LB290 LB290
2021 2021
LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 290
Introduced by Cavanaugh, M., 6; Blood, 3; Cavanaugh, J., 9; Hansen, M.,
26; Hunt, 8; Lathrop, 12; McDonnell, 5; McKinney, 11;
Morfeld, 46; Pansing Brooks, 28; Wayne, 13; Wishart, 27.
Read first time January 12, 2021
Committee: Business and Labor
1 A BILL FOR AN ACT relating to employment; to amend sections 48-652 and
2 71-7611, Revised Statutes Cumulative Supplement, 2020; to adopt the
3 Paid Family and Medical Leave Insurance Act; to create a fund; to
4 transfer funds; to change provisions relating to experience accounts
5 under the Employment Security Law; to harmonize provisions; to
6 provide severability; and to repeal the original sections.
7 Be it enacted by the people of the State of Nebraska,
-1-
LB290 LB290
2021 2021
1 Section 1. Sections 1 to 20 of this act shall be known and may be
2 cited as the Paid Family and Medical Leave Insurance Act.
3 Sec. 2. For purposes of the Paid Family and Medical Leave Insurance
4 Act:
5 (1) Base period means the first four of the last five completed
6 calendar quarters immediately preceding the first day of a covered
7 individual's benefit year;
8 (2) Benefit year means the one-year period beginning with the first
9 day of the first week with respect to which the covered individual first
10 files a valid claim for family and medical leave benefits, and thereafter
11 the one-year period beginning with the first day of the first week with
12 respect to which the covered individual next files a valid claim for
13 family and medical leave benefits after the termination of his or her
14 last preceding benefit year. For purposes of this subdivision, a week
15 with respect to which a covered individual files a valid claim shall be
16 deemed to be in, within, or during that benefit year which includes the
17 greater part of such week;
18 (3) Commissioner means the Commissioner of Labor;
19 (4) Covered active duty or call to covered active duty status has
20 the same meaning as in 29 C.F.R. 825.126(a)(1) and (2), as such
21 regulation existed on January 1, 2021;
22 (5) Covered employer means an employer that is subject to the
23 Employment Security Law;
24 (6) Covered individual means:
25 (a) An individual who is employed by a covered employer; or
26 (b) A self-employed individual who has elected coverage under the
27 act. Such election shall be made in a form and manner prescribed by the
28 commissioner;
29 (7) Covered servicemember has the same meaning as in 29 U.S.C. 2611
30 and the regulations issued thereunder, as such section and regulations
31 existed on January 1, 2021;
-2-
LB290 LB290
2021 2021
1 (8) Family and medical leave benefits means the benefits provided
2 under section 4 of this act for periods of paid family and medical leave;
3 (9) Family member means and includes:
4 (a) A biological, adopted, or foster child, a stepchild, or a legal
5 ward of a covered individual or the covered individual's spouse or a
6 person to whom the covered individual or the covered individual's spouse
7 stood in loco parentis when such person was a minor child, regardless of
8 the age or dependency status of such child, stepchild, legal ward, or
9 person;
10 (b) A biological, adoptive, or foster parent, a stepparent, or a
11 legal guardian of a covered individual or the covered individual's spouse
12 or a person who stood in loco parentis to the covered individual or the
13 covered individual's spouse when the covered individual or the covered
14 individual's spouse was a minor child;
15 (c) A covered individual's spouse;
16 (d) A grandparent, grandchild, or sibling, whether of a biological,
17 foster, adoptive, or step relationship, of the covered individual or the
18 covered individual's spouse; and
19 (e) One person designated by the covered individual as a family
20 member. Such designation shall be made in a form and manner prescribed by
21 the commissioner;
22 (10) Health care provider means any person licensed under federal or
23 state law to provide medical or emergency services, including, but not
24 limited to, doctors, nurses, emergency room personnel, and certified
25 nurse midwives;
26 (11) Individual average weekly wage means:
27 (a) For a covered individual who has earned wages during each
28 calendar quarter of the base period, the amount of wages paid to the
29 covered individual in the highest calendar quarter of the base period
30 divided by thirteen; or
31 (b) For a covered individual who has not earned wages during each
-3-
LB290 LB290
2021 2021
1 calendar quarter of the base period, the covered individual's average
2 weekly wage during the most recently completed calendar quarter;
3 (12) Military member means a covered individual's family member who
4 is in the armed forces of the United States;
