PRINTER'S NO. 1469
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
580
Session of
2024
INTRODUCED BY ROBINSON, COLLETT, KANE, TARTAGLIONE, BOSCOLA,
HAYWOOD, KEARNEY, COSTA, COMITTA, SCHWANK, LAUGHLIN,
BREWSTER, SANTARSIERO, FARRY, STREET AND FLYNN,
MARCH 28, 2024
REFERRED TO LABOR AND INDUSTRY, MARCH 28, 2024
AN ACT
Establishing the Pennsylvania Family and Medical Leave Program
and the Family and Medical Leave Fund; conferring powers and
imposing duties on the Department of Labor and Industry;
creating a right of action; and imposing penalties.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Legislative intent.
Section 103. Definitions.
Chapter 3. Family and Medical Leave Program
Section 301. Family and Medical Leave Program.
Section 302. Powers and duties of department.
Section 303. Eligibility for family and medical leave benefits.
Section 304. Duration of benefits.
Section 305. Amount of benefits.
Section 306. Contributions.
Section 307. Reduced leave schedule.
Section 308. Employment protections.
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Section 309. Coordination of benefits.
Section 310. Employer waiver to use private plan.
Chapter 5. Administration and Procedures
Section 501. Notice.
Section 502. Erroneous payments and disqualification for
benefits.
Section 503. Elective coverage.
Section 504. Violations.
Section 505. Judicial review.
Section 506. Family and Medical Leave Fund.
Section 507. Annual report.
Section 508. Public education.
Section 509. Advisory Board.
Section 510. Regulations.
Section 511. Right of action.
Chapter 21. Miscellaneous Provisions
Section 2101. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Pennsylvania
Family and Medical Leave Act.
Section 102. Legislative intent.
The General Assembly finds and declares as follows:
(1) Paid family and medical leave promotes the physical
and emotional health of children and their families.
(2) Paid family and medical leave has a positive impact
on economic stability and ensures competitive viability for
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all businesses, but particularly smaller businesses.
(3) The establishment of a paid family and medical leave
program is essential to public health, safety and welfare.
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Abuse of a vulnerable adult." The term includes:
(1) Force or threat of force of inappropriate use of
medications or physical or chemical restraints.
(2) Misuse of power or authority granted to a person
through a power of attorney or by a court in a guardianship
or conservatorship proceeding that results in unreasonable
confinement or restriction of liberty.
(3) An act of violence against, or the taking,
transferring, concealing, harming or disposing of, an
emotional support or service animal owned, possessed or held
by a vulnerable adult.
(4) The failure of a caregiver to provide goods, care or
services essential to avoid a clear and serious threat to the
physical or mental health of a vulnerable adult.
(5) An act or course of conduct by a caregiver against a
vulnerable adult or a vulnerable adult's resources, without
the informed consent of the vulnerable adult or with consent
obtained through misrepresentation, coercion or threats of
force, that results in monetary, personal or other benefit,
gain or profit for the perpetrator or monetary or personal
loss to the vulnerable adult.
(6) The desertion of a vulnerable adult by a caregiver.
(7) Knowingly restricting the movement or independence
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of a vulnerable adult without the vulnerable adult's consent
by removing means of transportation, communication or access
to other activities of daily living, including removing
access to assistive technology, communication devices or
mobility aids.
"Application year." The 12-month period beginning on the
first day of the calendar week in which an individual files a
claim for family and medical leave benefits.
"Attesting third party." A disability service organization
manager or coordinator, caregiver agency coordinator or manager,
law enforcement official, licensed health care professional,
licensed social worker, victim advocate or victim service
provider.
"Authorized reason for leave for a qualifying act of
violence." Leave for a covered individual or to assist a family
member whom the covered individual is caring for, to:
(1) Seek or obtain medical attention, rehabilitative
services, accessibility equipment or other treatment related
to a physical or mental injury or disability caused or
aggravated by the applicable qualifying act.
(2) Recover from a physical or mental injury or
disability caused or aggravated by the applicable qualifying
act.
(3) Seek or obtain services from a victim service
provider in relation to the applicable qualifying act.
(4) Seek or obtain mental health treatment or other
counseling in relation to the applicable qualifying act.
