Florida Senate - 2020                                    SB 1194
       By Senator Cruz
       18-00344A-20                                          20201194__
    1                        A bill to be entitled                      
    2         An act relating to employment practices; creating ch.
    3         444, F.S., entitled the “Florida Family Leave Act”;
    4         providing a short title; providing legislative
    5         findings and intent; defining terms; requiring an
    6         employer to allow certain employees to take paid
    7         family leave to bond with a new child upon the child’s
    8         birth, adoption, or foster care placement; requiring
    9         an employee to take certain actions in order to
   10         receive family leave; specifying limitations and
   11         duties related to an employer’s administration of
   12         family leave; requiring that family leave be taken
   13         concurrently with any leave taken pursuant to federal
   14         family and medical leave provisions; requiring an
   15         employer to provide notice to employees of the right
   16         to paid family leave; prescribing notice requirements;
   17         requiring the Department of Economic Opportunity to
   18         create a poster and a model notice that specify family
   19         leave rights; specifying circumstances under which an
   20         employer is deemed in compliance with notice
   21         requirements; providing a civil penalty for an
   22         employer’s failure to comply with the notice
   23         requirements; authorizing the executive director of
   24         the department to conduct an investigation under
   25         certain circumstances; establishing rebuttable
   26         presumptions that an employer has violated certain
   27         provisions of ch. 444, F.S., under specified
   28         circumstances; authorizing the executive director to
   29         take certain actions in the event of specified
   30         violations; authorizing an employee to bring a civil
   31         action against an employer for a violation; providing
   32         a timeframe for filing such action; authorizing the
   33         award of specified compensation, damages, and fees;
   34         providing a civil penalty; prohibiting an employee
   35         from taking certain actions in bad faith; providing a
   36         criminal penalty; authorizing the department to adopt
   37         rules; providing construction; amending s. 760.10,
   38         F.S.; revising the Florida Civil Rights Act of 1992 to
   39         prohibit specified employment practices on the basis
   40         of pregnancy, childbirth, or a related medical
   41         condition; providing for leave, maintenance of health
   42         coverage, reasonable accommodation and transfer, and
   43         return rights for an employee who is disabled from
   44         pregnancy, childbirth, or a related medical condition;
   45         providing construction; amending s. 760.11, F.S.;
   46         conforming a cross-reference; providing an effective
   47         date.
   49  Be It Enacted by the Legislature of the State of Florida:
   51         Section 1. Chapter 444, Florida Statutes, consisting of
   52  sections 444.001-444.008, Florida Statutes, is created to read:
   53                             CHAPTER 444                           
   54                    THE FLORIDA FAMILY LEAVE ACT                   
   55         444.001Short title.—This chapter may be cited as the
   56  “Florida Family Leave Act.”
   57         444.002Legislative findings and intent.—The Legislature
   58  finds that it is in the public interest to provide paid family
   59  leave to workers for the birth, adoption, or foster care
   60  placement of a new child. The need for paid family leave has
   61  increased as the participation of both parents in the workforce
   62  has increased and the number of single parents has grown.
   63  Despite knowing the importance of time spent bonding with a new
   64  child, the majority of workers in this state are unable to take
   65  family leave because they are unable to afford leave without
   66  pay. When a worker does not receive income during a leave of
   67  absence, his or her family suffers as a result of the worker’s
   68  loss of income, increasing demand on the state’s reemployment
   69  assistance program and dependence on the state’s welfare system.
   70  Therefore, in an effort to assist workers in reconciling the
   71  demands of work and family, the Legislature intends to require
   72  employers to allow employees to take paid family leave to bond
   73  with their minor child during the first 3 months after the birth
   74  of the child or the placement of the child through the foster
   75  care system or by adoption.
   76         444.003Definitions.—As used in this chapter, the term:
   77         (1)“Adverse action” includes:
   78         (a)Discharge.
   79         (b)Demotion.
   80         (c)A threat of discharge or demotion to an employee.
   81         (d)Any other retaliatory action that results in a change
   82  in the terms or conditions of employment which would dissuade a
   83  reasonable employee from exercising a right under this chapter.
   84         (2)“Child” means a biological, adopted, or foster son or
   85  daughter or a stepson or stepdaughter of an employee.
   86         (3)“Department” means the Department of Economic
   87  Opportunity.
   88         (4)“Employee” means a person who performs services for
   89  hire for an employer for an average of 20 or more hours per
   90  week. The term includes all individuals employed at any site
   91  owned or operated by an employer, not including an independent
   92  contractor.
