Assembly Bill A9559

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9559

                          I N  A S S E M B L Y

                             March 16, 2012
                               ___________

Introduced  by M. of A. BOYLAND -- read once and referred to the Commit-
  tee on Labor

AN ACT to amend the labor law, in relation to establishing the New  York
  state family care and medical leave act

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a  new  article  3-A  to
read as follows:
                               ARTICLE 3-A
            NEW YORK STATE FAMILY CARE AND MEDICAL LEAVE ACT
SECTION 110. SHORT TITLE.
        111. DEFINITIONS.
        112. FAMILY CARE AND MEDICAL LEAVE.
        113. EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED.
        114. ENFORCEMENT.
        115. WAIVER BY COLLECTIVE BARGAINING.
        116. MINIMUM REQUIREMENTS.
        117. SEVERABILITY.
  S 110. SHORT  TITLE.  THIS  ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "NEW YORK STATE FAMILY CARE AND MEDICAL LEAVE ACT".
  S 111. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
  1. "CHILD" MEANS A BIOLOGICAL, ADOPTED OR FOSTER CHILD, A  STEP-CHILD,
A  LEGAL WARD OR A CHILD OF A PERSON WHO STANDS IN PARENTAL RELATIONSHIP
TO THE CHILD WHO IS:
  (A) LESS THAN EIGHTEEN YEARS OF AGE; OR
  (B) EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE  BECAUSE
OF A MENTAL OR PHYSICAL DISABILITY.
  2.  "DOMESTIC  PARTNER"  MEANS A PERSON AT LEAST EIGHTEEN YEARS OF AGE
WHO:
  (A) IS DEPENDENT UPON THE EMPLOYEE FOR  SUPPORT  AS  SHOWN  BY  EITHER
UNILATERAL DEPENDENCE OR MUTUAL INTERDEPENDENCE, AS EVIDENCED BY A NEXUS
OF  FACTORS  INCLUDING,  BUT NOT LIMITED TO, COMMON OWNERSHIP OF REAL OR
PERSONAL PROPERTY, COMMON HOUSEHOLDING, CHILDREN  IN  COMMON,  SIGNS  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14969-02-2
              