(5) Relocate or engage in the process of securing a new
residence due to the applicable qualifying act, including,
but not limited to, securing temporary or permanent housing
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or enrolling children in a new school.
(6) Seek or obtain financial services or meet with a
financial professional to address financial issues resulting
from the applicable qualifying act.
(7) Seek, obtain or provide child care or care to a
care-dependent adult necessary as a result of the applicable
qualifying act.
(8) Seek or obtain legal services related to or
resulting from the applicable qualifying act.
(9) Prepare for, participate in or attend any civil,
administrative or criminal legal proceeding relating to or
resulting from the applicable qualifying act.
(10) Make modifications to a home or vehicle necessary
to create usability of and accessibility to the home or
vehicle due to an injury sustained in a qualifying act.
(11) Seek or obtain new caregiver services.
(12) Take any other actions necessary to protect or
restore physical, mental, emotional or economic well-being as
a result of the applicable qualifying act.
"Benefits." The monetary allowances payable to a covered
individual as family and medical leave during an approved family
and medical leave under the program in accordance with this act.
"Board." The Pennsylvania Family and Medical Leave Act
Advisory Board established under section 509.
"Claim." The filing of a written application with the
department for the receipt of benefits.
"Covered individual." An employee, or a self-employed person
who elects coverage pursuant to section 503, who meets the
following requirements, as applicable:
(1) Is currently employed in this Commonwealth or was
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previously employed in this Commonwealth within 120 days of
separation from employment.
(2) Meets the employment and income eligibility
requirements under section 303.
(3) Meets the requirements of this act as to the receipt
of benefits.
(4) Submits a claim that is approved by the department.
"Covered service member." A current or former member of the
armed forces of the United States, including a current or former
member of a reserve component of the armed forces of the United
States or the Pennsylvania National Guard, who meets any of the
following requirements:
(1) Is undergoing medical treatment, recuperation or
therapy.
(2) Is otherwise in outpatient status.
(3) Is on the temporary disability retired list for a
serious injury or illness incurred in the line of duty on
active duty in the armed forces of the United States or a
serious injury or illness that existed before the beginning
of the member's active duty that was aggravated by service in
the line of duty on active duty in the armed forces of the
United States, a reserve component of the armed forces of the
United States or the Pennsylvania National Guard.
"Department." The Department of Labor and Industry of the
Commonwealth.
"Domestic violence." The occurrence of any of the following
acts between family or household members as defined in 23
Pa.C.S. § 6102(a) (relating to definitions):
(1) Intentionally, knowingly or recklessly causing, or
attempting to cause, bodily injury, serious bodily injury or
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sexual violence.
(2) Placing another individual in reasonable fear of
imminent serious bodily harm.
(3) An act of domestic and other violence as defined in
55 Pa. Code § 3041.3 (relating to definitions).
(4) The infliction of false imprisonment under 18
Pa.C.S. § 2903 (relating to false imprisonment).
"Employee." An individual who is employed by an employer
doing business in this Commonwealth. The term includes a self-
employed individual.
"Employer." An employer as defined in section 103 of the
Workers' Compensation Act.
"Family." Includes any of the following:
(1) A biological child, adopted or foster child,
stepchild or legal ward, a child of a domestic partner or a
child to whom an employee stands in loco parentis, regardless
of age.
(2) A biological parent, foster parent, stepparent or
adoptive parent or legal guardian of an employee or an
employee's spouse or domestic partner or an individual who
stood in loco parentis when the employee or the employee's
spouse or domestic partner was a minor child.
(3) An individual to whom the employee is legally
married under the laws of any state or a domestic partner of
an employee as registered under the laws of any state or
political subdivision.
(4) A grandparent, grandchild or sibling, whether of a
biological, foster, adoptive or step relationship, of the
employee or the employee's spouse or domestic partner.
(5) An individual who regularly resides in the
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employee's home or where the relationship creates an
expectation that the employee cares for the individual and
that the individual depends on the employee for care. The
term does not include an individual who simply resides in the
same home with no expectation that the employee care for the
individual.
"Family and medical leave." Benefits approved and payable to
covered individuals under the program.
"Fund." The Family and Medical Leave Fund established under
section 506.