5 (13) Next of kin has the same meaning as in 29 U.S.C. 2611 and the
6 regulations issued thereunder, as such section and regulations existed on
7 January 1, 2021;
8 (14) Paid family and medical leave means leave taken by a covered
9 individual for a qualifying reason described in section 3 of this act for
10 which the covered individual is eligible for family and medical leave
11 benefits;
12 (15) Qualifying exigency leave means leave taken by a covered
13 individual for the following purposes if the covered individual's family
14 member is on covered active duty or call to covered active duty status:
15 (a) Any of the purposes specified in 29 C.F.R. 825.126(b)(3)(i)
16 through (iv), as such regulation existed on January 1, 2021;
17 (b) Any of the purposes specified in 29 C.F.R. 825.126(b)(8)(i)
18 through (iv), as such regulation existed on January 1, 2021;
19 (c) To address any issue that arises from the fact that the military
20 member is notified of an impending call or order to covered active duty
21 seven or fewer calendar days prior to the date of deployment. Leave taken
22 for this purpose can be used for a period of seven calendar days
23 beginning on the date the military member is notified of an impending
24 call or order to covered active duty;
25 (d) To attend any official ceremony, program, or event sponsored by
26 the military that is related to the covered active duty or call to
27 covered active duty status of the military member;
28 (e) To attend family support or assistance programs and
29 informational briefings sponsored or promoted by the military, military
30 service organizations, or the American Red Cross that are related to the
31 covered active duty or call to covered active duty status of the military
-4-
LB290 LB290
2021 2021
1 member;
2 (f) To make or update financial or legal arrangements to address the
3 military member's absence while on covered active duty or call to covered
4 active duty status, such as preparing and executing financial and health
5 care powers of attorney, transferring bank account signature authority,
6 obtaining military identification cards, or preparing or updating a will
7 or living trust;
8 (g) To act as the military member's representative before a federal,
9 state, or local agency for the purposes of obtaining, arranging, or
10 appealing military service benefits while the military member is on
11 covered active duty or call to covered active duty status, and for a
12 period of ninety days following the termination of the military member's
13 covered active duty status;
14 (h) To attend counseling provided by someone other than a health
15 care provider for the covered individual, for the military member, for
16 the biological, adopted, or foster child, the stepchild, or the legal
17 ward of the military member, for a child of the military member's spouse,
18 or for a child to whom the military member stands in loco parentis, if
19 the need for counseling arises from the covered active duty or call to
20 covered active duty status of the military member;
21 (i) To spend time with the military member who is on short-term,
22 temporary, rest and recuperation leave during the period of deployment.
23 Leave taken for this purpose can be used for a period of fifteen calendar
24 days beginning on the date the military member commences each instance of
25 rest and recuperation leave;
26 (j) To attend arrival ceremonies, reintegration briefings and
27 events, and any other official ceremony or program sponsored by the
28 military during a period of ninety days following the termination of the
29 military member's covered active duty status;
30 (k) To address issues that arise from the death of the military
31 member while on covered active duty status, such as meeting and
-5-
LB290 LB290
2021 2021
1 recovering the body of the military member, making funeral arrangements,
2 and attending funeral services; and
3 (l) To address other events which arise out of the military member's
4 covered active duty or call to covered active duty status if the covered
5 employer and covered individual agree that such leave qualifies as an
6 exigency and agree to both the timing and duration of such leave;
7 (16) Retaliatory personnel action means denial of any right
8 guaranteed under the Paid Family and Medical Leave Insurance Act,
9 including, but not limited to:
10 (a) Any threat, discharge, suspension, demotion, or reduction of
11 hours of a covered individual or any other adverse action against a
12 covered individual for the exercise of any right guaranteed in the act;
13 and
14 (b) Interference with or punishment for participating in or
15 assisting with an investigation, proceeding, or hearing under the act;
16 (17) Serious health condition has the same meaning as in 29 U.S.C.
