Florida Senate - 2021 SB 1596



By Senator Cruz





18-00297A-21 20211596__
1 A bill to be entitled
2 An act relating to employment practices for family and
3 medical leave; creating ch. 444, F.S., entitled the
4 “Florida Family and Medical Leave Act”; providing a
5 short title; providing legislative findings and
6 intent; defining terms; requiring an employer to allow
7 certain employees to take family and medical leave to
8 bond with a minor child upon the child’s birth,
9 adoption, or foster care placement; requiring an
10 employee to take certain actions in order to receive
11 family and medical leave; prohibiting an employer from
12 taking adverse action against an employee who requests
13 or obtains family and medical leave; specifying
14 limitations and duties related to an employer’s
15 administration of family and medical leave; requiring
16 that family and medical leave be taken concurrently
17 with any leave taken under federal family and medical
18 leave law; requiring an employer to provide notice to
19 employees of certain rights relating to family and
20 medical leave; prescribing notice requirements;
21 requiring the Department of Economic Opportunity to
22 create a model notice that specifies an employee’s
23 rights related to family and medical leave and family
24 and medical leave insurance benefits; specifying
25 circumstances under which an employer is deemed in
26 compliance with notice requirements; providing a civil
27 penalty for an employer’s failure to comply with the
28 notice requirements; requiring the executive director
29 of the department to conduct an investigation upon
30 receiving a written complaint from an employee;
31 establishing rebuttable presumptions that an employer
32 has violated certain provisions of ch. 444, F.S.,
33 under specified circumstances; authorizing the
34 executive director to take certain actions in the
35 event of specified violations; authorizing an employee
36 to file a civil action against an employer for a
37 violation; providing a timeframe for filing such
38 action; authorizing the award of specified
39 compensation, damages, and fees; providing a civil
40 penalty; prohibiting an employee from taking certain
41 actions in bad faith; providing a criminal penalty;
42 entitling an employee to an intermittent or reduced
43 leave schedule if certain conditions are met;
44 requiring the department to establish a family and
45 medical leave insurance benefits program by a
46 specified date; specifying duties of the department
47 related to the program; providing that certain
48 information is confidential; providing exceptions;
49 providing for the amount and duration of family and
50 medical leave insurance benefits that are payable
51 under the program; requiring the department to
52 establish a system for appealing a denial of family
53 and medical leave insurance benefits; requiring the
54 department to take action to ensure the
55 confidentiality of certain information on appeal;
56 authorizing an aggrieved party to file a civil action
57 for a denial of family and medical leave insurance
58 benefits; specifying when a covered individual is
59 disqualified from family and medical leave insurance
60 benefits; providing liability for the payment of
61 benefits to the department under certain
62 circumstances; requiring the Department of Financial
63 Services to collect payroll contributions beginning on
64 a specified date; providing requirements relating to
65 such contributions; authorizing a self-employed person
66 to elect coverage for family and medical leave
67 insurance benefits; providing when a self-employed
68 person may withdraw from coverage; requiring the
69 Department of Economic Opportunity to provide certain
70 notice if the Internal Revenue Service determines
71 family and medical leave insurance benefits are
72 subject to federal income tax; requiring the
73 department to submit an annual report to the
74 Legislature containing specified information;
75 requiring the department to conduct a public education
76 campaign relating to family and medical leave and
77 insurance benefits; authorizing the department to
78 adopt rules; providing construction; amending s.
79 760.10, F.S.; revising the Florida Civil Rights Act of
80 1992 to prohibit specified employment practices on the
81 basis of pregnancy, childbirth, or a medical condition
82 related to pregnancy or childbirth; providing
83 construction; reenacting and amending s. 760.11(1),
84 F.S., relating to administrative and civil remedies
85 for violations of the Florida Civil Rights Act of
86 1992; conforming a cross-reference; providing an
87 effective date.
88
89 Be It Enacted by the Legislature of the State of Florida:
90
91 Section 1. Chapter 444, Florida Statutes, consisting of
92 sections 444.001-444.019, is created to read:
93 CHAPTER 444
94 THE FLORIDA FAMILY AND MEDICAL LEAVE ACT
95 444.001 Short title.—This chapter may be cited as the
96 “Florida Family and Medical Leave Act.”