"Health care provider." A health care center or a person,
including a corporation, university or other educational
institution licensed or approved by the Commonwealth to provide
health care or professional medical services, including a
physician, certified nurse midwife, mental health care provider,
hospital, nursing home, birth center or any other person
determined by the department to be providing health care
services.
"Leave." The allotted amount of time approved by the
department for the receipt of benefits under this act.
"Medical certification." Written certification from a health
care provider on a form prepared by the department that verifies
the serious health condition prompting the filing of a claim and
receipt of benefits by a covered individual pursuant to this
act.
"Program." The Pennsylvania Family and Medical Leave Program
established under section 301.
"Qualifying act of violence." An act, conduct or pattern of
conduct that could constitute any of the following, regardless
of whether anyone is arrested or charged with committing a
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crime:
(1) Domestic violence.
(2) Sexual violence.
(3) Stalking.
(4) Abuse of a vulnerable adult.
(5) An act or conduct in which a person uses force to
cause or attempt to cause physical or mental injury to
another. This does not include conduct arising out of the
ownership, maintenance or use of a motor vehicle, except when
the person engaging in the conduct intended to cause or
intended to threaten to cause physical or mental injury or
when the person engaging in the conduct was under the
influence of alcohol or a controlled substance.
(6) An act or conduct in which a person makes a
reasonably perceived or actual threat of physical or mental
injury to another. This does not include conduct arising out
of the ownership, maintenance or use of a motor vehicle,
except when the person engaging in the conduct intended to
cause or intended to threaten to cause physical or mental
injury or when the person engaging in the conduct was under
the influence of alcohol or a controlled substance.
"Qualifying exigency leave." Leave for the family member of
a military member deployed at home or abroad for the purposes
specified in 29 CFR 825.126 (relating to leave because of a
qualifying exigency).
"Retaliatory personnel action." One of the following:
(1) Any threat, discipline, discharge, suspension,
demotion, reduction of hours or any other adverse action
taken against an employee for exercising the rights and
protections afforded by this act.
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(2) Interference with or punishment for participating in
or acting on a complaint or appeal under this act.
"Secretary." The Secretary of Labor and Industry of the
Commonwealth.
"Serious health condition." An illness, injury, impairment,
pregnancy, recovery from childbirth or physical or mental
condition as defined in 29 U.S.C. § 2611(11) (relating to
definitions).
"Sexual violence." As defined under 42 Pa.C.S. § 62A03
(relating to definitions).
"Stalking." Conduct in which an individual either:
(1) engages in a course of conduct or repeatedly commits
acts toward another individual, including following the other
individual without proper authority:
(i) under circumstances which demonstrate either an
intent to place the other individual in reasonable fear
of bodily injury or to cause substantial emotional
distress to the other individual; or
(ii) which as a result intentionally, knowingly or
recklessly places the other individual in reasonable fear
of bodily injury or causes substantial emotional distress
to the other individual; or
(2) engages in a course of conduct or repeatedly
communicates to another individual:
(i) under circumstances which demonstrate or
communicate either an intent to place the other
individual in reasonable fear of bodily injury or to
cause substantial emotional distress to the other
individual; or
(ii) which as a result intentionally, knowingly or
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recklessly places the other individual in reasonable fear
of bodily injury or causes substantial emotional distress
to the other individual.
"Statewide average weekly wage." The average amount of
weekly wages as determined by the department on an annual basis
for each calendar year pursuant to the Workers' Compensation
Act, which shall be posted on the department's publicly
accessible Internet website.
"Unemployment Compensation Law." The act of December 5, 1936
(2nd Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment
Compensation Law.
"Victim." Either of the following:
(1) An individual against whom a qualifying act was
committed.
(2) An individual who was physically present at the
scene of a qualifying act and witnessed the qualifying act,
who did not commit the qualifying act and who as a direct
result:
(i) suffers physical or mental injury; or
(ii) reasonably believes that the individual is
under the threat of physical harm.
"Victim advocate." An individual, whether paid or serving as
a volunteer, who provides services to victims under the auspices
or supervision of a victim service provider or a court or a law
enforcement or prosecution agency.
"Victim service provider." An agency or organization that
provides services to victims. The term includes:
(1) A rape crisis center as defined in 42 Pa.C.S. §
5945.1 (relating to confidential communications with sexual
assault counselors).
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(2) A domestic violence program as defined in 23 Pa.C.S.
