’s taking earned paid sick time, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned paid sick time.

6)      Earned paid sick time may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

7)      For earned paid sick time of 3 or more consecutive work days, an employer may require reasonable documentation that the earned paid sick time has been used for a purpose covered by section 5(C)(1). Documentation signed by a heath care professional indicating that earned paid sick time is necessary shall be considered reasonable documentation for purposes of this Section. In cases of domestic violence, sexual assault, harassment or stalking, one of the following types of documentation selected by the employee shall be considered reasonable documentation:

a)      a police report indicating that the employee or the employee’s family member was a victim of domestic violence, sexual assault, harassment or stalking;

b)      a signed statement from a victim and witness advocate affirming that the employee or employee’s family member is receiving services from a victim services organization; or

c)      a court document indicating that the employee or employee’s family member is involved in legal action related to domestic violence, sexual assault, harassment or stalking. An employer may not require that the documentation explain the nature of the illness or the details of the domestic violence, sexual assault, harassment or stalking. If an employer chooses to require documentation for earned paid sick time and the employer does not offer health insurance to the employee, then the employer is responsible for paying all out of pocket expenses the employee incurs in obtaining the documentation. If the employee does have health insurance, the employer is responsible for paying any costs charged to the employee by the health care provider for providing the specific documentation required by the employer. The employer is responsible for paying any costs charged to the employee for documentation of domestic violence, sexual assault, harassment or stalking required by the employer.

(D) EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED

1)      It shall be unlawful for an employer or any other person to interfere with, restrain, deny the exercise of, or the attempt to exercise, any right protected under this Section.

2)      An employer shall not take retaliatory personnel action or discriminate against an employee or former employee because the person has exercised rights protected under this Section. Such rights include, but are not limited to, the right to request or use earned paid sick time pursuant to this Section; the right to file a complaint with the Agency or courts or inform any person about any employer’s alleged violation of this Section; the right to participate in an investigation, hearing or proceeding or cooperate with or assist the Agency in its investigations of alleged violations of this Section; and the right to inform any person of his or her potential rights under this Section.

3)      It shall be unlawful for an employer’s absence control policy to count earned paid sick time taken under this Section as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

4)      Protections of this Section shall apply to any person who mistakenly, but in good faith, alleges violations of this Section.

5)      There shall be a rebuttable presumption of unlawful retaliatory personnel action under this Section whenever an employer takes adverse action against a person within 90 days of when that person:

a)      files a complaint with the Agency or a court alleging a violation of any provision of this Section;

b)      informs any person about an employer’s alleged violation of this Section;

c)      cooperates with the Agency or other persons in the investigation or prosecution of any alleged violation of this Section;

d)      opposes any policy, practice, or act that is unlawful under this Section; or

e)      informs any person of his or her rights under this Section.

(E) NOTICE AND POSTING

1)      Employers shall give employees written notice of the following at the commencement of employment or by [Date], whichever is later: employees are entitled to earned paid sick time and the amount of earned paid sick time, the terms of its use guaranteed under this Section, that retaliatory personnel action against employees who request or use earned paid sick time is prohibited, that each employee has the right to file a complaint or bring a civil action if earned paid sick time, as required by this Section, is denied by the employer or the employee is subjected to retaliatory personnel action for requesting or taking earned paid sick time, and the contact information for the Agency where questions about rights and responsibilities under this Section can be answered.

2)      The notice required in section 5(E)(1) shall be in English, [X, X,] and any language that is the first language spoken by at least X% of the employer’s workforce, provided that such notice has been provided by the Agency.

3)      The amount of earned paid sick time available to the employee, the amount of earned paid sick time taken by the employee to date in the year and the amount of pay the employee has received as earned paid sick time shall be recorded in, or on an attachment to, the employee’s regular paycheck.

4)      Employers shall display a poster that contains the information required in (1) in a conspicuous and accessible place in each establishment where such employees are employed. The poster displayed shall be in English, [X, X,] and any language that is the first language spoken by at least X% of the employer’s workforce, provided that such poster has been provided by the Agency.

5)      The Agency shall create and make available to employers, in all languages spoken by more than X% of the [State’s/County’s/City’s] workforce and any language deemed appropriate by the Agency, model notices and posters that contain the information required under section 5(E)(1) for employers’ use in complying with Section 5(E)(1) and (4).

6)      An employer who willfully violates the notice and posting requirements of this Section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense.