17 2611 and the regulations issued thereunder, as such section and
18 regulations existed on January 1, 2021;
19 (18) State average weekly wage means the state average weekly wage
20 as annually determined under section 48-121.02; and
21 (19) Week means a period of seven consecutive days ending Saturday
22 at midnight.
23 Sec. 3. (1) Beginning January 1, 2023, a covered individual may
24 take paid family and medical leave for the following qualifying reasons:
25 (a) To care for a new child of the covered individual during the
26 first year after the birth, adoption, or placement through foster care of
27 that child;
28 (b) To care for a family member of the covered individual who has a
29 serious health condition;
30 (c) To care for a covered servicemember if the covered individual is
31 a family member or the next of kin of the covered servicemember;
-6-
LB290 LB290
2021 2021
1 (d) For qualifying exigency leave; or
2 (e) Because the covered individual has a serious health condition,
3 including pregnancy, that makes the covered individual unable to perform
4 the functions of the position held by such covered individual.
5 (2) The maximum amount of paid family and medical leave that a
6 covered individual may take shall be twelve weeks or, for leave taken on
7 an intermittent basis, sixty work days during any benefit year.
8 Sec. 4. (1) Subject to subsection (2) of this section, the family
9 and medical leave benefits to be paid to the covered individual for any
10 week of paid family and medical leave shall be:
11 (a) Ninety percent of the portion of the individual average weekly
12 wage that is at or below fifty percent of the state average weekly wage;
13 and
14 (b) Fifty percent of the portion of the individual average weekly
15 wage that is above fifty percent of the state average weekly wage.
16 (2) The amount of family and medical leave benefits to be paid to a
17 covered individual in any week shall not exceed sixty-six percent of the
18 state average weekly wage.
19 (3) Family and medical leave benefits are not payable for the first
20 week in any benefit year that a covered individual takes paid family and
21 medical leave. Such week shall be known as the waiting period. If the
22 covered individual takes ten or more days of paid family and medical
23 leave in such benefit year, the covered individual shall be paid for the
24 waiting period. The waiting period shall occur only once in any benefit
25 year. This subsection shall not apply to paid family and medical leave
26 taken for the reasons stated in subdivisions (15)(c) and (15)(i) of
27 section 2 of this act or for the reason stated in subdivision (1)(a) of
28 section 3 of this act.
29 (4) Family and medical leave benefits are not payable for less than
30 one workday of paid family and medical leave taken in any one workweek.
31 (5) The first payment of family and medical leave benefits must be
-7-
LB290 LB290
2021 2021
1 made to the covered individual within three weeks after the initial claim
2 is filed under section 5 of this act, and subsequent payments of such
3 benefits must be made every week thereafter for as long as the covered
4 individual is eligible. Family and medical leave benefits shall be paid
5 in the manner prescribed by the commissioner, which may include
6 electronic payments.
7 (6) For purposes of the calculations required under this section,
8 only wages earned in employment as defined in section 48-604 shall be
9 considered.
10 (7) A covered individual shall not receive family and medical leave
11 benefits at the same time that he or she is receiving workers'
12 compensation benefits for total disability or benefits under the
13 Employment Security Law.
14 Sec. 5. (1) To receive family and medical leave benefits, a covered
15 individual shall file an initial claim for such benefits with the
16 commissioner on a form prescribed by the commissioner. The claim shall
17 include:
18 (a) The name and address of the covered individual;
19 (b) The reason for taking the paid family and medical leave;
20 (c) A schedule showing the dates during which the covered individual
21 intends to take paid family and medical leave, to the extent such dates
22 are known;
23 (d) Such wage information as the commissioner may require to
24 determine the amount of family and medical leave benefits;
25 (e) Such documentation as the commissioner may require from a health
26 care provider for proof of a serious health condition;
27 (f) The name and address of each covered employer that employs the
28 covered individual; and
29 (g) Such other information as required by the commissioner to
30 calculate and determine eligibility for family and medical leave
31 benefits.
-8-
LB290 LB290
2021 2021
1 (2) After an initial claim is filed, the commissioner shall send