GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	1 

HOUSE BILL 53*

Short Title:  Family and Medical Leave Act.	(Public)
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Sponsors: Representatives Kennedy; Barnes, D. Brown, Colton, Cummings, Cunningham, Easterling, Fitch, Gist, Gottovi, Green, Hackney, Hensley, Holt, Judy Hunt, H. Hunter, Jarrell, Jeffus, McAllister, Michaux, Oldham, Stamey, Wainwright, and Wright.
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Referred to:  Business and Labor.
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February 4, 1993

A BILL TO BE ENTITLED
AN ACT TO ENTITLE EMPLOYEES TO FAMILY AND MEDICAL LEAVE.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 95 of the General Statutes is amended by adding a new Article to read:
"ARTICLE 23.
"Family and Medical Leave Act.
"§ 95-270.  Purpose.
The purpose of this act is to promote the stability and economic security of North Carolina families and individuals by ensuring that leave from work is available for compelling family reasons and for eligible medical reasons, while accommodating the legitimate interests of employers.
"§ 95-271.  Definitions.
The following definitions apply in this Article:
(1)	Child.  A biological or adopted daughter or son who is either (i) under 18 years old, or (ii) 18 years old or older and incapable of self-care because of a mental or physical disability.
(2)	Commissioner.  The Commissioner of Labor or the Commissioner's authorized representative.
(3)	Employee.  Any individual who is employed by an employer, has been employed by the employer for at least 12 months, and was employed by the employer for at least 1,250 hours of service during the previous 12-month period.  The term does not include an employee who is employed at a worksite at which the employer employs less than 50 employees if the total number of employees employed by the employer within 75 miles of that worksite is less than 50.
(4)	Employer.  Any individual, firm, partnership, corporation, organization, or governmental agency that (i) employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current calendar year, or (ii) employed 50 or more employees for each working day during each of 20 or more calendar workweeks in the preceding calendar year.  The term includes any person who acts directly or indirectly in the interest of an employer in relation to an employee and any successor in interest of an employer.
(5)	Employment benefits.  All benefits, other than salary or wages, that the employer provides or makes available to the employee, and to which the employee is entitled.  The term includes group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether the benefits are provided by a practice or written policy of an employer or by an employee benefit plan.
(6)	Health care provider.  A licensed physician who is authorized to practice medicine or surgery by the state in which the physician practices, or any other individual whom the Commissioner determines to be capable of providing health care services for the purposes of this Article.
(7)	Parent.  The term includes a biological or adoptive parent or an individual who stood in loco parentis to an employee when the employee was a child.
(8)	Reduced work schedule.  Leave that reduces the usual number of hours per workweek, or hours per workday, of an employee.
(9)	Serious health condition.  An illness, injury, impairment, or physical or mental condition that involves either (i) inpatient care in a hospital, hospice, or residential medical care facility, or (ii) continuing treatment by a health care provider.
"§ 95-272.  General leave requirements.
(a)	Entitlement to leave. – Subject to G.S. 95-272, an employee is entitled to a total of 12 workweeks of leave during any 12-month period for the following reasons:
(1)	For the employee to care for the employee's child after the child's birth, if the leave is taken within 12 months after the birth;
(2)	For the employee to care for a child placed with the employee for adoption, if the leave is taken within 12 months of the date of placement;
(3)	For the employee to care for the employee's child, spouse, or parent, where that child, spouse, or parent has a serious health condition; or
(4)	Because the employee has a serious health condition that makes the employee unable to perform the functions of the employee's position.
(b)	Intermittent leave. – The employee may not take leave under subdivision (a)(1) or (a)(2) intermittently unless the employee and employer agree otherwise.  The employee may take intermittent leave under subdivision (a)(3) or (a)(4) where medically necessary.  If an employee seeks intermittent leave under subdivision (a)(3) or (a)(4) that is foreseeable, based on planned medical treatment, the employer may require the employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that (i) has equivalent pay and benefits, and (ii) better accommodates recurring periods of leave than the employee's regular employment position.