(F) EMPLOYER RECORDS

Employers shall retain records documenting hours worked by employees and earned paid sick time taken by employees, for a period of [three] years, and shall allow the Agency access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Section. When an issue arises as to an employee’s entitlement to earned paid sick time under this Section, if the employer does not maintain or retain adequate records documenting hours worked by the employee and earned paid sick time taken by the employee, or does not allow the Agency reasonable access to such records, it shall be presumed that the employer has violated the Section, absent clear and convincing evidence otherwise.

(G) REGULATIONS

The Agency shall be authorized to coordinate implementation and enforcement of this Section and shall promulgate appropriate guidelines or regulations for such purposes.

(H) ENFORCEMENT

[Bill drafting note: There are several different ways to enforce an earned paid sick time law, and a bill can contain a combination of them as long as the jurisdiction permits the types of enforcement selected. The model language includes all options.]

1)      Administrative Enforcement

a)      The Agency shall enforce the provisions of this Section. In effectuating such enforcement, the Agency shall establish a system utilizing multiple means of communication to receive complaints regarding non-compliance with this Section and investigate complaints received by the Agency in a timely manner.

b)      Any person alleging a violation of this Section shall have the right to file a complaint with the Agency within [X days/weeks/months/years] of the date the person knew or should have known of the alleged violation. The Agency shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation, provided, however, that with the authorization of such person, the Agency may disclose his or her name and identifying information as necessary to enforce this Section or for other appropriate purposes.

c)      Upon receiving a complaint alleging a violation of this Section, the Agency shall investigate such complaint and attempt to resolve it through mediation between the complainant and the subject of the complaint, or other means. The Agency shall keep complainants notified regarding the status of their complaint and any resultant investigation. If the Agency believes that a violation has occurred, it shall issue to the offending person or entity a notice of violation and the relief required of the offending person or entity. The Agency shall prescribe the form and wording of such notices of violation including any method of appealing the decision of the Agency.

d)      The Agency shall have the power to impose penalties provided for in this Section and to grant an employee or former employee all appropriate relief. Such relief shall include but not be limited to:

i.        for each instance of earned paid sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid under this Section or $X, whichever is greater;

ii.        for each instance of earned paid sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker: $X;

iii.       for each instance of unlawful retaliation not including discharge from employment: full compensation including wages and benefits lost, an additional amount of at least $X and equitable relief as appropriate; and

iv.       for each instance of unlawful discharge from employment: full compensation including wages and benefits lost, $X and equitable relief, including reinstatement, as appropriate.

e)      Any entity or person found to be in violation of the provisions of this Section shall be liable for a civil penalty payable to [state/county/city] not to exceed $X for the first violation and, for subsequent violations that occur within two years of any previous violation, not to exceed $X for the second violation and not to exceed $X for each successive violation.

f)       The Agency shall annually report on its website the number and nature of the complaints received pursuant to this Section, the results of investigations undertaken pursuant to this Section, including the number of complaints not substantiated and the number of notices of violations issued, the number and nature of adjudications pursuant to this Section, and the average time for a complaint to be resolved pursuant to this chapter.

2)      Civil Enforcement

a)         The Agency, the Attorney General [or City/County Attorney], any person aggrieved by a violation of this Section, or any entity a member of which is aggrieved by a violation of this Section, may bring a civil action in a court of competent jurisdiction against an employer violating this Section. Such action may be brought by a person aggrieved by a violation of this Section without first filing an administrative complaint.

b)         Upon prevailing in an action brought pursuant to this Section, aggrieved persons shall recover the full amount of any unpaid earned sick time plus any actual damages suffered as the result of the employer’s violation of this Section plus an equal amount of liquidated damages. Aggrieved persons shall also be entitled to reasonable attorney’s fees.

c)         Upon prevailing in an action brought pursuant to this Section, aggrieved persons shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including, without limitation, reinstatement to employment, back pay and injunctive relief.

d)         Any person aggrieved by a violation of this Section may file a complaint with the Attorney General [or City/County Attorney]. The filing of a complaint with the Attorney General [or City/County Attorney] will not preclude the filing of a civil action.

e)         The Attorney General [or City/County Attorney] may bring a civil action to enforce this Section. The Attorney General [or City/County Attorney] may seek injunctive relief. In addition to injunctive relief, or in lieu thereof, for any employer or other person found to have willfully violated this Section, the Attorney General [or City/County Attorney] may seek to impose a fine of X [example: $1,000] per violation, payable to the [City/County/State].

f)          The statute of limitations for a civil action brought pursuant to this Section shall be for a period of # years from the date the alleged violation occurred or the date the employee knew or should have known of the violation.

g)         Actions brought pursuant to this Section may be brought as a class action pursuant to the laws of [state].