§ 6102(a).
(3) An agency or organization with a documented history
of providing services to victims.
"Vulnerable adult." An individual who is 18 years of age or
older, is reliant on a caregiver and is unable to protect
against abuse, neglect or exploitation by others because of a
disability or impairment.
"Workers' Compensation Act." The act of June 2, 1915
(P.L.736, No.338), known as the Workers' Compensation Act.
CHAPTER 3
FAMILY AND MEDICAL LEAVE PROGRAM
Section 301. Family and Medical Leave Program.
(a) Establishment of program.--
(1) Within one year of the effective date of this
section, the department shall establish the Pennsylvania
Family and Medical Leave Program.
(2) Except as provided under section 310, no later than
two years following the establishment of the program, the
department shall pay family and medical leave benefits as
specified in this act.
(b) Required documentation.--The department shall establish
reasonable procedures and forms for filing a claim under this
act, the documentation necessary to support a claim and any
certification required from a health care provider for proof of
a serious health condition or any certification required from a
victim of a qualifying act of violence.
(c) Notice of approved claim.--In addition to the notice
provided to an employer by an employee under section 501(d), the
department shall notify the employer within 10 business days of
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an approved claim for benefits under this act.
(d) Information sharing.--Information sharing and
integration technology to facilitate the disclosure of relevant
information or records shall be used as practicable subject to
consent and disclosure requirements under State law.
(e) Confidentiality.--Information contained in the files and
records pertaining to an individual filing a claim under this
act are confidential and shall not be open to public inspection
other than to public employees in the performance of their
official duties.
(f) Cooperation among departments.--To properly effectuate
the provisions of this act, all departments and agencies under
the jurisdiction of the Governor shall fully cooperate with the
department and provide assistance and support as needed to
ensure the timely and efficient delivery of benefits under this
act.
Section 302. Powers and duties of department.
(a) Administration of act.--The department shall be
responsible for the administration of this act and the fund.
Administration of the program for purposes of this section and
section 506 shall include acquisition, development and
operational costs related to information technology,
infrastructure and personnel needed to process claims and issue
benefits pursuant to the act.
(b) Powers and duties.--To fulfill its responsibilities
under this act, the department shall have the following powers
and duties:
(1) Calculate and set the amount of benefits payable to
a covered individual under section 305 initially and on an
annual basis thereafter.
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(2) Provide information to employees and employers on
the amount to be deducted as employee payroll contributions
under section 306 initially and every year thereafter.
(3) Develop and prepare the written notices that
employers must distribute and provide to their employees
pursuant to section 501. The form of the notices shall be
posted on the department's publicly accessible Internet
website.
(4) Prepare and provide the medical certification form
referenced in section 303(f) on the department's publicly
accessible Internet website.
(5) Prepare and provide the necessary forms for filing
and acknowledging a benefits claim and for providing notice
of benefits approval to both employers and covered individual
employees.
(6) Evaluate and adjudicate claims.
(7) Evaluate and determine the amount of payroll
contributions and maximum employee contributions to ensure
fund solvency.
(8) Coordinate benefits with employers that have already
paid for benefits outside the fund.
(9) Make payments on claims.
(10) Develop the abstract for employer posting of notice
in the workplace under section 501, which shall be available
on the department's publicly accessible Internet website.
(11) Prepare and provide the employee complaint form on
the department's publicly accessible Internet website.
(12) Develop forms necessary to ensure implementation of
this act.
(13) Develop procedures to investigate and resolve
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complaints under this act.
(14) Conduct an ongoing public outreach campaign to
inform employers and employees about the availability of the
program and the process for filing a benefits claim.
(15) Promulgate regulations as necessary to administer
this act.
(16) Issue an annual report under section 507.
(c) Enforcement of act.--The secretary shall establish a
system for an administrative complaint and appeals process in
the case of a denial of family and medical leave benefits,
denial of a waiver under section 310, denial of family and
medical leave benefits provided through a private plan under
section 310 and all violations assessed under this act. The
system for administrative complaints and appeals process shall
be established by regulations promulgated by the department.
Procedures to ensure confidentiality of all information related
to any claims filed or appeals taken shall be implemented in
accordance with applicable laws.
Section 303. Eligibility for family and medical leave benefits.
