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REFERENCE TITLE: employers; paid family leave |
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State of Arizona House of Representatives Fifty-fifth Legislature Second Regular Session 2022
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HB 2499 |
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Introduced by Representative Chávez
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AN ACT
amending Title 23, chapter 2, Arizona Revised Statutes, by adding article 8.2; relating to employment practices.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 23, chapter 2, Arizona Revised Statutes, is amended by adding article 8.2, to read:
ARTICLE 8.2. PAID FAMILY LEAVE
23-385. Definitions
In this article, unless the context otherwise requires:
1. "Adverse action" includes any of the following:
(a) Discharge.
(b) Demotion.
(c) A threat of discharge or demotion.
(d) Any other retaliatory action that results in a change in the terms or conditions of employment and that would dissuade a reasonable employee from exercising a right under this article.
2. "Commission" means the industrial commission of Arizona.
3. "Director" means the director of the commission.
4. "Employee" has the same meaning prescribed in section 23-371.
5. "Employer" has the same meaning prescribed in section 23-362.
6. "Family leave" means a paid leave of absence from employment pursuant to this article.
23-385.01. Family leave; requirements; records
A. An employer shall allow an employee who has been employed by an employer for at least twelve months to take family leave from employment, for up to twelve weeks, for any reason that is covered under the family and medical leave act of 1993 (P.L. 103-3; 107 Stat. 6) without loss of pay or diminution of any privilege, benefit or right arising out of the employee's employment.
B. Family leave shall be provided on the request of an employee. The request may be made orally, in writing, by electronic means or by any other means acceptable to the employer. When possible, the request shall include the expected duration of the absence.
C. When the use of family leave is foreseeable, the employee shall make a good faith effort to provide notice of the need for family leave to the employer in advance of the use of the family leave and shall make a reasonable effort to schedule the use of family leave in a manner that does not unduly disrupt the operations of the employer.
D. An employer that requires notice of the need to use family leave where the need is not foreseeable shall provide a written policy that contains procedures for the employee to provide notice. An employer that has not provided to the employee a copy of its written policy for providing such notice may not deny family leave to the employee based on noncompliance with the policy.
E. An employer may not require, as a condition of an employee's taking family leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using family leave.
F. An employer may require an employee who requests or obtains family leave to provide reasonable documentation to verify the employee's eligibility for family leave.
G. An employer may not take adverse action against an employee for requesting or obtaining family leave that is authorized under this article.
H. An employer shall reinstate an employee who takes family leave to the employee's original position on conclusion of the employee's family leave. A small employer may reinstate an employee who takes family leave to the employee's original position or to a comparable position with comparable pay, benefits and other terms and conditions of employment. For the purposes of this subsection, "small employer" means any employer with ten or fewer employees.
I. An employer shall keep a record of any family leave that an employee takes pursuant to this article and retain the record for at least three years. After giving the employer notice and determining a mutually agreeable time for inspection, the director shall inspect a record kept pursuant to this subsection for the purpose of determining the employer's compliance with this article. If an employer fails to retain a record as required under this subsection or to allow the director to inspect the records, the director shall take action pursuant to section 23-385.03.
J. Family leave taken pursuant to this article must be taken concurrently with leave taken pursuant to the family and medical leave act of 1993 (P.L. 103-3; 107 Stat. 6).
23-385.02. Notice requirements; civil penalty
A. Employers shall give employees written notice of all of the following at the commencement of employment or by July 1, 2023, whichever is later:
1. Employees are entitled to family leave pursuant to this article.
2. The amount of family leave employees are entitled to under this article.
3. The terms of the use of family leave as guaranteed under this article.
4. That retaliation against employees who request or use family leave is prohibited.
5. That each employee has the right to file a complaint if family leave as required by this article is denied by the employer or the employee is subjected to retaliation for requesting or taking family leave.
6. The contact information for the commission where questions about rights and responsibilities under this article can be answered.
B. The notice required in subsection A of this section shall be in English, Spanish and any other language that is deemed appropriate by the commission.
C. The amount of family leave available to an employee, the amount of family leave taken by an employee to date in the year and the amount of pay the employee has received as family leave shall be recorded in, or on an attachment to, the employee's regular paycheck.
D. The commission shall create and make available to employers, in English, Spanish and any other language deemed appropriate by the commission, model notices that contain the information required under subsection A of this section for employers' use in complying with subsection A of this section.
E. Any employer who violates the recordkeeping, posting or other requirements that the commission establishes under this section is subject to a civil penalty of at least $250 for a first violation, and at least $1,000 for each subsequent or wilful violation and may, if the commission or court determines appropriate, be subject to special monitoring and inspections.
23-385.03. Enforcement
A. On receipt of a written complaint from an employee, the director shall investigate whether the employer has violated this article.
B. There is a rebuttable presumption that an employer has violated this article if the employer takes adverse action against an employee within ninety days after the employee does any of the following:
1. Files a complaint with the director alleging a violation of this article or brings a civil action under this section.
2. Informs a person about the employer's alleged violation of this article.
3. Cooperates with the director or another person in the investigation or prosecution of the employer's alleged violation of this article.
4. Opposes a policy or practice of the employer or an act of the employer that is prohibited under this article.
C. An employer may overcome the rebuttable presumption established pursuant to subsection B of this section with clear and convincing evidence that the employer took adverse action against the employee for a reason other than those prescribed in subsection B of this section.
D. If the director determines that an employer has violated this article, the director shall do any of the following:
1. Attempt to informally resolve any pertinent issue through mediation.
2. With the written consent of the employee, request the attorney general to bring an action on behalf of the employee in accordance with this section.
3. Bring an action on behalf of an employee in the county where the violation allegedly occurred.
E. An employee may bring a civil action in a court of competent jurisdiction against the employee's employer for a violation of this article regardless of whether the employee first filed a complaint with the director.
F. An action brought under subsection D or E of this section must be filed within three years after the occurrence of the act on which the action is based.
G. If a court finds that an employer violated this article in an action brought under subsection D or E of this section, the court may award the employee all of the following:
1. The full monetary value of any unpaid family leave that the employee was unlawfully denied. Unpaid family leave awarded pursuant to this paragraph shall be paid to the employee without cost to the employee.
2. Actual economic damages suffered by the employee as a result of the employer's violation of this article.
3. An additional amount of not more than three times the damages awarded under paragraph 2 of this subsection.
4. Reasonable attorney fees and other costs.
5. Any other relief that the court deems appropriate, including reinstatement of employment, back pay and injunctive relief.
H. If the action was brought by the attorney general under subsection D, paragraph 2 of this section, the court shall order the employer to pay at least $1,000 per violation to this state.
23-385.04. Encouragement of more generous paid family leave policies; no effect on more generous policies or laws
This article does not:
1. Discourage or prohibit an employer from adopting or retaining a paid family leave policy more generous than the one required in this article.
2. Diminish the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement that provides more generous paid family leave to an employee than required in this article.
3. Diminish the rights of public employees regarding paid family leave.
4. Supersede any provision of any local law that provides greater rights to paid family leave than the rights established under this article.
23-385.05. Family leave as supplement to earned paid sick time
Family leave supplements earned paid sick time provided under article 8.1 of this chapter. An employer may not supplant earned paid sick time provided under article 8.1 of this chapter with family leave.
23-385.06. Rules
The commission may coordinate implementation and enforcement of this article and shall adopt appropriate guidelines or rules for these purposes.
Sec. 2. Effective date
This act is effective from and after May 31, 2023.