3)      [City/County/State] officials are hereby authorized to consider, to the maximum extent permitted by law, an employer’s record of noncompliance with this Section in making decisions on [city/county/state] contracts, land use approvals and other entitlements to expand or operate within the [city/county/state]. The [city/county/state] is authorized to either deny approval or to condition approval on the employer’s future compliance.

(I) CONFIDENTIALITY AND NONDISCLOSURE

An employer may not require disclosure of details relating to domestic violence, sexual assault, harassment or stalking or the details of an employee’s or an employee’s family member’s health information as a condition of providing earned paid sick time under this Section. If an employer possesses health information or information pertaining to domestic violence, sexual assault, harassment or stalking about an employee or employee’s family member, such information shall be treated as confidential and not disclosed except to the affected employee or with the permission of the affected employee.

(J) ENCOURAGEMENT OF MORE GENEROUS EARNED PAID SICK TIME POLICES; NO EFFECT ON MORE GENEROUS POLICIES OR LAWS

1)      Nothing in this Section shall be construed to discourage or prohibit an employer from the adoption or retention of an earned paid sick time policy more generous than the one required herein.

2)      Nothing in this Section shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement providing more generous paid sick time to an employee than required herein. Nothing in this Section shall be construed as diminishing the rights of public employees regarding paid sick time or use of paid sick time as provided in [laws of the state pertaining to public employees].

3)      [For State laws] Nothing in this Section shall be construed to supersede any provision of any local law that provides greater rights to paid sick time than the rights established under this Section.

(K) OTHER LEGAL REQUIREMENTS

This Section provides minimum requirements pertaining to earned paid sick time and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of earned paid sick time or that extends other protections to employees.

(L) PUBLIC EDUCATION AND OUTREACH

The Agency [or another relevant official, administrative agency] shall develop and implement a multilingual outreach program to inform employees, parents and persons who are under the care of a health care provider about the availability of earned paid sick time under this Section. This program shall include the distribution of notices and other written materials in English, [X, X,] and any language that is the first language spoken by at least X% of the [state’s/county’s/city’s] population to all child care and elder care providers, domestic violence shelters, schools, hospitals, community health centers and other health care providers.

SECTION 6. PAID FAMILY AND MEDICAL LEAVE

[Note: Drafting a new paid family and medical leave bill requires state-specific research, analysis of underlying state and/or local law and consideration of complex policy issues. The National Partnership for Women & Families and A Better Balance are available to do any necessary legal research and drafting, and to work with you to customize this model.]

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS

1)      “Application year” means the 12-month period beginning on the first day of the calendar week in which an individual files an application for family and medical leave insurance benefits.

2)      “Covered active duty” means as defined in Section 101(14) of the Family and Medical Leave Act, 29 U.S.C. 2611(14).

3)      “Covered individual” means:

a)      Any person who: [Note: select one or more of the first three options below, and include the fourth option if allowing self-employed individuals to opt in.

i.       Contributed [X dollars] to the paid leave system during the 12-month period prior to submitting an application; or

ii.      Worked for [X amount of time] for any employer during the 12-month period prior to submitting an application; or

iii.      Earned [X dollars] from work during the 12-month period prior to submitting an application; or

iv.      Is self-employed, elects coverage and meets the requirements of section 6(M);

b)      Meets the administrative requirements outlined in this section and in regulations; and

c)      Submits an application.

4)      “Covered servicemember” means as defined in Section 101(15) of the Family and Medical Leave Act, 29 U.S.C. 2611(15).

5)      “Department” means the [X].

6)      “Director” means the Director of the Department.

7)      “Employee” means as defined in [state wage and hour law].

8)      “Employer” means as defined in [state law with the broadest possible definition of employer, or if no state law is usable, can use Fair Labor Standards Act, 29 U.S.C. 203(d).]

9)      “Family and medical leave insurance benefits” means the benefits provided under the terms of Section 6 of this Act.