   93         (5)“Employer” has the same meaning as in s. 760.02.
   94         (6)“Executive director” means the executive director of
   95  the Department of Economic Opportunity.
   96         (7)“Family leave” means a paid leave of absence from
   97  employment because of the birth of an employee’s child or the
   98  placement of a child with an employee through the foster care
   99  system or by adoption.
  100         444.004Family leave upon the birth, adoption, or foster
  101  care placement of a child.—
  102         (1)Beginning July 1, 2020, an employer shall allow an
  103  employee who has been employed by the employer for at least 18
  104  months to take family leave from employment, for up to 3 months,
  105  for the employee to bond with his or her minor child during the
  106  first 3 months after the birth of the child or the placement of
  107  the child in connection with foster care or adoption. Such
  108  family leave must be without loss of pay or diminution of any
  109  privilege, benefit, or right arising out of the person’s
  110  employment.
  111         (2)In order to receive family leave, an employee must:
  112         (a)Request the leave from his or her employer as soon as
  113  practicable after the employee determines that he or she needs
  114  to take leave to bond with a new child.
  115         (b)Notify the employer of the anticipated duration of the
  116  leave.
  117         (c)Comply with any reasonable procedures established by
  118  the employer for an employee to follow when requesting and
  119  obtaining leave.
  120         (3)An employer may require an employee who requests or
  121  obtains family leave to provide reasonable documentation to
  122  verify eligibility to take family leave.
  123         (4)An employer may not take adverse action against an
  124  employee for requesting or obtaining family leave authorized
  125  under this section.
  126         (5)An employer shall retain a record of family leave taken
  127  by an employee for at least 3 years. After giving the employer
  128  notice and determining a mutually agreeable time for inspection,
  129  the executive director may inspect a record kept pursuant to
  130  this subsection for the purpose of determining the employer’s
  131  compliance. If an employer fails to retain a record as required
  132  under this subsection or to allow the executive director to
  133  inspect such records, the executive director may take action
  134  pursuant to s. 444.006(3).
  135         (6)Family leave taken pursuant to this section must be
  136  taken concurrently with leave taken pursuant to the Family and
  137  Medical Leave Act of 1993, Pub. L. No. 103-3.
  138         444.005Notice requirements.—
  139         (1)An employer shall notify his or her employees that they
  140  are entitled to family leave to bond with a new child upon
  141  meeting the requirements for eligibility set forth in this
  142  chapter.
  143         (2)The notice must include all of the following:
  144         (a)The purposes for which the employer is required to
  145  allow an employee to take a leave of absence.
  146         (b)A statement regarding the prohibition of the employer’s
  147  taking adverse action against an employee who exercises a right
  148  under this section.
  149         (c)Information regarding the right of an employee to
  150  report an alleged violation of this chapter by the employer to
  151  the executive director or to bring a civil action under s.
  152  444.006.
  153         (3)The department shall create and make available to
  154  employers a poster and a model notice that they may use in
  155  complying with subsection (1). The poster and model notice must
  156  be printed in English, Spanish, Haitian Creole, and any other
  157  language the executive director determines is necessary to
  158  notify employees of their rights under this chapter.
  159         (4)An employer is deemed to be in compliance with
  160  subsection (1) by:
  161         (a)Displaying the poster created by the department in a
  162  conspicuous and accessible area at the site where employees
  163  work;
  164         (b)Including the model notice created by the department in
  165  an employee handbook or other written guide for employees
  166  concerning employee benefits or leave provided by the employer;
  167  or
  168         (c)Providing the model notice created by the department to
  169  each employee at the time of initial hiring.
  170         (5)If an employer decides not to use the model notice
  171  created by the department, the employer’s notice must contain
  172  the same information that is included in the model notice.
  173         (6)In lieu of posting the model notice, an employer may
  174  distribute the notice to employees by electronic means.
  175         (7)An employer who violates this section is subject to a
  176  civil penalty of not more than $500 for the first violation and
  177  not more than $1,000 for each subsequent violation.
  178         444.006Violations of chapter; civil action; penalties.—
  179         (1)Upon receiving a written complaint from an employee,
  180  the executive director may conduct an investigation to determine
  181  whether the employer has violated this chapter.