(c)	Reduced work schedule. – On agreement between the employer and the employee, the employee may take leave under subsection (a) on a reduced work schedule.  That reduced work schedule shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a).
(d)	Unpaid leave. – Family leave may consist of unpaid leave, with the following provisos:
(1)	If an employer provides paid family leave for fewer than 12 workweeks, the additional weeks of leave added to attain the 12 workweek total may be unpaid.
(2)	An employee or employer may elect to substitute any of the employee's accrued paid vacation leave, personal leave, or family leave for leave provided under subdivision (a)(1), (a)(2), or (a)(3) for any part of the 12-week period.
(3)	An employee or employer may elect to substitute any of the employee's accrued paid vacation leave, personal leave, or medical or sick leave for leave provided under subdivision (a)(3) or (a)(4) for any part of the 12-week period.  However, nothing in this Article requires an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide that leave.
(e)	Foreseeable leave:  birth or adoption. – Where the necessity for family leave under subdivision (a)(1) or (a)(2) is foreseeable based on an expected birth or adoption, the employee shall give the employer no less than 30 days' notice of the intention to take leave, subject to the actual date of the birth or adoption.  If the date of the birth or adoption requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(f)	Foreseeable leave:  planned medical treatment. – Where the necessity for leave under subdivision (a)(3) or (a)(4) is foreseeable based on planned medical treatment, the employee shall:
(1)	Make a reasonable effort to schedule the treatment so as not unduly to disrupt the employer's operations, subject to the approval of the employee's health care provider or the health care provider of the employee's child, spouse, or parent; and
(2)	Provide the employer with no less than 30 days' notice of the intention to take leave, subject to the actual date of the treatment.
(g)	Spouses employed by same employer. – Where a husband and wife are both entitled to take leave and are employed by the same employer, the employer may limit the aggregate number of workweeks of leave to which both may be entitled to 12 workweeks during any 12-month period, if the leave is taken under subdivision (a)(1) or (a)(2) or to care for a sick parent under subdivision (a)(3).
"§ 95-273.  Certification.
(a)	In general. – An employer may require that a claim for leave under G.S. 95-271(a)(3) or (a)(4) be supported by a certification issued by the health care provider of the employee or of the employee's child, spouse, or parent, as appropriate.  The employee shall provide, in a timely manner, a copy of the certification to the employer.
(b)	Sufficiency of certification. – Certification provided under subsection (a) is sufficient if it states:
(1)	The date on which the serious health condition began;
(2)	The probable duration of the condition;
(3)	The appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4)	Where the leave is under G.S. 95-271(a)(3), a statement that the employee is needed to care for the child, spouse, or parent, and an estimate of the amount of time that the employee is needed to provide care;
(5)	Where the leave is under G.S. 95-271(a)(4), a statement that the employee is unable to perform the functions of the employee's position; and
(6)	Where certification is necessary for intermittent leave for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment.
(c)	Second opinion. – Where the employer has reason to doubt the validity of the certification provided under subsection (a), the employer may require the employee to get, at the employer's expense, the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b).  The second health care provider shall not be a person employed on a regular basis by the employer.
(d)	Third opinion. – Where the second opinion described in subsection (c) differs from the opinion in the original certification provided under subsection (a), the employer may require the employee to get, at the employer's expense, the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (b).  The third opinion is final and is binding on the employer and the employee.
(e)	Recertification. – The employer may require that the employee get subsequent recertifications on a reasonable basis, at the employer's expense.
"§ 95-274.  Employment and benefits protection.
(a)	Entitlement to restoration. – An employee who takes leave under this Article is entitled, on return from leave:
(1)	To be restored by the employer to the employment position held by the employee when the leave began; or
(2)	To be restored to an equivalent employment position with equivalent employment benefits, pay, and other terms and conditions of employment.