(a) Basis for receipt of benefits.--No later than two years
following the establishment of the program, benefits under this
act shall be payable to a covered individual who files an
approved claim based on any of the following:
(1) Because of birth, adoption or placement through
foster care, is caring for a new child during the first year
after the birth, adoption or placement of that child.
(2) Is caring for a family member with a serious health
condition.
(3) Has a serious health condition, including pregnancy,
that renders the covered individual unable to perform the
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functions of the individual's position.
(4) Is caring for a family member who is a covered
service member due to a qualifying exigency leave in
accordance with the terms of 29 U.S.C. Ch. 28 (relating to
family and medical leave).
(5) Is a victim of a qualifying act of violence or has a
family member who is a victim of a qualifying act of violence
and is taking leave for an authorized reason for leave for a
qualifying act of violence.
(b) Employment and income eligibility requirements.--To be
eligible to file a benefits claim, a covered individual must
have:
(1) Worked at least 18 weeks during the 12-month period
prior to submitting a claim.
(2) Earned at least $2,718 in income during the 12-month
period prior to submitting a claim. This earned income rate
shall be adjusted annually by the department and reflect the
minimum qualifying wage to qualify for benefits under the
Unemployment Compensation Act.
(3) Not been employed by an employer that has been
issued a waiver under section 310.
(c) Proof of wages.--The fund shall not be liable for
payment of benefits unless the amount of wages that the covered
individual earned at the time of the covered individual's leave
is verified under section 305(a)(2) or under this subsection. If
a discrepancy is identified by the department in verifying wages
under section 305(a)(2), the department may request the
following documents from a covered individual to verify wages:
(1) A check, check stub or payroll record.
(2) A tax return, including IRS form W-2 and form 1099,
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or successor forms.
(3) Unemployment compensation records, including form
UC-2A.
(4) Bank statements or records showing regular and
recurring deposits.
(5) Written documentation created contemporaneously with
the payment of wages.
(d) Interaction with the Workers' Compensation Act and the
Unemployment Compensation Law.--To file a benefits claim and
receive benefits under this act, a covered individual may not
receive benefits for the same day under the Workers'
Compensation Act or the Unemployment Compensation Law.
(e) Filing of benefits claim.--An individual seeking
benefits under this act shall submit a claim to the department
providing the required documentation to support a claim for
benefits, including any necessary medical certification or
certification of a qualifying act of violence.
(f) Medical certification.--
(1) A covered individual shall obtain a medical
certification confirming a serious health condition under
subsection (a)(2) or (3) that justifies the filing of a claim
and the receipt of benefits under this act and shall make
that information available to the department on a form
prescribed by the department. When possible, the department
shall use Federal family and medical leave forms. Any
completed medical certification form regarding a covered
individual shall be used solely for the purpose of
adjudicating a claim under this act.
(2) Confidential medical documentation may not be
released by the department unless written authorization is
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provided by an employee or covered individual.
(g) Qualifying act of violence certification.--
(1) The department may require that an employee, within
a reasonable period after the absence, provide documentation
that the employee or the employee's family member is a victim
of a qualifying act of violence. The employee may satisfy the
certification requirement by providing to the department any
of the following:
(i) a copy of a valid court order that restrains the
person alleged to have committed the qualifying act of
violence from contact with the employee or family member
of the employee;
(ii) medical or mental health records indicating
that the employee or family member is a victim of a
qualifying act of violence;
(iii) a police report documenting the act of which
the employee or family member is a victim of a qualifying
act of violence;
(iv) evidence that the person alleged to have
committed the qualifying act of violence has been charged
with or convicted of an act of which the employee or
family member is a victim;
(v) a written certification signed by an attesting
third party that affirms that the employee or family
member is a victim of a qualifying act of violence; or
(vi) any other form of documentation that reasonably
verifies that the employee or the employee's family
member is a victim, including a written statement signed
by the employee or signed by an individual authorized to
act on the employee's behalf.
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(2) Furnishing documentation or providing a
certification under this subsection shall not waive any
confidentiality or privilege that may exist between the
employee or victim and a third party.
(3) The department shall not require that the employee
provide a certification that explains the details of the
qualifying act of violence. The department may not require a
disclosure of the details relating to a qualifying act of
violence or the details of an employee's or employee's family
member's medical condition as a condition of providing leave
under this act.