A. 9559                             2

INTENT  TO  MARRY,  SHARED  BUDGETING,  AND  THE  LENGTH OF THE PERSONAL
RELATIONSHIP WITH THE EMPLOYEE; OR
  (B)  HAS  REGISTERED  AS THE DOMESTIC PARTNER OF THE EMPLOYEE WITH ANY
REGISTRY OF DOMESTIC PARTNERSHIPS MAINTAINED BY THE EMPLOYER  OF  EITHER
PARTY, THE STATE, OR ANY COUNTY, CITY, TOWN, OR VILLAGE.
  (C) FOR THE PURPOSES OF THIS ARTICLE, THE DEFINITION OF DOMESTIC PART-
NER  MADE  BY  THIS SUBDIVISION SHALL SUPPLEMENT OR SUPERSEDE ANY INCON-
SISTENT DEFINITION OF SUCH TERM BY ANY OTHER GENERAL, SPECIAL, OR  LOCAL
LAW,  ORDINANCE,  CODE,  OR  CHARTER  SO  THAT NO PERSON QUALIFYING AS A
DOMESTIC PARTNER, AS DEFINED IN THIS SUBDIVISION, WHETHER REGISTERED  OR
UNREGISTERED,  SHALL, FOR THE PURPOSES OF THIS ARTICLE, BE DEEMED NOT TO
BE A DOMESTIC PARTNER.
  (D) "DOMESTIC PARTNER" SHALL NOT INCLUDE ANY PERSON WHO IS RELATED  BY
BLOOD TO THE EMPLOYEE IN A MANNER THAT WOULD BAR MARRIAGE TO THE EMPLOY-
EE IN NEW YORK STATE.
  3. "EMPLOYER" MEANS EITHER OF THE FOLLOWING:
  (A)  ANY  PERSON  WHO  DIRECTLY EMPLOYS ONE HUNDRED OR MORE PERSONS TO
PERFORM SERVICES FOR A WAGE OR SALARY.
  (B) THE STATE, AND ANY POLITICAL OR CIVIL SUBDIVISION OF THE STATE AND
CITIES.
  4. "EMPLOYMENT IN THE SAME OR A COMPARABLE POSITION" MEANS  EMPLOYMENT
IN  A  POSITION  THAT HAS THE SAME OR SIMILAR DUTIES AND PAY THAT CAN BE
PERFORMED AT THE SAME OR SIMILAR GEOGRAPHIC  LOCATION  AS  THE  POSITION
HELD PRIOR TO THE LEAVE.
  5. "FAMILY CARE AND MEDICAL LEAVE" MEANS ANY OF THE FOLLOWING:
  (A)  LEAVE  FOR  REASON  OF  THE BIRTH OF A CHILD OF THE EMPLOYEE, THE
PLACEMENT OF A CHILD WITH AN EMPLOYEE IN CONNECTION WITH THE ADOPTION OR
FOSTER CARE OF THE CHILD BY THE EMPLOYEE, OR THE SERIOUS  HEALTH  CONDI-
TION OF A CHILD OF THE EMPLOYEE.
  (B)  LEAVE TO CARE FOR A FAMILY MEMBER WHO HAS A SERIOUS HEALTH CONDI-
TION.
  (C) LEAVE BECAUSE OF AN EMPLOYEE'S OWN SERIOUS HEALTH  CONDITION  THAT
MAKES  THE  EMPLOYEE  UNABLE TO PERFORM THE FUNCTIONS OF THE POSITION OF
THAT EMPLOYEE, EXCEPT FOR LEAVE TAKEN FOR DISABILITY ON ACCOUNT OF PREG-
NANCY, CHILDBIRTH, OR RELATED MEDICAL CONDITIONS.
  6. "FAMILY MEMBER" MEANS A CHILD, SPOUSE,  DOMESTIC  PARTNER,  PARENT,
GRANDCHILD, GRANDPARENT, MOTHER OR FATHER OF SPOUSE OR DOMESTIC PARTNER.
  7. "FMLA" MEANS THE FEDERAL FAMILY AND MEDICAL LEAVE ACT OF 1993 (P.L.
103-3).
  8.  "HEALTH  CARE  PROVIDER"  MEANS  A HEALTH CARE PRACTITIONER WHO IS
LICENSED UNDER RELEVANT FEDERAL OR STATE LAWS TO PROVIDE MEDICAL,  EMER-
GENCY  OR HEALTH SERVICES AND IS TREATING AN EMPLOYEE OR A FAMILY MEMBER
FOR A SERIOUS HEALTH CONDITION.
  9. "PARENT" MEANS BIOLOGICAL OR ADOPTIVE PARENT, STEP-PARENT OR PERSON
WHO STOOD IN PARENTAL RELATIONSHIP TO AN EMPLOYEE WHEN THE EMPLOYEE WAS:
  (A) LESS THAN EIGHTEEN YEARS OF AGE; OR
  (B) EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE  BECAUSE
OF A MENTAL OR PHYSICAL DISABILITY.
  10.  PERSONS  WHO  STAND  IN  PARENTAL RELATIONSHIP TO A CHILD INCLUDE
THOSE WITH DAY-TO-DAY  RESPONSIBILITIES  TO  CARE  FOR  AND  FINANCIALLY
SUPPORT  A  CHILD OR, IN THE CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSI-
BILITY FOR THE EMPLOYEE WHEN THE EMPLOYEE WAS A CHILD. A  BIOLOGICAL  OR
LEGAL RELATIONSHIP IS NOT NECESSARY.
  11.  "SERIOUS  HEALTH CONDITION" MEANS AN ILLNESS, INJURY, IMPAIRMENT,
OR PHYSICAL OR MENTAL CONDITION THAT:

A. 9559                             3

  (A) REQUIRES INPATIENT CARE IN  A  HOSPITAL,  HOSPICE  OR  RESIDENTIAL
HEALTH CARE FACILITY; OR
  (B) REQUIRES CONTINUING TREATMENT BY A HEALTH CARE PROVIDER.
  12.  "SMALL  BUSINESS  EMPLOYER" MEANS ANY PERSON WHO DIRECTLY EMPLOYS
FEWER THAN ONE HUNDRED PERSONS TO PERFORM SERVICES FOR A WAGE OR SALARY.
  S 112. FAMILY CARE AND MEDICAL LEAVE. 1. (A)  AN  EMPLOYEE  WITH  MORE
THAN  TWELVE MONTHS OF SERVICE WITH AN EMPLOYER AND WHO HAS AT LEAST ONE
THOUSAND TWO HUNDRED FIFTY HOURS OF SERVICE WITH THE EMPLOYER DURING THE
PREVIOUS TWELVE-MONTH PERIOD SHALL BE ENTITLED TO TAKE UP TO A TOTAL  OF
TWELVE  WORKWEEKS IN ANY TWELVE-MONTH PERIOD FOR FAMILY CARE AND MEDICAL
LEAVE. FAMILY CARE AND MEDICAL LEAVE REQUESTED PURSUANT TO THIS  SECTION
SHALL  NOT  BE  DEEMED TO HAVE BEEN GRANTED UNLESS THE EMPLOYER PROVIDES
THE EMPLOYEE, UPON GRANTING THE LEAVE REQUEST, A GUARANTEE OF EMPLOYMENT
IN THE SAME OR A COMPARABLE POSITION UPON THE TERMINATION OF THE  LEAVE.
THE  COMMISSIONER  SHALL  ADOPT REGULATIONS SPECIFYING THE ELEMENTS OF A
REASONABLE REQUEST.
  (B) THE PROVISIONS OF PARAGRAPH (A)  OF  THIS  SUBDIVISION  SHALL  NOT
APPLY  TO  AN  EMPLOYEE  OF  A  SMALL  BUSINESS EMPLOYER AS SUCH TERM IS
DEFINED IN SECTION ONE HUNDRED ELEVEN OF THIS ARTICLE.
  2. (A) AN EMPLOYER SHALL NOT BE REQUIRED TO PAY AN  EMPLOYEE  FOR  ANY
LEAVE  TAKEN  PURSUANT  TO  SUBDIVISION  ONE  OF THIS SECTION, EXCEPT AS
REQUIRED BY PARAGRAPH (B) OF THIS SUBDIVISION.
  (B) AN EMPLOYEE TAKING A LEAVE PERMITTED BY SUBDIVISION  ONE  OF  THIS
SECTION  MAY  ELECT, OR AN EMPLOYER MAY REQUIRE THE EMPLOYEE, TO SUBSTI-
TUTE FOR LEAVE ALLOWED UNDER SUBDIVISION ONE OF THIS SECTION ANY OF  THE
EMPLOYEE'S  ACCRUED VACATION LEAVE OR OTHER ACCRUED TIME OFF DURING THIS
PERIOD OR ANY OTHER PAID OR UNPAID TIME OFF NEGOTIATED WITH THE  EMPLOY-