10)  “Family member” means:

a)      A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the covered individual stands in loco parentis;

b)      A biological, adoptive or foster parent, stepparent or legal guardian of a covered individual or a covered individual’s spouse or domestic partner or a person who stood in loco parentis when the covered individual or the covered individual’s spouse or domestic partner was a minor child;

c)      A person to whom the covered individual is legally married under the laws of any state, or a domestic partner of a covered individual [as defined under X state law or] as registered under the laws of any state or political subdivision;

d)      A grandparent, grandchild or sibling (whether a biological, foster, adoptive or step relationship) of the covered individual or the covered individual’s spouse or domestic partner; or

e)      A designated person, which shall mean one additional person designated by a covered individual for whom the covered individual will provide care under section 6 of this Act if the designated person has a serious health condition.

11)  “Health care provider” means any person licensed under Federal or [State] law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel, or certified nurse-midwives.

12)  “Next of kin” means as defined in Section 101(17) of the Family and Medical Leave Act, 29 U.S.C. 2611(17).

13)  “Qualifying exigency leave” means leave for the family member of a military member for the purposes specified in subsections (i) through (iv) of 29 C.F.R. 82s.126(b)(3) and subsections (i) through (iv) of 29 C.F.R. 825.126(b)(8), as well as the following reasons:

a)      To address any issue that arises from the fact that the military member is notified of an impending call or order to covered active duty seven or less calendar days prior to the date of deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the military member is notified of an impending call or order to covered active duty;

b)      To attend any official ceremony, program or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member;

c)      To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member;

d)      To make or update financial or legal arrangements to address the military member’s absence while on covered active duty or call to covered active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust;

e)      To act as the military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging or appealing military service benefits while the military member is on covered active duty or call to covered active duty status, and for a period of 90 days following the termination of the military member’s covered active duty status;

f)       To attend counseling provided by someone other than a healthcare provider, for oneself, for the military member, or for the biological, adopted or foster child, stepchild or legal ward of the military member, a child of the military member’s domestic partner, or a child to whom the military member stands in loco parentis, provided that the need for counseling arises from the covered active duty or call to covered active duty status of the military member;

g)      To spend time with the military member who is on short-term, temporary, Rest and Recuperation leave during the period of deployment. Leave taken for this purpose can be used for a period of 15 calendar days beginning on the date the military member commences each instance of Rest and Recuperation leave;

h)      To attend arrival ceremonies, reintegration briefings and events and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the military member’s covered active duty status;

i)        To address issues that arise from the death of the military member while on covered active duty status, such as meeting and recovering the body of the military member, making funeral arrangements and attending funeral services; or

j)        To address other events which arise out of the military member’s covered active duty or call to covered active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

14)  “Retaliatory personnel action” means denial of any right guaranteed under this Section including but not limited to any threat, discharge, suspension, demotion, reduction of hours, any other adverse action against an employee for the exercise of any right guaranteed herein, or reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal, state or local agency. Retaliatory personnel actions shall also include interference with or punishment for in any manner participating in or assisting an investigation, proceeding or hearing under this Section.

15)  “Serious health condition” means an illness, injury, impairment, pregnancy, recovery from childbirth, or physical or mental condition that involves inpatient care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider [OR “Serious health condition” is as defined at Section 101(11) of the Family and Medical Leave Act, 29 U.S.C. 2611(11) or the [state FMLA].]

(B) ELIGIBILITY FOR BENEFITS

Beginning [X days] following establishment of the Family and Medical Leave Insurance Program [note: X here must match the second X in Section 6(N)(1)], family and medical leave insurance benefits are payable to an individual who:

1)      Meets the definition of “covered individual” under Section 6(A)(3); and

2)      Meets one of the following requirements:

a)      Because of birth, adoption or placement through foster care, is caring for a new child during the first year after the birth, adoption or placement of that child;

b)      Is caring for a family member with a serious health condition;

c)      Has a serious health condition (including pregnancy) that makes the covered individual unable to perform the functions of the position of such employee;

d)      Is caring for a covered servicemember who is the covered individual’s next of kin;

e)      Because of any “qualifying exigency leave” arising out of the fact that the family member of the covered individual is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces; or

f)       Any reason set forth in [the state FMLA].

(C) DURATION OF BENEFITS

1)      The maximum number of weeks during which family and medical leave insurance benefits are payable under Section 6(B)(2)(c) in an application year is [X weeks]. The maximum number of weeks during which family and medical leave insurance benefits are payable under Section 6(B)(2)(a), (b), (d), or (e) in an application year is [X weeks]. A covered individual is eligible for [X weeks] of leave under (a) of this subsection and also [X weeks] of leave under (b) of this subsection in an application year.