(4) All information provided to the department under
this subsection shall be retained in the strictest confidence
by the department, except to the extent that disclosure is:
(i) requested or consented to in writing by the
employee; or
(ii) otherwise required by applicable Federal or
State law in which case the department shall provide the
employee notice prior to any authorized disclosure.
(h) Married or domestic partners employed by the same
employer.--Individuals who are legally married or domestic
partners under the laws of any state or political subdivision
and employed by the same employer shall both be eligible for
benefits under this act, even when the leave runs concurrently.
(i) Regulations.--The department shall promulgate
regulations to provide for an adjudication process under this
act.
(j) Determination of eligibility.--Upon receipt of all
necessary documentation to support a claim for benefits from a
covered individual, the department shall determine eligibility
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for benefits under this act within 20 business days.
Section 304. Duration of benefits.
(a) Maximum leave duration of 20 weeks.--The maximum number
of weeks during which benefits are payable under section 303(a)
(1) or (3) in an application year is 20 weeks.
(b) Maximum leave duration of 12 weeks.--The maximum number
of weeks during which benefits are payable under section 303(a)
(2), (4) or (5) in an application year is 12 weeks.
(c) Total maximum duration.--The duration of leave under
subsections (a) and (b) combined may not exceed a total number
of 20 weeks in any one application year regardless of reason.
(d) Initial payment of benefits.--The first payment of
benefits shall be made to a covered individual no later than one
week:
(1) after the claim is filed and approved by the
department; or
(2) from the date the leave is scheduled to commence.
(e) Payment of benefits.--After the initial payment of
benefits, subsequent payments shall be made weekly thereafter
for the duration of the approved leave.
Section 305. Amount of benefits.
(a) Calculation of benefits.--
(1) The benefits payable to a covered individual shall
be calculated as follows:
(i) the portion of a covered individual's average
weekly wage that is equal to or less than 50% of the
Statewide average weekly wage shall be replaced at a rate
of 90%; and
(ii) the portion of a covered individual's average
weekly wage that exceeds 50% of the Statewide average
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weekly wage shall be replaced at a rate of 50%.
(2) The calculation of a covered individual's average
weekly wage shall be as follows:
(i) If at the time the leave commences the wages are
fixed by the week, the amount fixed shall be the average
weekly wage.
(ii) If at the time the leave commences the wages
shall be fixed by the month, the average weekly wage
shall be the monthly wage fixed multiplied by 12 and
divided by 52.
(iii) If at the time the leave commences the wages
are fixed by the year, the average weekly wage shall be
the yearly wage fixed divided by 52.
(iv) If at the time the leave commences the wages
are fixed by any manner not provided under this
subsection, the average weekly wage shall be calculated
by dividing by 13 the total wages earned in the employ of
the employer in each of the highest three of the last
four consecutive periods of 13 calendar weeks in the 52
weeks immediately preceding the leave period, and by
averaging the total amounts earned during these three
periods.
(v) If the covered employee has not been employed by
the employer for at least three consecutive periods of 13
calendar weeks in the 52 weeks immediately preceding the
leave period, the average weekly wage shall be calculated
by dividing by 13 the total wages earned in the employ of
the employer for any completed period of 13 calendar
weeks immediately preceding the leave period, and by
averaging the total amounts earned during the periods.
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(vi) If the employee has worked less than a complete
period of 13 calendar weeks and does not have fixed
weekly wages, the average weekly wage shall be the hourly
wage rate multiplied by the number of hours the employee
was expected to work per week under the terms of
employment.
(vii) Except as provided in subparagraph (v) or
(vi), in occupations which are exclusively seasonal and
therefore cannot be carried throughout the year, the
average weekly wage shall be taken to be one-fifteenth of
the total wages which the employee has earned from all
occupations during the 12 calendar months immediately
preceding the leave, unless it be shown that during the
year, by reason of exceptional causes, the method of
calculation does not clearly provide the earnings of the
employee, in which case the period for calculation shall
be extended so far as to give a basis for the fair
ascertainment of average weekly earnings.