ER.  IF  AN EMPLOYEE TAKES A LEAVE BECAUSE OF THE EMPLOYEE'S OWN SERIOUS
HEALTH CONDITION, THE EMPLOYEE MAY ALSO ELECT, OR THE EMPLOYER MAY  ALSO
REQUIRE THE EMPLOYEE, TO SUBSTITUTE ACCRUED SICK LEAVE DURING THE PERIOD
OF  THE  LEAVE.   HOWEVER, AN EMPLOYEE SHALL NOT USE SICK LEAVE DURING A
PERIOD OF LEAVE IN CONNECTION WITH THE BIRTH, ADOPTION, OR  FOSTER  CARE
OF  A CHILD, OR TO CARE FOR A FAMILY MEMBER WITH A SERIOUS HEALTH CONDI-
TION, UNLESS MUTUALLY AGREED TO BY THE EMPLOYER AND THE EMPLOYEE.
  3. (A) DURING ANY PERIOD THAT AN ELIGIBLE EMPLOYEE TAKES LEAVE  PURSU-
ANT  TO SUBDIVISION ONE OF THIS SECTION OR TAKES LEAVE THAT QUALIFIES AS
LEAVE TAKEN UNDER THE FMLA, THE EMPLOYER  SHALL  MAINTAIN  AND  PAY  FOR
COVERAGE  UNDER A "GROUP HEALTH PLAN," AS DEFINED IN SECTION 5000(B) (1)
OF THE INTERNAL REVENUE CODE OF 1986, FOR THE DURATION OF THE LEAVE, NOT
TO EXCEED TWELVE WORKWEEKS IN A TWELVE-MONTH PERIOD, COMMENCING  ON  THE
DATE  LEAVE  TAKEN  UNDER THE FMLA COMMENCES, AT THE LEVEL AND UNDER THE
CONDITIONS COVERAGE WOULD HAVE BEEN PROVIDED IF THE EMPLOYEE HAD CONTIN-
UED IN EMPLOYMENT CONTINUOUSLY FOR THE DURATION OF THE LEAVE;  PROVIDED,
HOWEVER,  THAT  NOTHING  INCLUDED  IN THIS SUBDIVISION SHALL PRECLUDE AN
EMPLOYER FROM MAINTAINING AND PAYING FOR COVERAGE UNDER A "GROUP  HEALTH
PLAN" BEYOND TWELVE WORKWEEKS.
  (B)  AN  EMPLOYER  MAY  RECOVER  THE PREMIUM THAT THE EMPLOYER PAID AS
REQUIRED BY THIS SUBDIVISION FOR MAINTAINING COVERAGE FOR  THE  EMPLOYEE
UNDER THE GROUP HEALTH PLAN IF:
  (I)  THE EMPLOYEE FAILS TO RETURN FROM LEAVE AFTER THE PERIOD OF LEAVE
TO WHICH THE EMPLOYEE IS ENTITLED HAS EXPIRED; AND
  (II) THE EMPLOYEE'S FAILURE TO RETURN FROM LEAVE IS FOR A REASON OTHER
THAN THE CONTINUATION, RECURRENCE, OR ONSET OF A SERIOUS  HEALTH  CONDI-
TION  THAT  ENTITLES THE EMPLOYEE TO LEAVE UNDER SUBDIVISION ONE OF THIS
SECTION OR OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE.

