HF 149 (LSB 1191HH (4) 85)

HOUSE FILE 149

BY  ISENHART and KEARNS

A BILL FOR

An Act requiring minimum sick and safe time for employees, providing a penalty, and including applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  91F.1  Title.
   This chapter shall be known and may be cited as the “Healthy and Safe Families and Workplaces Act”.
    Sec. 2.  NEW SECTION.  91F.2  Public policy.
   It is the public policy of this state to protect public health and safety and to promote the general welfare of its citizens by supporting employers in their efforts to encourage employees to work when they are healthy and by protecting the basic rights of workers who safeguard public health by remaining home when they are ill.
    Sec. 3.  NEW SECTION.  91F.3  Definitions.

   1.  “Commissioner” means the labor commissioner appointed pursuant to section 91.2.
   2.  “Domestic abuse assault” means as defined in section 708.2A.
   3.  “Employee” means as defined in the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended.
   4.  “Employer” means as defined in the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended.
   5.  “Family member” means any of the following:
   a.  An employee’s spouse or domestic partner.
   b.  A child or foster child; stepchild; legal ward; a child of a domestic partner; or a child to whom the employee stands in loco parentis.
   c.  A parent or foster parent; stepparent; legal guardian; or a person who stood in loco parentis to the employee when the employee was a minor child.
   d.  A grandparent or spouse or domestic partner of a grandparent.
   e.  A grandchild.
   f.  A sibling or foster sibling; stepsibling; or spouse or domestic partner of a sibling, foster sibling, or stepsibling.
   g.  Any other individual related to the employee by blood or affinity whose close association with the employee is the equivalent of a familial relationship.

   6.  “Health care professional” means as defined in section 135.157.
   7.  “Retaliatory personnel action” means the discharge, suspension, or demotion of, or any other adverse action taken by an employer against, an employee.
   8.  “Sexual abuse” means as defined in section 709.1.
   9.  “Sick and safe time” means time, whether paid or unpaid, that is earned and is provided by an employer to an employee for the purposes described in section 91F.5.
   10.  “Stalking” means as described in section 708.11.
    Sec. 4.  NEW SECTION.  91F.4  Accrual —— sick and safe time.

   1.  An employee who works for compensation for an employer shall have the right to accrue and use sick and safe time as provided in this chapter.
   2.
  a.  An employee shall accrue a minimum of five and fifty-four hundredths hours of sick and safe time for every forty hours worked.
   b.  An employee shall not accrue more than one hundred forty-four hours of sick and safe time in a calendar year, unless the employer selects a higher limit.
   3.  Employees who are exempt from overtime requirements under section 13(a)(1) of the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 213(a)(1), are deemed to work forty hours in each work week for purposes of sick and safe time accrual unless their normal work week is less than forty hours, in which case sick and safe time accrues based upon that normal work week.
   4.  Sick and safe time as provided in this section shall begin to accrue upon the commencement of employment for new employees and for existing employees beginning July 1, 2013.
   5.
  a.  A new employee may use accrued sick and safe time beginning on the sixtieth calendar day following commencement of the employee’s employment. On and after the sixtieth calendar day of employment, an employee may use accrued sick and safe time and accruing sick and safe time as it accrues. 
   b.  Existing employees may use sick and safe time as it accrues pursuant to this chapter.
   6.  Accrued sick and safe time shall be carried over to the following calendar year subject to the limit described in subsection 2, paragraph “b”.
   7.  An employer with a leave policy who makes available an amount of leave sufficient to meet the accrual requirements of this section that may be used for the same purposes and under the same conditions as sick and safe time under this chapter is not required to provide additional sick and safe time.
   8.  Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement, or other separation from employment for accrued sick and safe time that has not been used.
   9.
  a.  If an employee is transferred to a separate division, entity, or location, but remains employed by the same employer, the employee is entitled to all sick and safe time previously accrued; is entitled to immediately use all accrued sick and safe time as provided in this chapter; and shall continue to accrue sick and safe time at the same rate or higher as before the transfer.
   b.  When there is a separation from employment and the employee is rehired within three months of the separation by the same employer, previously accrued sick and safe time that had not been used prior to the separation shall be reinstated. The employee may use such accrued sick and safe time immediately upon rehire, and sick and safe time shall begin to accrue immediately upon rehire.
   10.  At the employer’s discretion, the employer may advance sick and safe time to an employee ahead of accrual of such time by the employee.
    Sec. 5.  NEW SECTION.  91F.5  Use of sick and safe time —— purposes —— procedures.