2)      Family and medical leave insurance benefits are not payable for the first five calendar days in an application year that a covered individual meets the eligibility requirements of Section 6(B)(1) and (2). This shall be known as the “waiting period” referred to in subsection (3) of this Section.

3)      If the covered individual uses 10 or more days of family and medical leave insurance benefits in an application year, the covered individual shall be paid for the waiting period. The waiting period need only be served once every application year.

4)      The first payment of benefits must be made to an individual within [X] weeks after the claim is filed and subsequent payments must be made [semimonthly] thereafter.

(D) AMOUNT OF BENEFITS

1)      The amount of family and medical leave insurance benefits shall be determined as follows: [Choose one of the first three options below:]

  1. The weekly benefit shall be [X%] of the covered individual’s average weekly wages during the 12 months preceding submission of the application (or the average weekly wages during the time the covered individual worked if it was less than 12 months), up to a maximum of [X%] of the statewide average weekly wage. [OR]
  2. The weekly benefit shall be [a sliding scale percentage of average weekly wages, with a higher percentage of wage replacement for low wage workers], up to a maximum of [X dollars]. [OR]
  3. The weekly benefit shall be [X dollars] per week.
  4. In no case shall the weekly benefit be less than [X dollars].

2)      Family and medical leave insurance benefits are not payable for less than eight hours of family and medical leave taken in one work week.

(E) CONTRIBUTIONS

1)      Payroll contributions shall be authorized in order to finance the payment of benefits under the family and medical leave insurance program.

2)      Payroll contributions shall be paid by employers and employees in the ratio of [XX] in an amount to be determined by the [state investment board or other state entity/official responsible for making investment or other financial decisions in the state] [OR specify contributions of X% of wages or X dollars for the program’s first year]. In no case shall payroll contributions from an employee exceed [X dollars] total [or X% of wages, up to X dollars total] in any 12-month period. The [state investment board or other state entity/official above] shall be responsible for evaluating and determining on an annual basis the amount of payroll contributions and maximum employee contribution necessary to finance the family and medical leave insurance benefits program.

(F) REDUCED LEAVE SCHEDULE

1)      A covered individual shall be entitled, at the option of the covered individual, to take paid family and medical leave on an intermittent or reduced leave schedule in which all of the leave authorized under this Section is not taken sequentially. Family and medical leave insurance benefits for intermittent or reduced leave schedules shall be prorated.

2)      The covered individual shall make a reasonable effort to schedule paid family and medical leave under this section so as not to unduly disrupt the operations of the employer. The covered individual shall provide the employer with prior notice of the schedule on which the covered individual will be taking the leave, to the extent practicable. Paid family and medical leave taken under this section shall not result in a reduction of the total amount of leave to which an employee is entitled beyond the amount of leave actually taken.

3)      Nothing in this section shall be construed to entitle a covered individual to more leave than required under section 6(C).

(G) LEAVE AND EMPLOYMENT PROTECTION

1)      Any covered individual who exercises his or her right to family and medical leave insurance benefits or earns waiting period credits under section 6(C)(2) shall, upon the expiration of that leave, be entitled to be restored by the employer to the position held by the covered individual when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay and other terms and conditions of employment including fringe benefits and service credits that the covered individual had been entitled to at the commencement of leave.

2)      During any leave taken pursuant to section 6(B), the employer shall maintain any health care benefits the covered individual had prior to taking such leave for the duration of the leave as if the covered individual had continued in employment continuously from the date he or she commenced the leave until the date the family and medical leave insurance benefits terminate; provided, however, that the covered individual shall continue to pay the covered individual’s share of the cost of health benefits as required prior to the commencement of the leave.

3)      This section shall be enforced as provided in [X – Could be state FMLA, state civil rights law, or state unemployment law—or new enforcement language if necessary].

(H) RETALIATORY PERSONNEL ACTIONS PROHIBITED

1)      It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Section.