97 444.002 Legislative findings and intent.—The Legislature
98 finds that it is in the public interest to provide paid family
99 and medical leave to employees for the birth, adoption, or
100 foster care placement of a new child. The need for paid family
101 and medical leave has increased as the participation of both
102 parents in the workforce has increased and the number of single
103 parents has grown. Despite knowing the importance of time spent
104 bonding with a new child, the majority of employees in this
105 state are unable to take family and medical leave because they
106 are unable to afford leave without pay. When an employee does
107 not receive income during a leave of absence, his or her family
108 suffers as a result of the employee’s loss of income, increasing
109 demand on the state’s reemployment assistance program and
110 dependence on the state’s welfare system. Therefore, in an
111 effort to assist employees in reconciling the demands of work
112 and family, the Legislature intends to require employers to
113 allow employees to take paid family and medical leave to bond
114 with their minor child during the first 12 months after the
115 birth, adoption, or foster care placement of a new child.
116 444.003 Definitions.—As used in this chapter, the term:
117 (1) “Adverse action” includes:
118 (a) Discharge.
119 (b) Demotion.
120 (c) Suspension.
121 (d) Reduction of hours.
122 (e) Threat of discharge, demotion, suspension, or reduction
123 of hours.
124 (f) Any other retaliatory action that results in a change
125 in the terms or conditions of employment which would dissuade a
126 reasonable employee from exercising a right under this chapter.
127 (2) “Child” means a biological, adopted, or foster son or
128 daughter or a stepson or stepdaughter of an employee. The term
129 includes a legal ward of an employee and a person to whom the
130 employee stands in loco parentis.
131 (3) “Covered individual” means a person who:
132 (a) Meets the qualifying requirements set forth in s.
133 443.111(2) or, if a person’s employment does not generate income
134 measured for purposes of reemployment assistance benefits,
135 equivalent eligibility criteria determined by the department;
136 (b) Is self-employed, elects coverage, and meets the
137 requirements of s. 444.013;
138 (c) Meets the administrative requirements in this chapter
139 and established by the department; or
140 (d) Submits an application for insurance benefits.
141 (4) “Department” means the Department of Economic
142 Opportunity.
143 (5) “Employee” means a person who performs services for
144 hire for an employer. The term includes all individuals employed
145 at any site owned or operated by an employer. The term does not
146 include an independent contractor.
147 (6) “Employer” means a person employing one or more
148 employees for each working day in each of 20 or more calendar
149 weeks in the current or preceding calendar year, and any
150 representative of such person.
151 (7) “Executive director” means the executive director of
152 the Department of Economic Opportunity.
153 (8) “Family and medical leave” means a paid leave of
154 absence from employment given to an employee because of the
155 birth, adoption, or foster care placement of a new child.
156 (9) “Family and medical leave insurance benefits” or
157 “insurance benefits” means the benefits provided under this
158 chapter.
159 (10) “Health care provider” means a hospital or ambulatory
160 surgical center as defined and licensed under chapter 395; a
161 birth center licensed under chapter 383; or a person licensed
162 under chapter 458, chapter 459, chapter 460, chapter 461,
163 chapter 462, chapter 463, part I of chapter 464, chapter 466,
164 chapter 467, part XIV of chapter 468, or chapter 486.
165 444.004 Eligibility for family and medical leave.—
166 (1) Beginning July 1, 2021, family and medical leave is
167 available to an employee who needs paid leave to bond with his
168 or her child during the first 12 months after the birth of the
169 child or the placement of the child with the employee through
170 the foster care system or by adoption.
171 (2) The family and medical leave must be without diminution
172 of any privilege, benefit, or right arising out of the person’s
173 employment.
174 (3) In order to receive family and medical leave, an
175 employee must:
176 (a) Notify his or her employer at least 30 days before the
177 first day of leave or as soon as practicable if the need for
178 leave is not foreseeable or it is otherwise not possible for the
179 employee to provide 30 days’ notice.
180 (b) Notify the employer of the anticipated duration of the
181 leave.
182 (4) An employer may not take adverse action against an
183 employee for requesting or obtaining family and medical leave
184 authorized under this section.
185 (5) An employer shall retain a record of family and medical
186 leave taken by an employee for at least 3 years. After giving
187 the employer notice and determining a mutually agreeable time
188 for inspection, the executive director may inspect the record
189 for the purpose of determining the employer’s compliance with
190 this section. If an employer fails to retain a record as
191 required under this subsection or to allow the executive
192 director to inspect such records, the executive director may
193 take action under s. 444.006(3).