   1.  Sick and safe time shall be provided to an employee by an employer for the following purposes:
   a.  An employee’s mental or physical illness, injury, or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; an employee’s need for preventive medical care.
   b.  An employee’s need to care for a family member with a mental or physical illness, injury, or health condition; an employee’s need to care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; an employee’s need to care for a family member who needs preventive medical care.
   c.
  (1)  Closure of the employee’s place of work by order of a public official due to a public health emergency.
   (2)  An employee’s need to care for a family member whose school or place of care has been closed by order of a public official due to a public health emergency.
   (3)  An employee’s need to care for a family member when public health authorities or a health care professional has determined that the family member’s presence in the community jeopardizes the health of others because of the family member’s exposure to communicable disease, whether or not the family member has actually contracted the communicable disease.
   d.  An employee’s need to be absent from work due to domestic abuse assault, sexual abuse, or stalking, provided the leave from work is to do one or more of the following:
   (1)  Seek medical attention for the employee or family member to recover from physical or psychological injury or disability caused by domestic abuse assault or sexual abuse.
   (2)  Obtain services from a victim services organization.
   (3)  Obtain psychological or other counseling.
   (4)  Seek relocation due to the domestic abuse assault, sexual abuse, or stalking.
   (5)  Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic abuse assault, sexual abuse, or stalking.
   2.  Sick and safe time shall be allowed upon the oral request of an employee. When possible, the employee shall include the expected duration of the employee’s absence.
   3.  When the use of sick and safe time is foreseeable, the employee shall make a good faith effort to provide notice of the need for such time to the employer in advance of the use of the sick and safe time, and the employee shall make a reasonable effort to schedule the use of sick and safe time in a manner that does not unduly disrupt the operations of the employer.
   4.  Accrued sick and safe time may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
   5.
  a.  For sick and safe time for more than three consecutive days, an employer may require reasonable documentation that the sick and safe time is for the purposes described in subsection 1.
   (1)  Documentation signed by a health care professional indicating that sick time is necessary shall be considered reasonable documentation.
   (2)  A police report indicating that the employee was a victim of domestic abuse assault, sexual abuse, or stalking; a court order; or a signed statement from a victim and witness advocate affirming that the employee is involved in legal action related to domestic abuse assault, sexual abuse, or stalking shall be considered reasonable documentation.
   b.  An employer may not require that the documentation explain the nature of the medical reason or the details of the domestic abuse assault, sexual abuse, or stalking.
   c.
  (1)  If an employer chooses to require documentation for use of sick time and the employee does not have health insurance, the employer is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation.
   (2)  If the employee does have health insurance, the employer is responsible for paying any costs charged to the employee by the health care provider for providing the specific documentation required by the employer.
   6.  An employer shall not require as a condition of allowing sick and safe time under this chapter that the employee search for or find a replacement worker to cover the hours during which the employee will be using sick and safe time.
    Sec. 6.  NEW SECTION.  91F.6  Exercise of rights —— retaliation prohibited.

   1.  An employer or any other person shall not interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.
   2.  An employer shall not take retaliatory personnel action or discriminate against an employee because the employee has exercised rights protected under this chapter. Such rights include but are not limited to the following:
   a.  The right to use sick and safe time pursuant to this chapter.
   b.  The right to file a complaint or inform any person about any employer’s alleged violation of this chapter.
   c.  The right to cooperate with the commissioner in any investigation of alleged violations of this chapter.
   d.  The right to inform any person of the person’s potential rights under this chapter.
   3.  An employer’s absence control policy shall not count sick and safe time taken pursuant to this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.
   4.  The protections of this section shall apply to any person who mistakenly but in good faith alleges violations of this section.
   5.  There is a rebuttable presumption of retaliation under this section whenever an employer takes adverse action against an employee within ninety days of when that employee has done any of the following:
   a.  Filed a complaint with the commissioner or a court alleging a violation of any provision of this chapter.
   b.  Informed any person about an employer’s alleged violation of this chapter.
   c.  Cooperated with the commissioner or others in an investigation or prosecution of any alleged violation of this chapter.
   d.  Opposed any policy, practice, or act that is unlawful under this chapter.
   e.  Informed any person of the person’s potential rights under this chapter.
    Sec. 7.  NEW SECTION.  91F.7  Notice and posting.