2)      An employer, temporary help company, employment agency, employee organization or other person shall not take retaliatory personnel action or otherwise discriminate against a person because he or she exercised rights protected under section 6 of this Act. Such rights include but are not limited to the right to request, file for, apply for or use benefits provided for under this Section; communicate to the employer or any other person or entity an intent to file a claim, a complaint with the Department or courts, or an appeal, or has testified or is about to testify or has assisted in any investigation, hearing or proceeding under this Section, at any time, including during the waiting period and the period in which the person receives family and medical leave insurance benefits under this Section; inform any person about any employer’s alleged violation of this Section; and the right to inform any person of his or her rights under this Section.

3)      It shall be unlawful for an employer’s absence control policy to count paid family and medical leave taken under this Section as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

4)      Protections of this section shall apply to any person who mistakenly, but in good faith, alleges violations of this Section.

5)      This section shall be enforced as provided in [X – Could be state FMLA, state civil rights law, or state unemployment law—or new enforcement language if necessary].

(I) COORDINATION OF BENEFITS

1)      Leave taken with wage replacement under this Section that also qualifies as leave under the federal [or state] FMLA shall run concurrently with leave taken under the federal [or state] FMLA.

2)      An employer may require that payment made pursuant to this section be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy. The employer must give employees written notice of this requirement.

3)      This section does not diminish an employer’s obligation to comply with any of the following that provide more generous leave: a collective bargaining agreement; an employer policy; or any law.

4)      An individual’s right to leave under this section may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the effective date of this Section. Any agreement by an individual to waive his or her rights under this section is void as against public policy.

(J) NOTICE

1)      Each employer shall provide written notice to each employee upon hiring and annually thereafter. An employer shall also provide written notice to an employee when the employee requests leave under this Section, or when the employer acquires knowledge that an employee’s leave may be for a qualifying reason under Section 6(B)(2). Such notice shall include:

a)      the employee’s right to family and medical leave insurance benefits under this Section and the terms under which it may be used;

b)      the amount of family and medical leave insurance benefits;

c)      the procedure for filing a claim for benefits;

d)      the procedure for selecting a designated person as defined in this Section;

e)      the right to job protection and benefits continuation under Section 6(G);

f)       that discrimination and retaliatory personnel actions against a person for requesting, applying for or using family and medical leave insurance benefits is prohibited under Section 6(H); and

g)      that the employee has a right to file a complaint for violations of this Section.

2)      An employer shall also display and maintain a poster in a conspicuous place accessible to employees at the employer’s place of business that contains the information required by this section in English, [X, X,] and any language that is the first language spoken by at least X% of the employer’s workforce, provided that such notice has been provided by the Department. The Director may adopt regulations to establish additional requirements concerning the means by which employers shall provide such notice.

3)      An employer may establish a uniform process for employees to select a “designated person” as defined in this Section within thirty days of the individual’s date of hire. Thereafter, the employer must permit the employee to make or change such a designation, as applicable, on an annual basis. If an employer establishes a uniform process, the covered employee must make such a designation using the employer’s process. If an employer does not establish such a uniform process, the employee may make such a designation when filing a claim for benefits.

4)      Employees shall provide notice to their employers as soon as practicable of their intention to take leave under this Section.

(K) ENFORCEMENT

1)      The Director shall establish a system for appeals in the case of a denial of family and medical leave insurance benefits. In establishing such system, the Director may utilize any and all procedures and appeals mechanisms established under the [state unemployment compensation law].

2)      Judicial review of any decision with respect to family and medical leave insurance benefits shall be permitted in a court of competent jurisdiction after a party aggrieved thereby has exhausted all administrative remedies established by the Director.

3)      The Director shall implement procedures to ensure confidentiality of all information related to any claims filed or appeals taken to the maximum extent permitted by applicable laws.

(L) ERRONEOUS PAYMENTS AND DISQUALIFICATION FOR BENEFITS

1)      A covered individual is disqualified from family and medical leave insurance benefits for one year if the individual is determined by the Director to have willfully made a false statement or misrepresentation regarding a material fact, or willfully failed to report a material fact, to obtain benefits under this Section.

2)      If family and medical leave insurance benefits are paid erroneously or as a result of willful misrepresentation, or if a claim for family and medical leave insurance benefits is rejected after benefits are paid, the Department may seek repayment of benefits from the recipient. The Director shall exercise his or her discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience.

(M) ELECTIVE COVERAGE

1)      A self-employed person, including a sole proprietor, partner or joint venturer, may elect coverage under this Act for an initial period of not less than three years. The self-employed person must file a notice of election in writing with the Director, as required by the Department. The election becomes effective on the date of filing the notice. As a condition of election, the self-employed person must agree to supply any information concerning income that the Department deems necessary.