  182         (2)(a)There is a rebuttable presumption that an employer
  183  has violated this chapter if the employer takes adverse action
  184  against an employee within 90 days after the employee:
  185         1.Files a complaint with the executive director alleging a
  186  violation of this chapter or brings a civil action under this
  187  section;
  188         2.Informs a person about an alleged violation of this
  189  chapter by his or her employer;
  190         3.Cooperates with the executive director or another person
  191  in the investigation or prosecution of an alleged violation of
  192  this chapter by his or her employer; or
  193         4.Opposes a policy or practice of his or her employer or
  194  an act committed by the employer which is prohibited under this
  195  chapter.
  196         (b)The rebuttable presumption may be overcome by clear and
  197  convincing evidence.
  198         (3)If the executive director determines that a violation
  199  of this chapter has occurred, the executive director may:
  200         (a)Attempt to informally resolve any pertinent issue
  201  through mediation;
  202         (b)With the written consent of the employee, request the
  203  Attorney General to bring an action on behalf of the employee in
  204  accordance with this section; or
  205         (c)Bring an action on behalf of an employee in the county
  206  where the violation allegedly occurred.
  207         (4)An employee may bring a civil action in a court of
  208  competent jurisdiction against his or her employer for a
  209  violation of this chapter regardless of whether the employee
  210  first filed a complaint with the executive director.
  211         (5)An action brought under subsection (3) or subsection
  212  (4) must be filed within 3 years after the occurrence of the act
  213  on which the action is based.
  214         (6)(a)If a court finds that an employer violated this
  215  chapter in an action brought under subsection (3) or subsection
  216  (4), the court may award the employee:
  217         1.The full monetary value of any unpaid family leave that
  218  the employee was unlawfully denied.
  219         2.Actual economic damages suffered by the employee as a
  220  result of the employer’s violation of this chapter.
  221         3.An additional amount not exceeding three times the
  222  damages awarded under subparagraph 2.
  223         4.Reasonable attorney fees and other costs.
  224         5.Any other relief the court deems appropriate, including
  225  reinstatement of employment, back pay, and injunctive relief.
  226         (b)If the full monetary value of any unpaid family leave
  227  of an employee is recovered under this subsection, such leave
  228  must be paid to the employee without cost to the employee.
  229         (c)If the action was brought by the Attorney General under
  230  paragraph (3)(b), the court may order the employer to pay $1,000
  231  per violation to the state.
  232         (7)An employee may not file a complaint in bad faith with
  233  the executive director alleging a violation of this chapter or
  234  bring or testify in bad faith in an action under this section.
  235  An employee who violates this subsection commits a misdemeanor
  236  of the first degree, punishable as provided in s. 775.082 or s.
  237  775.083.
  238         444.007Rules.—The department may adopt rules to implement
  239  and administer this chapter.
  240         444.008Construction.—
  241         (1)This chapter does not diminish an employer’s obligation
  242  to comply with a collective bargaining agreement, a contract, an
  243  employee benefit plan, or an employer policy, as applicable,
  244  which requires leave in excess of that required under this
  245  chapter for the birth, adoption, or placement of a child.
  246         (2)An individual’s right to family leave under this
  247  chapter may not be diminished by a collective bargaining
  248  agreement entered into or renewed, or an employer policy adopted
  249  or retained, on or after July 1, 2020. Any agreement by an
  250  individual to waive his or her rights under this chapter is
  251  deemed against public policy and is void and unenforceable.
  252         Section 2. Present subsections (2) through (10) of section
  253  760.10, Florida Statutes, are redesignated as subsections (3)
  254  through (11), respectively, and a new subsection (2) is added to
  255  that section, to read:
  256         760.10 Unlawful employment practices.—
  257         (2)In addition to the provisions governing pregnancy under
  258  subsection (1), it is an unlawful employment practice for an
  259  employer to:
  260         (a)Refuse to allow a female employee disabled by
  261  pregnancy, childbirth, or a related medical condition to take
  262  unpaid leave for a period, not to exceed 4 months, during which
  263  the female employee is disabled on account of pregnancy,
  264  childbirth, or a related medical condition. An employee is
  265  entitled to use any accrued vacation leave to receive
  266  compensation during the period of unpaid leave. An employer may
  267  require an employee who plans to take leave pursuant to this
  268  paragraph to provide the employer reasonable notice of the date
  269  the leave will commence and the estimated duration of the leave.