   1.  An employer shall give notice to employees of the following:
   a.  Employees are entitled to sick and safe time.
   b.  The accrual amounts of sick and safe time.
   c.  The terms of use of sick and safe time guaranteed under this chapter.
   d.  The prohibition against retaliation against employees who request or use sick and safe time.
   e.  Each employee has the right to file a complaint or bring a civil action if sick and safe time as required by this chapter is denied by the employer, or the employee is retaliated against for requesting or taking sick and safe time.
   2.
  a.  An employer may comply with this section by supplying each employee with a notice that contains all the information required in subsection 1.
   b.
  An employer may comply with this section by displaying a poster and other informational materials in a conspicuous and accessible place in each establishment where such employees are employed which contains all the information required in subsection 1.
   3.  An employer who willfully violates the notice and posting requirements of this section shall be subject to a civil penalty in an amount not to exceed one hundred dollars for each separate offense.
    Sec. 8.  NEW SECTION.  91F.8  Damages recoverable by an employee.
   In an action by an employee against the employee’s employer or former employer for an alleged violation of this chapter, when it has been shown that the employer has intentionally failed to provide sick and safe time to the employee in violation of this chapter or failed to allow the employee to use accrued sick and safe time as provided by this chapter, the employer shall be liable to the employee for the monetary value of the owed sick and safe time, plus liquidated damages for failure to allow the employee to use accrued sick and safe time, court costs, and any attorney fees incurred in the civil action.
    Sec. 9.  NEW SECTION.  91F.9  Employer records.

   1.  An employer shall retain records documenting hours worked by employees and sick and safe time taken by employees, for a period of five years. 
   2.  An employer shall allow the commissioner access to such records, with notice and at a mutually agreeable time, to monitor compliance with the requirements of this chapter.
   3.  If an issue arises as to an employee’s entitlement to sick and safe time under this chapter and the employer does not maintain or retain adequate records according to this section or does not allow the commissioner access to such records, the commissioner or other investigating authority shall presume that the employer has violated this chapter, absent clear and convincing evidence otherwise.
    Sec. 10.  NEW SECTION.  91F.10  Enforcement.
   1.  Upon the written complaint of the employee involved, the commissioner may determine whether to investigate if an employer has violated any provision of this chapter. The commissioner shall keep confidential, to the extent permitted by applicable law, the name of and other identifying information about the employee reporting the alleged violation. However, the commissioner, with the authorization of the complaining employee, may disclose the employee’s name and other information as necessary to enforce this chapter or for other appropriate purposes.
   2.  If for any reason the commissioner makes a determination not to investigate, the commissioner shall notify the complaining employee within fourteen days of receipt of the complaint. The commissioner shall otherwise notify the employee of the determination to investigate within a reasonable time. If it is determined that there is an enforceable claim, the commissioner, with the consent of the complaining employee and with the assistance of the office of the attorney general if the commissioner requests such assistance, shall, unless a settlement is reached, commence a civil action in any court of competent jurisdiction to recover for the benefit of any employee any sick and safe time claims that have been assigned to the commissioner for recovery. The commissioner may also request reasonable and necessary attorney fees. With the consent of the assigning employee, the commissioner may also settle a claim on behalf of the assigning employee.
   3.  Proceedings under this section that precede commencement of a civil action shall be conducted informally without any party having a right to be heard before the commissioner. The commissioner may join various assignments in one claim for the purpose of settling or litigating the assignees’ claims.
   4.  The provisions of subsections 1 and 2 shall not be construed to prevent an employee from settling or bringing an action for damages under section 91F.8 if the employee has not assigned the claim under subsection 2.
   5.  Any recovery of attorney fees, in the case of actions brought under this section by the commissioner, shall be remitted by the commissioner to the treasurer of state for deposit in the general fund of the state. The commissioner is not required to pay any filing fee or other court costs.
    Sec. 11.  NEW SECTION.  91F.11  Confidentiality and nondisclosure.