2)      A self-employed person who has elected coverage may withdraw from coverage within 30 days after the end of the three-year period of coverage, or at such other times as the Director may prescribe by rule, by filing written notice with the Director, such withdrawal to take effect not sooner than 30 days after filing the notice.

(N) FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM

1)      Within [X days] of the effective date of this Section, the Department shall establish and administer a family and medical leave insurance program and within [X months] following establishment of the program pay family and medical leave insurance benefits as specified in this Section.

2)      The Department shall establish reasonable procedures and forms for filing claims for benefits under this Section and shall specify what supporting documentation is necessary to support a claim for benefits, including any documentation required from a health care provider for proof of a serious health condition.

3)      The Department shall notify the employer within five business days of a claim being filed pursuant to this Section.

4)      The Department shall use information sharing and integration technology to facilitate the disclosure of relevant information or records so long as an individual consents to the disclosure as required under state law.

5)      Information contained in the files and records pertaining to an individual under this Section are confidential and not open to public inspection, other than to public employees in the performance of their official duties. However, the individual or an authorized representative of an individual may review the records or receive specific information from the records upon the presentation of the individual’s signed authorization.

6)      The Director shall adopt rules as necessary to implement this Section.

(O) FEDERAL INCOME TAX

1)      If the Internal Revenue Service determines that family and medical leave insurance benefits under this Section are subject to federal income tax, the Department must advise an individual filing a new claim for family and medical leave insurance benefits, at the time of filing such claim, that:

a)      The Internal Revenue Service has determined that benefits are subject to federal income tax;

b)      Requirements exist pertaining to estimated tax payments;

c)      The individual may elect to have federal income tax deducted and withheld from the individual’s payment of benefits in the amount specified in the federal internal revenue code; and

d)      The individual is permitted to change a previously elected withholding status.

2)      If the individual elects to have federal tax payments withheld, the Department shall deduct and withhold the amount specified in the Internal Revenue Code in a manner consistent with [laws of the state], and amounts deducted and withheld from benefits must remain in the Family and Medical Leave Insurance Fund established in Section 6(P) until transferred to the federal taxing authority as a payment of income tax.

3)      The Director shall follow all procedures specified by the Internal Revenue Service pertaining to the deducting and withholding of income tax.

(P) FAMILY AND MEDICAL LEAVE INSURANCE ACCOUNT FUND – ESTABLISHMENT AND INVESTMENT

1)      The Family and Medical Leave Insurance Fund is created in the custody of the [X, such as the state financial officer]. Expenditures from the Fund may be used only for the purposes of the family and medical leave insurance benefits program. Only the Director of the Department or the Director’s designee may authorize expenditures from the Fund.

2)      Whenever, in the judgment of the [X, such as the state financial officer], there shall be in the Family and Medical Leave Insurance Fund an amount of funds in excess of that amount deemed by [X, such as the state financial officer] to be sufficient to meet the current expenditures properly payable there from, [X, such as the state financial officer] shall have full power to invest, reinvest, manage, contract, sell or exchange investments acquired with such excess funds in the manner prescribed by [state law].

(Q) REPORTS

Beginning [X date], the Department shall report to the legislature by [September 1st] of each year on projected and actual program participation by Section 6(B)(2) purpose, gender of beneficiary, premium rates, fund balances, outreach efforts, and, for leaves taken under Section 6(B)(2)(b), family members for whom leave was taken to provide care.

(R) PUBLIC EDUCATION

The Department shall conduct a public education campaign to inform workers and employers regarding the availability of family and medical leave insurance benefits.  The Department may use [X%] of the funds collected for the family and medical leave insurance benefits program in a given year to pay for the public education program. Outreach information shall be available in English, [X, X,] and other languages spoken by more than [X%] of the state’s population.

(S) SHARING TECHNOLOGY

The Department is encouraged to use state data collection and technology to the extent possible and to integrate the program with existing state policies.

SECTION 7. DEPENDENT CARE TAX CREDIT

After section XXX, the following new section XXX shall be inserted:

DEPENDENT CARE TAX CREDIT

1)      A taxpayer shall be allowed a tax credit calculated as a percentage of the child and dependent care tax credit under section 21 of the Internal Revenue Code for the same taxable year before it has been reduced by the taxpayer’s federal tax liability and without regard to whether the taxpayer claimed this federal credit.

