GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	3 

HOUSE BILL 53*
Corrected Copy 3/10/93
Committee Substitute Favorable 5/7/93

Short Title:  Family and Medical Leave Act.	(Public)
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Sponsors:
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Referred to:  
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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.
It is the purpose of this Article:
(1)	To balance the demands of the workplace with the needs of families, and to promote national interests in preserving family integrity;
(2)	To entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, spouse, or parent who has a serious health condition;
(3)	To accomplish the purposes described in subdivisions (1) and (2) in a manner that accommodates the legitimate interests of employers;
(4)	To accomplish the purposes described in subdivisions (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and
(5)	To promote the goal of equal employment opportunities for women and men, pursuant to the Equal Protection Clause.
"§ 95-271.  Definitions.
The following definitions apply in this Article:
(1)	Commissioner. – The term 'Commissioner' means the Commissioner of Labor or the Commissioner's authorized representative.
(2)	Employee. – The term 'employee' means 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. For purposes of determining whether an employee meets the hours of service requirement of this definition, the legal standards established under section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 207) shall apply.
(3)	Employer. – The term 'employer' means 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 the interest of an employer.
(4)	Employment Benefits. – The term 'employment benefits' means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an 'employee benefit plan', as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1002(3)).
(5)	Health Care Provider. – The term 'health care provider' means:
a.	A licensed physician who is authorized to practice medicine, surgery, chiropractic, or podiatry by the State in which the physician practices; or
b.	Any other person determined by the United States Secretary of Labor pursuant to the United States Family and Medical Leave Act of 1993 (P.L. 103-3) to be capable of providing health care services.
(6)	Parent. – The term 'parent' means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.
(7)	Person. – The term 'person' has the same meaning given such term in section 3(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 203(a)).
(8)	Reduced Leave Schedule. – The term 'reduced leave schedule' means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.
(9)	Serious Health Condition. – The term 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves:
a.	Inpatient care in a hospital, hospice, or residential medical care facility; or
b.	Continuing treatment by a health care provider.
(10)	Son or Daughter. – The term 'son or daughter' means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:
a.	Under 18 years of age; or
b.	18 years of age or older and incapable of self-care because of a mental or physical disability.
(11)	Spouse. – The term 'spouse' means a husband or wife, as the case may be.
"§ 95-272.  Leave requirement.
(a)	Entitlement to Leave. – Subject to G.S. 95-273, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(1)	Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(2)	Because of the placement of a son or daughter with the employee for adoption or foster care.
(3)	In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(4)	Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
The entitlement to leave under subdivisions (1) and (2) of this subsection for a birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.
(b)	Leave Taken Intermittently or on a Reduced Leave Schedule. –
(1)	In General. – Leave under subdivision (1) or (2) of this section shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise.  Subject to subdivision (2) of this subsection, subject to subdivision (e)(2) of this section, and subject to G.S. 95-273(b)(5), leave under subdivisions (a)(3) and (a)(4) of this section may be taken intermittently or on a reduced leave schedule when medically necessary.  The taking of leave intermittently or on a reduced leave schedule pursuant to this subdivision shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) of this section beyond the amount of leave actually taken.
(2)	Alternative Position. – If an employee requests intermittent leave, or leave on a reduced leave schedule, under subdivision (a)(3) or (a)(4) of this section, that is foreseeable based on planned medical treatment, the employer may require that employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that:
a.	Has equivalent pay and benefits; and
b.	Better accommodates recurring periods of leave than the regular employment position of the employee.
(c)	Unpaid Leave Permitted. – Except as provided in subsection (d) of this section, leave granted under subsection (a) of this section may consist of unpaid leave.  Where an employee is otherwise exempt under regulations issued by the United States Secretary of Labor pursuant to section 13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 213(a)(1)), the compliance of an employer with this title by providing unpaid leave shall not affect the exempt status of the employee under such section.
(d)	Relationship to Paid Leave. –
(1)	Unpaid Leave. – If an employer provides paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required under this title may be provided without compensation.
(2)	Substitution of Paid Leave. –
a.	In General. – An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subdivisions (a)(1), (a)(2), or (a)(3) of this section for any part of the 12-week period of such leave under such subsection.
b.	Serious Health Condition. – An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under subdivision (a)(3) or (a)(4) of this section for any part of the 12-week period of such leave under such subsection, except that nothing in this title shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.