   1.  An employer may not require disclosure of details relating to domestic abuse assault, sexual abuse, or stalking, or of the details of an employee’s medical condition or that of a family member as a condition of allowing sick and safe time under this chapter.
   2.  If an employer possesses health information or information pertaining to domestic abuse assault, sexual abuse, or stalking about an employee or an employee’s family member, such information shall be treated as confidential and not disclosed except to the affected employee or with the written permission of the affected employee.
    Sec. 12.  NEW SECTION.  91F.12  Other sick and safe time policies —— legal requirements.

   1.  Nothing in this chapter shall be construed to discourage or prohibit an employer from the adoption or retention of a sick and safe time policy that is more generous than that provided in this chapter.
   2.  Nothing in this chapter shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement that provides more generous sick and safe time to an employee than required in this chapter.
   3.  Nothing in this chapter shall be construed as diminishing the rights of public employees regarding sick and safe time or the use of sick and safe time as provided by state law.
   4.  This chapter provides minimum requirements pertaining to sick and safe time and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick and safe time or that extends other protections to employees.
    Sec. 13.  NEW SECTION.  91F.13  Paid sick and safe time —— posting.
   1.  For the purposes of this section, “paid sick and safe time” means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in section 91F.5, but in no instance shall the hourly wage be less than that provided in section 91D.1.
   2.  Employers in this state are encouraged to offer paid sick and safe time to their employees. The department of public health shall create a poster and other informational materials that may be used by an employer for public display if the employer provides paid sick and safe time to all employees in each establishment where the poster and other informational materials are displayed. The poster and other informational materials shall contain all the information required in section 91F.7, subsection 1.
   3.  An employer may apply to the department of public health for authorization to display or distribute the poster and other informational materials created by the department. The department shall verify that an applicant offers paid sick and safe time to all employees in each establishment where the poster and other informational materials will be displayed and is in compliance with the requirements of this chapter. The department shall electronically transmit the poster and other informational materials to any verified applicant. The department shall consult with the commissioner as necessary to carry out the requirements of this section.
    Sec. 14.  Section 91.4, subsection 2, Code 2013, is amended to read as follows:
   2.  The director of the department of workforce development, in consultation with the labor commissioner, shall, at the time provided by law, make an annual report to the governor setting forth in appropriate form the business and expense of the division of labor services for the preceding year, the number of remedial actions taken under chapter 89A, the number of disputes or violations processed by the division and the disposition of the disputes or violations, and other matters pertaining to the division which are of public interest, together with recommendations for change or amendment of the laws in this chapter and chapters 88, 88A, 88B, 89, 89A, 89B, 90A, 91A, 91C, 91D, 91E,
 