2)      The applicable percentage for a taxpayer is:

a)      100 percent of the allowable federal credit if state Adjusted Gross Income is $24,999 or less.

b)      80 percent of the allowable federal credit if state Adjusted Gross Income is $25,000-34,999.

c)      60 percent of the allowable federal credit if state Adjusted Gross Income is $35,000-44 ,999.

d)      40 percent of the allowable federal credit if state Adjusted Gross Income is $45,000-54,999.

e)      20 percent of the allowable federal credit if state Adjusted Gross Income is $55,000-64,999.

3)      The credit under this section shall be allowed against the taxes imposed by this article for the taxable year, reduced by the credits permitted by this article. If the credit exceeds the tax as so reduced, the taxpayer may receive, and the comptroller shall pay as an overpayment, without interest, the amount of such excess.

SECTION 8. PREGNANT WORKERS FAIRNESS

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Pregnancy” means pregnancy, childbirth, or a related condition, including, but not limited to, lactation.

2)      “Reasonable accommodation” means any accommodation that can be made for an employee that shall not cause undue hardship in the conduct of the employer’s business as determined through a good faith, timely interactive process between the employee and employer. Accommodations may include, but are not limited to, acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk.

3)      “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as: the nature and cost of the accommodation; the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer. The fact that the employer provides, or would be required to provide, a similar accommodation to another employee or employee(s) shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.

(B) SEX DISCRIMINATION—It is unlawful sex discrimination for an employer to:

1)      Fail or refuse to treat an employee or applicant for employment that the employer knows or should know is affected by pregnancy as well as the employer treats or would treat any other employee or applicant not so affected but similar in the ability or inability to work, without regard to the source of any condition affecting the other employee’s or applicant’s ability or inability to work;

2)      Fail or refuse to make reasonable accommodations to the known limitations related to the pregnancy of an applicant for employment or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer;

3)      Deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy of an employee or applicant for employment;

4)      Require an applicant for employment or employee affected by pregnancy to accept an accommodation that such applicant or employee chooses not to accept, if such an applicant or employee does not have a known limitation related to pregnancy, or if such an accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;

5)      Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations related to the pregnancy of the employee; or

6)      Take adverse action against an employee in the terms, conditions or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy of the employee.

(C) NOTICE OF RIGHTS

1)      An employer shall provide written notice in a form and manner to be determined by the [Equal Rights Commission] of the right to be free from discrimination in relation to pregnancy, including the right to reasonable accommodations:

a)      To all employees within 120 days of the effective date of this provision;

b)      To new employees at the commencement of employment;

c)      To any employee who notifies the employer of her pregnancy, within 10 days of such notification; and

d)      By conspicuously posting at an employer’s place of business in an area accessible to employees.

2)      The [Equal Rights Commission] shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies and job applicants about their rights and responsibilities under this provision.

(D) NO DIMINUTION OF RIGHTS

This provision shall not be construed to preempt, limit, diminish or otherwise affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage for pregnancy under any other provision of law.

SECTION 9. REPEAL OF TARGETED REGULATION OF ABORTION PROVIDERS

1)      Section XXX [any provision of law that singles out abortion facilities or personnel for requirements that are more burdensome than those imposed on facilities that provide medically comparable procedures] is hereby repealed.

2)      Section XXX [any provision of law that is the proximate cause of the closure of an abortion facility or facilities and which has not been proven by clear and convincing evidence necessary to prevent a bona fide threat to patient safety] is hereby repealed.

3)      Section XXX [any provision that includes onerous licensing standards comparable or equivalent to the standards of ambulatory surgical centers e.g. procedure room size, corridor width, required minimum distance from hospital, transfer agreement with hospitals] is hereby repealed.

4)      Section XXX [any provision that includes onerous requirements on clinicians that perform abortions e.g. admitting privileges] is hereby repealed.

SECTION 10. REPEAL WAITING PERIODS AND MANDATORY BIASED COUNSELING

1)      Section XXX [any provision of law that requires a waiting period before an abortion is performed] is hereby repealed.

2)      Section XXX [any provision of law that necessitates multiple trips to a clinic for reasons other than medical necessity] is hereby repealed.

3)      Section XXX [any provision of law that necessitates an ultrasound or sonogram for reasons other than medical necessity] is hereby repealed.

SECTION 11. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision, or application thereof to any person or circumstance, is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.

SECTION 12. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016.

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