A. 9559                             4

  (C) (I) ANY EMPLOYEE TAKING LEAVE PURSUANT TO SUBDIVISION ONE OF  THIS
SECTION  SHALL CONTINUE TO BE ENTITLED TO PARTICIPATE IN EMPLOYEE HEALTH
PLANS FOR ANY PERIOD DURING  WHICH  COVERAGE  IS  NOT  PROVIDED  BY  THE
EMPLOYER  UNDER  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, EMPLOYEE BENEFIT
PLANS,  INCLUDING  LIFE, SHORT-TERM, OR LONG-TERM DISABILITY OR ACCIDENT
INSURANCE, PENSION AND RETIREMENT PLANS, AND  SUPPLEMENTAL  UNEMPLOYMENT
BENEFIT  PLANS TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS APPLY
TO AN UNPAID LEAVE TAKEN FOR ANY PURPOSE OTHER THAN THOSE  DESCRIBED  IN
SUBDIVISION  ONE  OF THIS SECTION. IN THE ABSENCE OF THESE CONDITIONS AN
EMPLOYEE SHALL CONTINUE TO BE ENTITLED TO  PARTICIPATE  IN  THESE  PLANS
AND, IN THE CASE OF HEALTH AND WELFARE EMPLOYEE BENEFIT PLANS, INCLUDING
LIFE,  SHORT-TERM,  OR  LONG-TERM  DISABILITY  OR ACCIDENT INSURANCE, OR
OTHER SIMILAR PLANS, THE EMPLOYER MAY, AT HIS OR HER DISCRETION, REQUIRE
THE EMPLOYEE TO PAY PREMIUMS, AT THE GROUP RATE, DURING  THE  PERIOD  OF
LEAVE  NOT  COVERED BY ANY ACCRUED VACATION LEAVE, OR OTHER ACCRUED TIME
OFF, OR ANY OTHER PAID OR UNPAID TIME OFF NEGOTIATED WITH THE  EMPLOYER,
AS  A  CONDITION OF CONTINUED COVERAGE DURING THE LEAVE PERIOD. HOWEVER,
THE NONPAYMENT OF PREMIUMS BY AN EMPLOYEE SHALL NOT CONSTITUTE  A  BREAK
IN  SERVICE,  FOR  PURPOSES OF LONGEVITY, SENIORITY UNDER ANY COLLECTIVE
BARGAINING AGREEMENT, OR ANY EMPLOYEE BENEFIT PLAN.
  (II) FOR PURPOSES OF PENSION AND RETIREMENT PLANS, AN  EMPLOYER  SHALL
NOT  BE  REQUIRED TO MAKE PLAN PAYMENTS FOR AN EMPLOYEE DURING THE LEAVE
PERIOD, AND THE LEAVE PERIOD SHALL NOT BE REQUIRED  TO  BE  COUNTED  FOR
PURPOSES OF TIME ACCRUED UNDER THE PLAN. HOWEVER, AN EMPLOYEE COVERED BY
A PENSION PLAN MAY CONTINUE TO MAKE CONTRIBUTIONS IN ACCORDANCE WITH THE
TERMS OF THE PLAN DURING THE PERIOD OF THE LEAVE.
  4.  DURING  A FAMILY CARE AND MEDICAL LEAVE PERIOD, THE EMPLOYEE SHALL
RETAIN EMPLOYEE STATUS WITH  THE  EMPLOYER,  AND  THE  LEAVE  SHALL  NOT
CONSTITUTE  A  BREAK  IN  SERVICE,  FOR PURPOSES OF LONGEVITY, SENIORITY
UNDER ANY COLLECTIVE BARGAINING AGREEMENT, OR ANY EMPLOYEE BENEFIT PLAN.
AN EMPLOYEE RETURNING FROM LEAVE SHALL RETURN  WITH  NO  LESS  SENIORITY
THAN  THE EMPLOYEE HAD WHEN THE LEAVE COMMENCED, FOR PURPOSES OF LAYOFF,
RECALL, PROMOTION, JOB ASSIGNMENT, AND SENIORITY-RELATED  BENEFITS  SUCH
AS VACATION.
  5.  (A) IF THE EMPLOYEE'S NEED FOR A LEAVE PURSUANT TO THIS SECTION IS
FORESEEABLE, THE EMPLOYEE SHALL PROVIDE  THE  EMPLOYER  WITH  REASONABLE
ADVANCE NOTICE OF THE NEED FOR THE LEAVE.
  (B) IF THE EMPLOYEE'S NEED FOR LEAVE PURSUANT TO THIS SECTION IS FORE-
SEEABLE  DUE TO A PLANNED MEDICAL TREATMENT OR SUPERVISION, THE EMPLOYEE
SHALL MAKE A REASONABLE EFFORT TO SCHEDULE THE TREATMENT OR  SUPERVISION
TO  AVOID  DISRUPTION  TO THE OPERATIONS OF THE EMPLOYER, SUBJECT TO THE
APPROVAL OF THE HEALTH CARE PROVIDER OF  THE  INDIVIDUAL  REQUIRING  THE
TREATMENT OR SUPERVISION.
  6. (A) AN EMPLOYER MAY REQUIRE THAT AN EMPLOYEE'S REQUEST FOR LEAVE TO
CARE FOR A FAMILY MEMBER WHO HAS A SERIOUS HEALTH CONDITION BE SUPPORTED
BY  A CERTIFICATION ISSUED BY THE HEALTH CARE PROVIDER OF THE INDIVIDUAL
REQUIRING CARE.  SUCH CERTIFICATION SHALL STATE:
  (I) THE DATE ON WHICH THE SERIOUS HEALTH CONDITION COMMENCED;
  (II) THE PROBABLE DURATION OF THE CONDITION;
  (III) AN ESTIMATE OF THE AMOUNT OF TIME THAT THE HEALTH CARE  PROVIDER
BELIEVES  THE  EMPLOYEE  NEEDS  TO CARE FOR THE INDIVIDUAL REQUIRING THE
CARE; AND
  (IV) A STATEMENT  THAT  THE  SERIOUS  HEALTH  CONDITION  WARRANTS  THE
PARTICIPATION  OF A FAMILY MEMBER TO PROVIDE CARE DURING A PERIOD OF THE
TREATMENT OR SUPERVISION OF THE INDIVIDUAL REQUIRING CARE.