194 (6) Family and medical leave taken under this section must
195 be taken concurrently with leave taken under the Family Medical
196 Leave Act.
197 (7) An employer shall maintain and pay for coverage for a
198 group health plan as defined in s. 5000(b)(1) of the Internal
199 Revenue Code for an eligible employee who takes family and
200 medical leave under this section at the level and under the
201 conditions that coverage would have been provided if the
202 employee had continuously worked for the duration of the leave.
203 (8) An employer must return an employee to the same
204 position after the period of leave to which the employee is
205 entitled has expired. If the same position is no longer
206 available, an employer must offer the employee a position that
207 is comparable in terms of pay, location, job content, and
208 advancement opportunities.
209 (9) An employer may not otherwise interfere with, restrain,
210 or deny the exercise of, or the attempt to exercise, any right
211 provided under this chapter.
212 444.005 Notice requirements.—
213 (1) An employer shall notify his or her employees that they
214 are entitled to family and medical leave and, upon
215 implementation of the family and medical leave insurance
216 benefits program, family and medical leave insurance benefits at
217 the time the employee is hired and annually thereafter.
218 (2) The notice must include all of the following:
219 (a) The purposes for which the employer is required to
220 allow an employee to take family and medical leave.
221 (b) A statement regarding the prohibition of the employer
222 taking adverse action against an employee who exercises a right
223 under this chapter.
224 (c) Once implemented, information regarding the family and
225 medical leave insurance benefits program and how an employee may
226 apply for those benefits.
227 (d) Information regarding the right of an employee to
228 report an alleged violation of this chapter by the employer to
229 the executive director or to bring a civil action under s.
230 444.006.
231 (3) The department shall create and make available to
232 employers a model notice that employers may use to comply with
233 subsection (1). The model notice must be printed in English,
234 Spanish, Haitian Creole, and any other language the executive
235 director determines is necessary to notify employees of the
236 rights under this chapter.
237 (4) An employer is deemed to be in compliance with
238 subsection (1) by:
239 (a) Displaying the notice in a conspicuous and accessible
240 area at the site where employees work;
241 (b) Including the notice in an employee handbook or other
242 written guide for employees concerning employee benefits or
243 leave provided by the employer; or
244 (c) Providing the notice to each employee at the time of
245 initial hiring.
246 (5) In lieu of posting the notice, an employer may
247 distribute the notice to employees by electronic means.
248 (6) An employer who violates this section is subject to a
249 civil penalty of not more than $500 for the first violation and
250 not more than $1,000 for each subsequent violation.
251 444.006 Violations of chapter; civil action; penalties.—
252 (1) Upon receiving a written complaint from an employee,
253 the executive director shall conduct an investigation to
254 determine whether the employer has violated this chapter.
255 (2)(a) There is a rebuttable presumption that an employer
256 has violated this chapter if the employer takes adverse action
257 against an employee within 90 days after the employee:
258 1. Files a complaint with the executive director alleging a
259 violation of this chapter or files a civil action under this
260 section;
261 2. Informs a person about an alleged violation of this
262 chapter by his or her employer;
263 3. Cooperates with the executive director or another person
264 in the investigation or prosecution of an alleged violation of
265 this chapter by his or her employer;
266 4. Opposes a policy or practice of his or her employer or
267 an act committed by the employer which is prohibited under this
268 chapter; or
269 5. Takes or requests family and medical leave under this
270 chapter.
271 (b) The rebuttable presumption may be overcome by clear and
272 convincing evidence.
273 (3) If the executive director determines that a violation
274 of this chapter has occurred, the executive director may:
275 (a) With the written consent of the employee, attempt to
276 informally resolve any pertinent issue through mediation;
277 (b) With the written consent of the employee, request that
278 the Attorney General file a civil action on behalf of the
279 employee in accordance with this section; or
280 (c) File a civil action on behalf of an employee in the
281 county in which the violation occurred.
282 (4) An employee may file a civil action in a court of
283 competent jurisdiction against his or her employer for a
284 violation of this chapter regardless of whether the employee has
285 first filed a complaint with the executive director.
286 (5) A civil action under subsection (3) or subsection (4)
287 must be filed within 3 years after the occurrence of the act
288 upon which the action is based.
289