(b)	No loss of benefits. – The taking of leave under this Article shall not result in the loss of any employment benefit accrued before the date on which the leave began.  However, nothing in this section shall be construed to entitle any restored employee to (i) the accrual of any seniority or employment benefits during any period of leave; or (ii) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(c)	Employer's policy. – As a condition of restoration under subsection (a), the employer may require the employee's adherence to a uniformly applied practice or policy that requires each employee to receive certification from the employee's health care provider that the employee is able to resume work.  However, nothing in this subsection supercedes a valid local law or a collective bargaining agreement that governs the return to work of employees taking leave under G.S. 95-271(a)(4).
(d)	Reporting during leave. – Nothing in this section shall be deemed to prohibit an employer from requiring an employee on leave under this Article to report at reasonable intervals to the employer on the employee's status and intention to return to work.
(e)	Exemption of certain employees. – An employer may deny restoration under subsection (a) to an employee if:
(1)	The employee is a salaried employee who is among the highest paid ten percent (10%) of the employees employed by the employer within 75 miles of the facility at which the employee is employed;
(2)	Denial of restoration is necessary to prevent substantial and grievous economic injury to the employer's operations;
(3)	The employer notifies the employee of the employer's intent to deny restoration on the basis in subdivision (2) when the employer determines that the injury would occur; and
(4)	In any case in which the leave has begun, the employee elects not to return to employment after receiving the notice.
"§ 95-275.  Maintenance of health benefits.
(a)	Employer's duty. – Except as provided in subsection (b), during any period that an employee takes leave under this Article, the employer shall maintain coverage for the employee under any group health plan for the duration of leave at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously from the date the employee began the leave until the date the employee is restored under G.S. 95-273(a).
(b)	Recovery of premiums. – The employer may recover the premium that the employer paid for maintaining the employee's coverage under subsection (a) if the employee fails to return from leave after the period of leave to which the employee is entitled has expired for a reason other than:
(1)	The continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under G.S. 95-271(a)(3) or (a)(4); or
(2)	Other circumstances beyond the employee's control.
(c)	Certification. – An employer may require that a claim that an employee is unable to return to work because of the continuation, recurrence, or onset of the serious health condition described in subdivision (b)(1) be supported by:
(1)	A certification issued by the employee's health care provider, in the case of an employee unable to return to work because of a condition specified in G.S. 95-271(a)(4); or
(2)	A certification issued by the health care provider of the child, spouse, or parent of the employee, in the case of an employee unable to return to work because of a condition specified in G.S. 95-271(a)(3).
The employee shall provide, in a timely manner, a copy of the certification to the employer.
(d)	Sufficiency of certification. – The certification described in subdivision (c)(1) is sufficient if it states that a serious health condition prevented the employee from being able to perform the functions of the employee's position on the date that the employee's leave expired.  The certification described in subdivision (c)(2) is sufficient if it states that the employee is needed to care for the employee's child, spouse, or parent who has a serious health condition on the date that the employee's leave expired.
"§ 95-276.  Discrimination prohibited.
(a)	Actions prohibited. – No employer shall interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this Article.  Except as provided in G.S. 95-271, no employer shall discharge, demote, transfer, reassign, deny employment, or in any other similar manner discriminate against any individual for opposing any practice made unlawful by this Article or for exercising any right made lawful by this Article.
(b)	Protected activity. – No person shall discharge or in any other manner discriminate against any individual because the individual does any of the following:
(1)	Files any civil action, or institutes or causes to be instituted any civil proceeding, under or related to this Article;
(2)	Gives, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Article; or
(3)	Testifies, or is about to testify, in any inquiry or proceeding relating to any right provided under this Article.
"§ 95-277.  Civil action; action by Commissioner; remedies.
(a)	Action by employee. – One or more employees may bring a civil action in the superior court of the county where the violation occurred, where one or more complainants reside, or where the respondent resides or has its principal place of business.  The employee may bring the action on behalf of other employees similarly situated.