A. 9559                             5

  (B) UPON EXPIRATION OF THE TIME ESTIMATED BY THE HEALTH CARE  PROVIDER
IN SUBPARAGRAPH (III) OF PARAGRAPH (A) OF THIS SUBDIVISION, THE EMPLOYER
MAY  REQUIRE  THE EMPLOYEE TO OBTAIN RECERTIFICATION, IN ACCORDANCE WITH
THE PROCEDURE PROVIDED IN SUCH PARAGRAPH (A),  IF  ADDITIONAL  LEAVE  IS
REQUIRED.
  7.  (A)  AN  EMPLOYER MAY REQUIRE THAT AN EMPLOYEE'S REQUEST FOR LEAVE
BECAUSE OF THE EMPLOYEE'S OWN SERIOUS HEALTH CONDITION BE SUPPORTED BY A
CERTIFICATION ISSUED BY HIS OR HER HEALTH CARE  PROVIDER.  SUCH  CERTIF-
ICATION SHALL STATE:
  (I) THE DATE ON WHICH THE SERIOUS HEALTH CONDITION COMMENCED;
  (II) THE PROBABLE DURATION OF THE CONDITION; AND
  (III)  A  STATEMENT  THAT,  DUE  TO  THE SERIOUS HEALTH CONDITION, THE
EMPLOYEE IS UNABLE TO PERFORM THE FUNCTION OF HIS OR HER POSITION.
  (B) THE EMPLOYER MAY  REQUIRE  THAT  THE  EMPLOYEE  OBTAIN  SUBSEQUENT
RECERTIFICATION  REGARDING  THE EMPLOYEE'S SERIOUS HEALTH CONDITION ON A
REASONABLE BASIS, IN ACCORDANCE WITH THE PROCEDURE PROVIDED IN PARAGRAPH
(A) OF THIS SUBDIVISION, IF ADDITIONAL LEAVE IS REQUIRED.
  (C) (I) IN ANY CASE IN WHICH THE EMPLOYER  HAS  REASON  TO  DOUBT  THE
VALIDITY  OF  THE  CERTIFICATION  PROVIDED PURSUANT TO THIS SECTION, THE
EMPLOYER MAY REQUIRE, AT  THE  EMPLOYER'S  EXPENSE,  THAT  THE  EMPLOYEE
OBTAIN  THE  OPINION  OF  A  SECOND  HEALTH CARE PROVIDER, DESIGNATED OR
APPROVED BY THE EMPLOYER, CONCERNING  ANY  INFORMATION  CERTIFIED  UNDER
PARAGRAPH (A) OF THIS SUBDIVISION.
  (II)  THE  HEALTH  CARE PROVIDER DESIGNATED OR APPROVED UNDER SUBPARA-
GRAPH (I) OF THIS PARAGRAPH SHALL NOT BE EMPLOYED ON A REGULAR BASIS  BY
THE EMPLOYER.
  (III)  IN  ANY  CASE IN WHICH THE SECOND OPINION DESCRIBED IN SUBPARA-
GRAPH (I) OF THIS PARAGRAPH DIFFERS FROM THE  OPINION  IN  THE  ORIGINAL
CERTIFICATION, THE EMPLOYER MAY REQUIRE, AT THE EMPLOYER'S EXPENSE, THAT
THE  EMPLOYEE OBTAIN THE OPINION OF A THIRD HEALTH CARE PROVIDER, DESIG-
NATED OR APPROVED JOINTLY BY THE EMPLOYER AND THE  EMPLOYEE,  CONCERNING
THE INFORMATION CERTIFIED UNDER PARAGRAPH (A) OF THIS SUBDIVISION.
  (IV)  THE  OPINION  OF  THE  THIRD HEALTH CARE PROVIDER CONCERNING THE
INFORMATION CERTIFIED UNDER PARAGRAPH (A) OF THIS SUBDIVISION  SHALL  BE
CONSIDERED  TO  BE  FINAL  AND  SHALL BE BINDING ON THE EMPLOYER AND THE
EMPLOYEE.
  (D) AS A CONDITION OF AN EMPLOYEE'S RETURN FROM LEAVE TAKEN BECAUSE OF
THE EMPLOYEE'S OWN SERIOUS HEALTH CONDITION, THE  EMPLOYER  MAY  HAVE  A
UNIFORMLY  APPLIED  PRACTICE  OR  POLICY  THAT  REQUIRES THE EMPLOYEE TO
OBTAIN CERTIFICATION FROM HIS OR  HER  HEALTH  CARE  PROVIDER  THAT  THE
EMPLOYEE IS ABLE TO RESUME WORK.  NOTHING IN THIS PARAGRAPH SHALL SUPER-
SEDE  A VALID COLLECTIVE BARGAINING AGREEMENT THAT GOVERNS THE RETURN TO
WORK OF THAT EMPLOYEE.
  8. IN ANY CASE IN WHICH BOTH PARENTS ENTITLED TO LEAVE UNDER PARAGRAPH
(A) OF SUBDIVISION ONE OF THIS SECTION ARE EMPLOYED BY THE SAME  EMPLOY-
ER, THE EMPLOYER SHALL NOT BE REQUIRED TO GRANT LEAVE IN CONNECTION WITH
THE  BIRTH,  ADOPTION,  OR  FOSTER  CARE OF A CHILD THAT WOULD ALLOW THE
PARENTS FAMILY CARE AND MEDICAL LEAVE  TOTALING  MORE  THAN  THE  AMOUNT
SPECIFIED IN SUCH PARAGRAPH.
  9.  (A)  NOTWITHSTANDING  PARAGRAPH  (A)  OF  SUBDIVISION  ONE OF THIS
SECTION, AN EMPLOYER MAY REFUSE TO REINSTATE AN EMPLOYEE RETURNING  FROM
LEAVE TO THE SAME OR A COMPARABLE POSITION IF:
  (I)  THE EMPLOYEE IS A SALARIED EMPLOYEE WHO IS AMONG THE HIGHEST PAID
TEN PERCENT OF THE EMPLOYER'S EMPLOYEES WHO ARE EMPLOYED  WITHIN  SEVEN-
TY-FIVE MILES OF THE WORKSITE AT WHICH THAT EMPLOYEE IS EMPLOYED;

