Assembly Bill A3639

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

                                  3639

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2013
                               ___________

Introduced by M. of A. BOYLAND, CASTRO, WEPRIN -- read once and referred
  to the Committee 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07492-01-3
              

A. 3639                             2

OF FACTORS INCLUDING, BUT NOT LIMITED TO, COMMON OWNERSHIP  OF  REAL  OR
PERSONAL  PROPERTY,  COMMON  HOUSEHOLDING,  CHILDREN IN COMMON, SIGNS OF
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.

A. 3639                             3

  11.  "SERIOUS  HEALTH CONDITION" MEANS AN ILLNESS, INJURY, IMPAIRMENT,
OR PHYSICAL OR MENTAL CONDITION THAT:
  (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-

A. 3639                             4

TION THAT ENTITLES THE EMPLOYEE TO LEAVE UNDER SUBDIVISION ONE  OF  THIS
SECTION OR OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE.
  (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

A. 3639                             5

  (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.
  (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:

A. 3639                             6

  (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;
  (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.

A. 3639                             7

  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.
  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.