(b)	Action by Commissioner. – At the employee's request, the Commissioner may bring a civil action in the superior court of the county where the violation occurred, where one or more complainants reside, or where the respondent resides or has its principal place of business.  Any sums that the Commissioner recovers on behalf of the employee shall be held in a special deposit account and shall be paid promptly and directly to the affected employee.  When the Commissioner conducts such an action on behalf of, or at the request of, the employee, the employee retains the right to approve or reject proposed settlements.  Before initiating any action under this section, the Commissioner shall exhaust all administrative remedies, including giving the employer notice of the pending action and the opportunity to be heard on the matters at issue.
(c)	Penalty. – Where the court finds that an employer violated G.S. 95-275, the court shall award to the employee the amount of one hundred dollars ($100.00) per day for each working day that:
(1)	The employee is denied the employee's rights under G.S. 95-275(a), or
(2)	Follows the date on which the employee is discharged or otherwise discriminated against as described in G.S. 95-275(b); and
the employer is liable for interest at the legal rate set forth in G.S. 24-1, from the date each amount first became due.
(d)	Types of relief. – The employee or the Commissioner may seek and the court may award any or all of the following types of relief:
(1)	An injunction to enjoin continued violation of this Article.
(2)	Reinstatement of the employee to the same position held before the violation of this Article.
(3)	Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action or discrimination.
(4)	Any other equitable relief that the court deems appropriate, including, without limitation, employment, reinstatement, transfer, reassignment, and promotion.
(e)	Liquidated damages. – In addition to the amounts awarded under subsection (c), the court shall award liquidated damages in an amount equal to the amount found to be due as provided in subsection (c).  If the employer shows to the court's satisfaction that the act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Article, the court may, in its discretion, award no liquidated damages or may award any amount of liquidated damages not exceeding the amount found due as provided in subsection (d).
(f)	Costs. – The court shall award to the plaintiff and assess against the defendant the reasonable costs and expenses, including attorneys' fees, of the plaintiff in bringing an action under this section.  If the court determines that the plaintiff's action is frivolous, it may award to the defendant and assess against the plaintiff the reasonable costs and expenses, including attorneys' fees, of the defendant in defending the action under this section.
(g)	Default judgment. – In an action brought by the Commissioner in which a default judgment is entered, the clerk shall order the defendant to pay attorneys' fees of three hundred dollars ($300.00).
(h)	Jury trial. – In any action under this section which includes a claim under subsection (b), the plaintiff has the right to trial by jury.
(i)	Statute of limitations. – Actions under this section must be brought within two years following the date of the last event constituting the alleged violation for which the action is brought.  Where an action is brought for a willful violation of G.S. 95-275, the action may be brought within three years of the date of the last event constituting the alleged violation for which the action is brought.
"§ 95-278.  Notice.
(a)	Employer's duty to post. – Each employer shall post and keep posted, in conspicuous places on the employer's premises where notices to employees and applications for employment are customarily posted, a notice, to be prepared or approved by the Commissioner, setting forth excerpts from, or summaries of, the pertinent provisions of this act and information pertaining to rights and remedies.
(b)	Penalty. – Any employer that willfully violates this section shall be assessed a civil money penalty not to exceed one hundred dollars ($100.00) for each separate offense.  For purposes of this subsection, each 72-hour period in violation shall constitute a separate offense.
"§ 95-279.  Regulations.
No later than 60 days after the date of ratification of this act, the Commissioner shall prescribe regulations and advisory guidelines that are necessary to carry out and promote full compliance with this act.  The Commissioner shall thereafter have the authority to augment, modify, and revise regulations and guidelines that are necessary to carry out and promote full compliance with the provisions of this act.
"§ 95-280.  Effect of Article on other rights.
Nothing in this Article shall be deemed to diminish the rights or remedies of any employee under any collective bargaining agreement, employment contract, other statutory rights or remedies, or at common law.
"§ 95-281.  Encouragement of more generous leave policies.
Nothing in this Article shall be deemed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Article."
Sec. 2.  This act becomes effective six months after ratification.  However, in the case of a collective bargaining agreement in effect on the effective date, this act shall apply on the earlier of either (i) the date of the termination of the agreement; or (ii) the date that occurs 12 months after the date of ratification.