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  (II)  THE  REFUSAL  IS  NECESSARY  TO PREVENT SUBSTANTIAL AND GRIEVOUS
ECONOMIC INJURY TO THE OPERATIONS OF THE EMPLOYER; AND
  (III) THE EMPLOYER NOTIFIES THE EMPLOYEE OF THE INTENT TO REFUSE REIN-
STATEMENT  AT  THE TIME THE EMPLOYER DETERMINES THE REFUSAL IS NECESSARY
UNDER SUBPARAGRAPH (II) OF THIS PARAGRAPH.
  (B) IN ANY CASE IN WHICH THE LEAVE HAS ALREADY COMMENCED, THE EMPLOYER
SHALL GIVE THE EMPLOYEE A  REASONABLE  OPPORTUNITY  TO  RETURN  TO  WORK
FOLLOWING  THE  NOTICE PRESCRIBED BY SUBPARAGRAPH (III) OF PARAGRAPH (A)
OF THIS SUBDIVISION.
  10. LEAVE TAKEN BY AN EMPLOYEE PURSUANT  TO  THIS  SECTION  SHALL  RUN
CONCURRENTLY WITH LEAVE TAKEN PURSUANT TO THE FMLA, EXCEPT FOR ANY LEAVE
TAKEN UNDER THE FMLA FOR DISABILITY ON ACCOUNT OF PREGNANCY, CHILDBIRTH,
OR RELATED MEDICAL CONDITIONS. THE AGGREGATE AMOUNT OF LEAVE TAKEN UNDER
THIS SECTION OR THE FMLA, OR BOTH, EXCEPT FOR LEAVE TAKEN FOR DISABILITY
ON  ACCOUNT  OF  PREGNANCY,  CHILDBIRTH,  OR RELATED MEDICAL CONDITIONS,
SHALL NOT EXCEED TWELVE WORKWEEKS IN A TWELVE-MONTH PERIOD.
  11. LEAVE PROVIDED FOR PURSUANT TO THIS SECTION MAY BE TAKEN IN ONE OR
MORE PERIODS. THE TWELVE-MONTH PERIOD DURING WHICH TWELVE  WORKWEEKS  OF
LEAVE  MAY  BE  TAKEN UNDER THIS SECTION SHALL RUN CONCURRENTLY WITH THE
TWELVE-MONTH PERIOD UNDER THE FMLA, AND SHALL COMMENCE  THE  DATE  LEAVE
TAKEN UNDER THE FMLA COMMENCES.
  12.  NOTHING  CONTAINED  WITHIN  THIS  SECTION  SHALL  BE CONSTRUED TO
REQUIRE ANY CHANGES IN EXISTING COLLECTIVE BARGAINING AGREEMENTS  DURING
THE LIFE OF THE CONTRACT.
  S  113.  EXERCISE  OF RIGHTS PROTECTED; RETALIATION PROHIBITED. 1.  IT
SHALL BE UNLAWFUL FOR ANY EMPLOYER OR  ANY  OTHER  PERSON  TO  INTERFERE
WITH,  RESTRAIN,  OR  DENY THE USE OF OR THE ATTEMPTED USE OF ANY FAMILY
CARE AND MEDICAL LEAVE REQUIRED BY THIS ARTICLE.
  2. NO EMPLOYER OR  ANY  OTHER  PERSON  SHALL  DISCHARGE,  THREATEN  TO
DISCHARGE,  DEMOTE, SUSPEND, OR IN ANY OTHER MANNER DISCRIMINATE OR TAKE
ADVERSE ACTION AGAINST ANY EMPLOYEE IN RETALIATION  FOR  EXERCISING  ANY
RIGHT  GRANTED  BY THIS ARTICLE.   SUCH RIGHTS SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE USE OF FAMILY CARE AND MEDICAL LEAVE, THE  FILING  OF  A
COMPLAINT  OR  INFORMING ANY PERSON ABOUT ANY VIOLATION OF THIS ARTICLE,
THE COOPERATION WITH THE DEPARTMENT IN THE INVESTIGATION OF ANY  ALLEGED
VIOLATION OF THIS ARTICLE, AND THE INFORMING OF ANY PERSON OF HIS OR HER
RIGHTS PURSUANT TO THIS ARTICLE.
  3.  NO  EMPLOYER  SHALL  CONSIDER OR USE FAMILY CARE AND MEDICAL LEAVE
TAKEN PURSUANT TO THIS ARTICLE AS AN ABSENCE THAT MAY LEAD TO OR  RESULT
IN  THE DISCIPLINE OF, THE DISCHARGE OF, THE DEMOTION OF, THE SUSPENSION
OF OR ANY OTHER ACTION AGAINST ANY EMPLOYEE.
  4. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ANY  PERSON  WHO,  IN
GOOD FAITH, ALLEGES A VIOLATION OF THIS ARTICLE.
  5.  THE TAKING OF ANY ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN NINETY
DAYS OF ANY PERSON FILING A COMPLAINT WITH THE  DEPARTMENT  OR  A  COURT
ALLEGING  A  VIOLATION  OF THE PROVISIONS OF THIS ARTICLE, INFORMING ANY
OTHER PERSON RELATING TO AN ALLEGED VIOLATION  OF  THIS  ARTICLE  BY  AN
EMPLOYER,  COOPERATING  WITH  THE  DEPARTMENT OR ANY OTHER PERSON IN THE
INVESTIGATION OR PROSECUTION OF ANY ALLEGED VIOLATION OF THIS ARTICLE OR
INFORMING ANY PERSON OF THE PROVISIONS OF THIS ARTICLE, SHALL  ESTABLISH
A  REBUTTABLE  PRESUMPTION THAT SUCH ADVERSE ACTION WAS TAKEN IN RETALI-
ATION FOR EXERCISING THE RIGHTS GRANTED PURSUANT TO THIS ARTICLE.
  S 114. ENFORCEMENT. 1. THE DEPARTMENT IS  CHARGED  WITH  THE  DUTY  TO
ENFORCE THE PROVISIONS OF THIS ARTICLE. FURTHERMORE, THE COMMISSIONER IS
AUTHORIZED  AND  DIRECTED TO PROMULGATE ANY RULES AND REGULATIONS NECES-
SARY TO IMPLEMENT THE PROVISIONS OF THIS ARTICLE.