  270         (b)Refuse to maintain and pay for coverage for a group
  271  health plan, as defined in s. 5000(b)(1) of the Internal Revenue
  272  Code, for an eligible employee who takes leave pursuant to
  273  paragraph (a) at the level and under the conditions that
  274  coverage would have been provided if the employee had
  275  continuously worked for the duration of the leave. This
  276  paragraph does not preclude an employer from maintaining and
  277  paying for coverage under a group health plan for a period
  278  exceeding 4 months. An employer may recover the premium that the
  279  employer paid for maintaining coverage as required under this
  280  paragraph if:
  281         1.The employee fails to return from leave after the period
  282  of leave to which the employee is entitled has expired.
  283         2.The employee’s failure to return from leave is for a
  284  reason other than the employee’s taking paid family leave
  285  pursuant to chapter 444 or other than the continuation,
  286  recurrence, or onset of a medical condition that entitles the
  287  employee to leave under paragraph (a) or circumstances beyond
  288  the employee’s control.
  289         (c)Refuse to provide reasonable accommodation for an
  290  employee, if she so requests with the advice of her health care
  291  provider, for pregnancy, childbirth, or a medical condition
  292  related to pregnancy or childbirth. As an accommodation, and
  293  with the advice of her health care provider, an employee may
  294  request a transfer to a less strenuous or hazardous position for
  295  the duration of her pregnancy. This paragraph does not require
  296  an employer to create additional employment duties that the
  297  employer would not otherwise have created, to discharge another
  298  employee, to transfer an employee who has more seniority, or to
  299  promote an employee who is not qualified to perform certain
  300  duties.
  301         (d)Refuse to return an employee to the same position after
  302  the period of leave to which the employee is entitled has
  303  expired. If her same position is no longer available, an
  304  employer must offer a position that is comparable in terms of
  305  pay, location, job content, and advancement opportunities,
  306  unless the employer can prove that no comparable position
  307  exists.
  308         (e)Otherwise interfere with, restrain, or deny the
  309  exercise of, or the attempt to exercise, any right provided
  310  under this subsection.
  312  This subsection may not be construed to affect any other
  313  provision of law relating to pregnancy, or in any way to
  314  diminish the coverage of pregnancy, childbirth, or a medical
  315  condition related to pregnancy or childbirth under any other
  316  law, including chapter 444. An employee is entitled to take
  317  leave pursuant to this subsection in addition to any paid family
  318  leave the employee may be eligible to receive pursuant to
  319  chapter 444.
  320         Section 3. Subsection (1) of section 760.11, Florida
  321  Statutes, is amended to read:
  322         760.11 Administrative and civil remedies; construction.—
  323         (1) Any person aggrieved by a violation of ss. 760.01
  324  760.10 may file a complaint with the commission within 365 days
  325  of the alleged violation, naming the employer, employment
  326  agency, labor organization, or joint labor-management committee,
  327  or, in the case of an alleged violation of s. 760.10(6) s.
  328  760.10(5), the person responsible for the violation and
  329  describing the violation. Any person aggrieved by a violation of
  330  s. 509.092 may file a complaint with the commission within 365
  331  days of the alleged violation naming the person responsible for
  332  the violation and describing the violation. The commission, a
  333  commissioner, or the Attorney General may in like manner file
  334  such a complaint. On the same day the complaint is filed with
  335  the commission, the commission shall clearly stamp on the face
  336  of the complaint the date the complaint was filed with the
  337  commission. In lieu of filing the complaint with the commission,
  338  a complaint under this section may be filed with the federal
  339  Equal Employment Opportunity Commission or with any unit of
  340  government of the state which is a fair-employment-practice
  341  agency under 29 C.F.R. ss. 1601.70-1601.80. If the date the
  342  complaint is filed is clearly stamped on the face of the
  343  complaint, that date is the date of filing. The date the
  344  complaint is filed with the commission for purposes of this
  345  section is the earliest date of filing with the Equal Employment
  346  Opportunity Commission, the fair-employment-practice agency, or
  347  the commission. The complaint shall contain a short and plain
  348  statement of the facts describing the violation and the relief
  349  sought. The commission may require additional information to be
  350  in the complaint. The commission, within 5 days of the complaint
  351  being filed, shall by registered mail send a copy of the
  352  complaint to the person who allegedly committed the violation.
  353  The person who allegedly committed the violation may file an
  354  answer to the complaint within 25 days of the date the complaint
  355  was filed with the commission. Any answer filed shall be mailed
  356  to the aggrieved person by the person filing the answer. Both
  357  the complaint and the answer shall be verified.
  358         Section 4. This act shall take effect July 1, 2020.