(e)	Foreseeable Leave. –
(1)	Requirement of Notice. – In any case in which the necessity for leave under subdivision (a)(1) or (a)(2) is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under that subdivision, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(2)	Duties of Employee. – In any case in which the necessity for leave under subdivision (a)(3) or (a)(4) of this section is foreseeable based on planned medical treatment, the employee:
a.	Shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
b.	Shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under that subdivision, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(f)	Spouses Employed by the Same Employer. – In any case in which a husband and wife entitled to leave under subsection (a) of this section are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period, if such leave is taken:
(1)	Under subdivision (a)(1) or (a)(2) of this section; or
(2)	To care for a sick parent under subdivision (a)(3) of this section.
"§ 95-273.  Certification.
(a)	In General. – An employer may require that a request for leave under G.S. 95-272(a)(3) or G.S. 95-272(a)(4) be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, as appropriate.  The employee shall provide, in a timely manner, a copy of such certification to the employer.
(b)	Sufficient Certification. – Certification provided under subsection (a) of this section shall be sufficient if it states:
(1)	The date on which the serious health condition commenced;
(2)	The probable duration of the condition;
(3)	The appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4)	a.	For the purposes of leave under G.S. 95-272(a)(3), a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and
b.	For purposes of leave under G.S. 95-272(a)(4), a statement that the employee is unable to perform the functions of the position of the employee;
(5)	In the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;
(6)	In the case of certification for intermittent leave, or leave on a reduced leave schedule, under G.S. 95-272(a)(4), a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and
(7)	In the case of certification for intermittent leave, or leave on a reduced leave schedule, under G.S. 95-272(a)(3), a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.
(c)	Second Opinion. –
(1)	In General. – In any case in which the employer has reason to doubt the validity of the certification provided under subsection (a) of this section for leave under G.S. 95-272(a)(3) or G.S. 95-272(a)(4), the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) of this section for such leave.
(2)	Limitation. – A health care provider designated or approved under subdivision (1) of this subsection shall not be employed on a regular basis by the employer.
(d)	Resolution of Conflicting Opinions. –
(1)	In General. – In any case in which the second opinion described in subsection (c) of this section differs from the opinion in the original certification provided under subsection (a) of this section, the employer may require, at the expense of the employer, that the employee obtain 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) of this section.
(2)	Finality. – The opinion of the third health care provider concerning the information certified under subsection (b) of this section shall be considered to be final and shall be binding on the employer and the employee.
(e)	Subsequent Recertification. – The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis, at the employer's expense.
"§ 95-274. Employment and benefits protection.
(a)	 Restoration to Position. –
(1)	In General. – Except as provided in subsection (b) of this section, any eligible employee who takes leave under G.S. 95-272 for the intended purpose of the leave shall be entitled, on return from such leave:
a.	To be restored by the employer to the position of employment held by the employee when the leave commenced; or
b.	To be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
(2)	Loss of Benefits. – The taking of leave under G.S. 95-272 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.
(3)	Limitations. – Nothing in this section shall be construed to entitle any restored employee to:
a.	The accrual of any seniority or employment benefits during any period of leave; or
b.	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.
(4)	Certification. – As a condition of restoration under subdivision (1) of this subsection for an employee who has taken leave under G.S. 95-272(a)(4), the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this subdivision shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.
(5)	Construction. – Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave under G.S. 95-272 to report periodically to the employer on the status and intention of the employee to return to work.
(b)	Exemption Concerning Certain Highly Compensated Employees. –
(1)	Denial of Restoration. – An employer may deny restoration under subsection (a) of this section to any eligible employee described in subdivision (2) of this subsection if:
a.	The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
b.	The employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
c.	In any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
(2)	Affected Employees. – An eligible employee described in subdivision (1) of this subsection is a salaried eligible 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.
"§ 95-275. Maintenance of health benefits.
(a)	Coverage. – Except as provided in subsection (b) of this section, during any period that an eligible employee takes leave under G.S. 95-272, the employer shall maintain coverage under any 'group health plan' (as defined in section 5000(b)(1) of the Internal Revenue Code of 1986) for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave.