A. 9559                             7

  2. FOR ANY VIOLATION OF THIS  ARTICLE  THE  DEPARTMENT  MAY  ORDER  AN
EMPLOYER  TO  GRANT  REINSTATEMENT,  BACK  PAY, THE PAYMENT FOR ANY PAID
FAMILY CARE AND MEDICAL LEAVE WITHHELD AND/OR THE PAYMENT OF  A  PENALTY
TO  THE  AFFECTED EMPLOYEE.   FURTHERMORE, THE DEPARTMENT SHALL IMPOSE A
CIVIL  PENALTY,  FOR  ANY VIOLATION OF THIS ARTICLE, EQUAL TO TRIPLE THE
MONETARY VALUE OF THE PAID FAMILY CARE AND MEDICAL LEAVE DENIED  OR  TWO
HUNDRED DOLLARS, WHICHEVER SHALL BE GREATER.
  S  115.  WAIVER  BY  COLLECTIVE  BARGAINING. ALL OR ANY PORTION OF THE
PROVISIONS OF THIS ARTICLE MAY BE WAIVED WITH REGARD  TO  ANY  EMPLOYEES
AND  EMPLOYERS  WHO  ARE  SUBJECT  TO  A BONA FIDE COLLECTIVE BARGAINING
AGREEMENT TO THE EXTENT THAT SUCH PROVISIONS  ARE  EXPRESSLY  WAIVED  IN
SUCH AGREEMENT IN CLEAR AND UNAMBIGUOUS TERMS.
  S  116.  MINIMUM  REQUIREMENTS.  THE  PROVISIONS OF THIS ARTICLE SHALL
CONSTITUTE THE MINIMUM REQUIREMENTS OF THE PROVISION OF FAMILY CARE  AND
MEDICAL LEAVE TO EMPLOYEES. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED
TO  PROHIBIT  ANY EMPLOYER FROM GRANTING GREATER FAMILY CARE AND MEDICAL
LEAVE BENEFITS THAN THOSE REQUIRED BY THIS ARTICLE.
  S 117. SEVERABILITY. IF ANY CLAUSE, SENTENCE,  PARAGRAPH,  SECTION  OR
PART  OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURIS-
DICTION TO BE INVALID AND  AFTER  EXHAUSTION  OF  ALL  FURTHER  JUDICIAL
REVIEW, THE JUDGEMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAIN-
DER  THEREOF,  BUT  SHALL  BE  CONFINED IN THIS OPERATION TO THE CLAUSE,
SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ACT  DIRECTLY  INVOLVED  IN
THE CONTROVERSY IN WHICH THE JUDGEMENT SHALL HAVE BEEN RENDERED.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become  a  law;  provided,  however,
that,  effective  immediately,  any  rules  and regulations necessary to
implement the provisions of this act on its effective date  are  author-
ized and directed to be completed on or before such date.