(3) As used in this subsection, the terms "average
weekly wage" and "total wages" shall include board and
lodging received from the employer and gratuities reported to
the United States Internal Revenue Service by or for the
employee for Federal income tax purposes. The terms shall not
include:
(i) Amounts deducted by the employer under the
contract of hiring for labor furnished or paid for by the
employer and necessary for the performance of the
contract by the employee.
(ii) Deductions from wages due to the employer for
rent and supplies necessary for the employee's use in the
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performance of labor.
(iii) Fringe benefits, including employer payments
for or contributions to a retirement, pension, health and
welfare, life insurance, Social Security or any other
plan for the benefit of the employee or the employee's
dependents.
(4) The amount of any bonus, incentive or vacation
payment earned on an annual basis shall be excluded from the
calculations under paragraph (2)(i), (ii), (iii), (iv), (v)
or (vi). Those payments, if any, shall instead be divided by
52 and the amount shall be added to the average weekly wage
otherwise calculated under paragraph (2)(i), (ii), (iii),
(iv), (v) or (vi).
(5) If an employee is working under concurrent contracts
with two or more employers, the wages from all employers
shall be considered.
(b) Limitation.--
(1) In no case shall the weekly benefits payable to a
covered individual be more than the Statewide average weekly
wage.
(2) The application of the Statewide average weekly wage
on a claim shall begin on the date that the basis for the
receipt of benefits under section 303(a) arises.
(3) If a claim carries over from one year into another
and the Statewide average weekly wage is adjusted, the most
recent Statewide average weekly wage shall be used in
calculating all future payments.
(c) Adjustment of benefits calculation.--The department
shall adjust the maximum family and medical leave benefit cap
established in subsection (a) annually based on the Statewide
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average weekly wage and shall transmit notice of the revised
family and medical leave benefit rates to the Legislative
Reference Bureau for publication in the next available issue of
the Pennsylvania Bulletin on an annual basis.
(d) Limit on taking of benefits and nonsequential leave.--
Under this section and section 307, benefits are not payable for
less than eight hours of leave taken in one work week.
Section 306. Contributions.
(a) Payment into the program.--All persons employed in this
Commonwealth, except persons employed by an employer issued a
waiver under section 310, shall be required to contribute to the
program for the purpose of financing the program.
(b) Commencement of payroll contributions.--Payroll
contributions into the fund for the purpose of financing the
program shall commence at least one year prior to the payment of
benefits from the fund to covered individuals.
(c) Calculation of payroll contributions.--The amount
payable through employee payroll contributions shall be set at a
percentage of an individual employee's wages to initiate
payments into the program. The following shall apply:
(1) The payroll contribution shall be calculated using
an actuarial experience study that shall take into account
all available data. The rate shall be set at an amount to
ensure solvency of the fund but shall not exceed 1% of an
individual employee's wages.
(2) Every year thereafter, the department shall evaluate
and determine the amount of payroll contributions and maximum
employee contributions necessary to finance and adequately
support the program.
(3) The payroll contribution rate shall be posted on the
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department's publicly accessible Internet website.
(d) Notification to employers.--The department shall notify
the Department of Revenue to advise employers of the amount
payable through employee payroll contributions.
(e) Penalty for failure to withhold.--Except for an employer
issued a waiver under section 310, an employer who fails to
withhold payroll contributions in accordance with this act shall
be subject to those penalties enforceable through the act of
March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of
1971, for failure to properly withhold wages for income tax and
sales and use tax purposes.
Section 307. Reduced leave schedule.
(a) Taking of nonsequential leave.--A covered individual
shall be entitled to utilize the leave authorized under section
304, at the option of the covered individual, to take leave on
an intermittent or reduced leave schedule in which all of the
leave authorized under this act is not taken sequentially.
Family and medical leave benefits for intermittent or reduced
leave schedules shall be prorated.
(b) Impact on duration of leave.--Nonsequential leave taken
under this section may not result in a reduction in the total
amount of family and medical leave to which a covered individual
is entitled beyond the amount of leave actually taken.
(c) Total amount of leave allowed.--Nothing in this section
shall be construed to enable a covered individual to take more
leave than allowed under section 304.
Section 308. Employment protections.
(a) Restoration of employment position.--A covered
individual who takes leave pursuant to this act shall, upon the
expiration of that leave, be restored by the employer to the
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position previously held by the covered individual when the
leave commenced, or to a position with equivalent seniority,
status, employment benefits, pay and other terms and conditions
of employment.