(b)	Failure to Return From Leave. – The employer may recover the premium that the employer paid for maintaining coverage for the employee under such group health plan during any period of unpaid leave under G.S. 95-272 if:
(1)	The employee fails to return from leave under G.S. 95-272 after the period of leave to which the employee is entitled has expired; and
(2)	The employee fails to return to work for a reason other than:
a.	The continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under G.S. 95-272(a)(3) or G.S. 95-272(a)(4); or
b.	Other circumstances beyond the control of the employee under regulations adopted by the United States Secretary of Labor under the United States Family and Medical Leave Act of 1993 (P.L. 103-3).
(c)	Certification. –
(1)	Issuance. – 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 sub-subdivision (b)(2)a. of this section be supported by:
a.	A certification issued by the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate, in the case of an employee unable to return to work because of a condition specified in G.S. 95-272(a)(3); or
b.	A certification issued by the health care provider of the eligible employee, in the case of an employee unable to return to work because of a condition specified in G.S. 95-272(a)(4).
(2)	Copy. – The employee shall provide, in a timely manner, a copy of such certification to the employer.
(3)	Sufficiency of Certification. –
a.	Leave Due to Serious Health Condition of Employee. – The certification described in sub-subdivision (1)b. of this subsection shall be sufficient if the certification states that a serious health condition prevented the employee from being able to perform the functions of the position of the employee on the date that the leave of the employee expired.
b.	Leave Due to Serious Health Condition of Family Member. – The certification described in sub-subdivision (1)a. of this subsection shall be sufficient if the certification states that the employee is needed to care for the son, daughter, spouse, or parent who has a serious health condition on the date that the leave of the employee expired.
"§ 95-276. Prohibited acts.
(a)	Denial of Rights. – It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this Article.
(b)	Discrimination. – It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this Article. It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual:
(1)	Has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this Article;
(2)	Has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Article; or
(3)	Has testified, 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 an 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)	Remedies for Denial of Rights. – For a violation of G.S. 95-276(a), the employee or the Commissioner may seek and the court may award any or all of the following types of relief:
(1)	An injunction against 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 or salary, lost benefits, or other compensation denied or lost to the employee by reason of the violation.
(4)	Any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee.
(5)	Interest on the amount awarded under subdivisions (3) and (4) of this subsection at the legal rate set in G.S. 24-1.
(6)	Any other equitable relief that the court deems appropriate, including, without limitation, employment, reinstatement, transfer, reassignment, and promotion.
(d)	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, reduce the liquidated damages or award no liquidated damages.
(e)	Remedies for Discrimination. – For a violation of G.S. 95-276(b), the employee or the Commissioner may seek and the court may award any of the types of relief described in G.S. 95-243(c).
(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, 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. 95-276, 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.  Investigation and enforcement authority; record keeping.
(a)	In General. – The Commissioner shall receive, investigate, and attempt to resolve complaints of violations of G.S. 95-276 in the same manner the Commissioner receives, investigates, and attempts to resolve complaints of violations of Article 2A of this Chapter (Wage and Hour Act).  For this purpose, the Commissioner shall have, subject to subsection (c), the same investigative and enforcement authority provided under G.S. 95-25.15(a) and G.S. 95-25.16 in the Wage and Hour Act.
(b)	Obligation to Keep and Preserve Records. – Any employer shall make, keep and preserve records pertaining to compliance with this Article in accordance with section 11(c) of the Fair Labor Standards Act and in accordance with the regulation issued by United States Secretary of Labor.  Any employer who violates this subsection shall be subject to a civil money penalty assessed and collected in the same manner as record-keeping violations under the Wage and Hour Act.
(c)	Required Submission Generally Limited to an Annual Basis. – The Commissioner shall not under the authority of this section require any employer or any plan, fund, or program to submit to the Commissioner any books or records more than once during any 12-month period, unless the Commissioner has reasonable cause to believe there may exist a violation of this Article or any rule issued pursuant to this Article, or is investigating a charge pursuant to subsection (a) of this section.
"§ 95-279.  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 subject to a civil money penalty assessed and collected in the same manner as record-keeping violations under the Wage and Hour Act.
"§ 95-280.  Regulations.
The Commissioner shall promulgate rules to carry out and promote full compliance with this act.  
"§ 95-281.  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.
"§ 95-282.  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.  The Commissioner shall commence rule making under this act within 60 days after the act's effective date.
Sec. 3.  There is appropriated from the General Fund to the North Carolina Department of Labor the sum of fifty thousand dollars ($50,000) for the 1993-94 fiscal year to implement the provisions of this act.
Sec. 4.  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.