91F, 92, and 94A, and section 85.68, and the recommendations, if any, shall be transmitted by the governor to the first general assembly in session after the report is filed.
    Sec. 15.  Section 135.11, Code 2013, is amended by adding the following new subsection:
   NEW SUBSECTION.  32.  In consultation with the labor commissioner, carry out duties relating to the creation and transmission of posters and other informational materials pursuant to section 91F.13.
    Sec. 16.  APPLICABILITY.  Notwithstanding the section of this Act relating to applicability of this Act on or after the effective date of this Act, this Act does not apply to employees under a contract or collective bargaining agreement that was in effect on or before the effective date of this Act.
    Sec. 17.  APPLICABILITY.  This Act applies to all existing employees on and after the effective date of this Act and to all new employees hired on or after that date.
EXPLANATION
   This bill, entitled the “Healthy and Safe Families and Workplace Act”, provides minimum sick and safe time, whether paid or unpaid, for all employees working part-time and full-time in the state in new Code chapter 91F. The bill declares that it is the public policy of the state to protect public health and safety and to promote the general welfare of its citizens by supporting employers in their efforts to encourage employees to work when they are healthy and by protecting the basic rights of workers who safeguard public health by remaining home when they are ill.
   The bill defines several terms including “family member” and “sick and safe time”.
   The bill provides that all employees shall have the right to accrue and use sick and safe time. The formula for accruing sick and safe time is contained in the bill, and there are limits for the amount of sick and safe time an employee may accrue per year, unless the employer sets a higher limit.
   The formula for accruing sick and safe time and the limitations and exceptions are provided in new Code section 91F.4. Sick and safe time shall begin to accrue for new employees on the first day of work and for existing employees on July 1, 2013. New employees may use accrued sick and safe time starting the 60th day of employment. Existing employees may use sick and safe time as it accrues. Sick and safe time shall carry over each year, but an employee may not use more than 144 hours of sick and safe time per year.
   An employer who provides a leave policy that meets the minimum accrual requirements and the same minimum uses and conditions is deemed to be in compliance with the bill. The bill does not require employees to be reimbursed for unused sick and safe time upon separation from employment. However, if an employee is moved or transferred within the company, the employee shall retain all accrued sick and safe time and may use such time immediately. If there is an employment separation, but an employee is rehired within three months, all accrued sick and safe time shall be reinstated upon rehire and be available for immediate use. An employer has the discretion to advance sick and safe time to an employee.
   The bill provides specific reasons for which employees may use the sick and safe time in new Code section 91F.5. An employee shall give reasonable notice to an employer when use of sick and safe time is foreseeable. When an employee uses more than three consecutive days of sick and safe time, an employer may require reasonable documentation that the time used is covered by the reasons the time may be taken as provided in the bill. An employer who requests documentation for use of sick time by an employee without health insurance is responsible for paying all expenses related to acquiring the documentation. For an employee with health insurance, the employer is responsible for paying any costs charged to the employee to receive the documentation. An employer shall not require an employee to find a replacement worker in order to use sick and safe time.
   An employee’s rights under the bill, including the right to use sick and safe time and to file a complaint against an employer, and the prohibitions against an employer’s retaliation against an employee exercising those rights, are explained in new Code section 91F.6.
   Employers are required to give employees notice of their rights to sick and safe time as described in new Code section 91F.7, either by supplying each employee with a notice or by posting such notice in an accessible and obvious place where employees work. Violations of the notice and posting requirements may result in a civil penalty of not more than $100 for each offense.
   An employee may recover the monetary value of owed sick and safe time plus liquidated damages for the wrongful denial of use of accrued sick and safe time if an employer is shown to have intentionally violated the bill pursuant to new Code section 91F.8.
   An employer must retain records documenting hours worked by each employee and the amount of sick and safe time taken by the employees for five years. The labor commissioner shall have reasonable access to these records. If a question arises about an employee’s right to sick and safe time and an employer does not have adequate records or does not allow the commissioner to examine the employer’s records, the commissioner shall presume that the employer has violated the bill.
   Pursuant to new Code section 91F.10, an employee may submit a written complaint to the commissioner, who will determine whether to investigate the claim that an employer has violated any provision of new Code chapter 91F. If the commissioner decides to investigate, the commissioner shall commence a civil action against the employer.
   An employer may not require an employee to disclose details relating to domestic abuse assault, sexual abuse, stalking, or a medical condition as a condition of using sick and safe time. An employer who has such information shall treat the information as confidential and not disclose it without written consent of the affected employee, according to new Code section 91F.11.
   The bill provides that the new Code chapter does not prohibit an employer from providing a more generous sick and safe time policy, does not diminish an employer’s previous contractual obligations for more generous sick and safe time, and does not diminish public employees’ rights to sick and safe time as provided by law.
   The bill encourages employers to offer paid sick and safe time as defined in the bill to their employees. “Paid sick and safe time” is defined to mean time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked. 
   The department of public health, in consultation with the commissioner, is to create a poster and other informational materials which an employer may use for public display if the employer provides sick and safe time to all employees in each establishment where the poster and other informational materials are to be displayed. The poster and other informational materials must comply with the notice requirements for sick and safe time provided in the bill. The department is to make the poster and other informational materials available to an employer upon verification of compliance with the bill.
   The bill applies to all existing employees on and after July 1, 2013, and to all new hires on or after that date, but does not apply to employees under existing contracts or collective bargaining agreements.