(b) Health care benefits maintained.--For the duration of a
leave approved under this act, the employer shall maintain any
health care benefits the covered individual had prior to taking
leave as if the covered individual had continued in employment
continuously from the date leave was commenced until the date
the leave terminates. A covered individual shall continue to pay
the covered individual's share of the cost of health benefits as
required prior to the commencement of the leave.
(c) Interference with benefits.--It shall be unlawful for an
employer or any other person to interfere with, restrain or deny
the exercise of, or the attempt to exercise, any protection
afforded under this act.
(d) Retaliation prohibited.--An employer, temporary help
company, employment agency, employee organization or other
person may not take retaliatory personnel action or otherwise
discriminate against a person because the person took any action
in accordance with this act, including:
(1) Applying for or using benefits or taking leave under
this act.
(2) Communicating to the employer or any other person or
entity an intent to file and act on a claim, a complaint or
an appeal with the department or a court of competent
jurisdiction.
(e) Consideration of absence.--It shall be unlawful for an
employer to count leave taken under this act as an absence that
may lead to or result in a retaliatory personnel action.
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(f) Good faith protection.--Protections under this section
shall apply to any person who mistakenly but in good faith
alleges a violation of this act.
Section 309. Coordination of benefits.
(a) Leave concurrent with Federal law.--Leave taken under
this act that also qualifies as leave under 29 U.S.C. Ch. 28
(relating to family and medical leave) shall run concurrently
with leave taken under 29 U.S.C. Ch. 28.
(b) Coordination with other paid leave.--An employee may
elect to utilize paid leave available under any other Federal or
State law, collective bargaining agreement or employer policy
prior to receiving benefits under this act, provided that the
paid leave does not conflict with Federal law. Employers shall
provide employees with written notice of the opportunity to make
the election and inform employees how leave will be coordinated
absent any election.
(c) Employer's obligation.--This act does not diminish an
employer's obligation to comply with any of the following that
provide more generous leave:
(1) A collective bargaining agreement.
(2) An employer policy.
(3) Any other Federal or State law.
(d) Prohibition on subsequent collective bargaining
agreement or employer policy.--An individual's right to leave
and the payment of benefits under this act may not be diminished
by a collective bargaining agreement entered into or renewed, or
an employer policy adopted or retained, after the effective date
of this subsection. Any agreement by an individual to waive the
individual's rights under this act is void as against public
policy.
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(e) Impact on Workers' Compensation Act.--Nothing in this
act shall be construed to impact the provisions of the Workers'
Compensation Act with regard to work-related injuries.
(f) Impact on Public Employe Relations Act.--Nothing in this
act shall be construed to supersede or preempt the rights,
remedies and procedures afforded to employees or labor
organizations under Federal or State law, including the act of
July 23, 1970 (P.L.563, No.195), known as the Public Employe
Relations Act, or any provision of a collective bargaining
agreement negotiated between an employer and an exclusive
representative of the employees in accordance with the Public
Employe Relations Act.
Section 310. Employer waiver to use private plan.
(a) Waiver.--An employer may apply to the department for a
waiver to waive the employer's obligations under this chapter
with a private plan. The application shall be submitted on a
form and in a manner prescribed by the department. The
department shall approve a private plan and issue a waiver under
this section if, in accordance with subsection (b), a private
plan confers all of the same rights, protections and benefits
provided to employees under this chapter and if the employer
provides evidence of a self-funded plan or insurance policy in
effect and has a certificate of authority to transact insurance
under section 208 of the act of May 17, 1921 (P.L.789, No.285),
known as The Insurance Department Act of 1921. The private plan
shall provide:
(1) Benefits to a covered individual under section
303(a)(1) and (3) for the maximum number of weeks required
under section 304(a) in a benefit year.
(2) Benefits to a covered individual under section
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303(a)(2), (4) and (5) for the maximum number of weeks
required under section 304(b) in a benefit year.
(3) Covered individuals, in the aggregate, at least the
maximum number of weeks of benefits in a benefit year as
provided under section 304(c).
(4) A weekly wage replacement rate for each week of
benefits of at least the amount required by section 305(a).
(5) A maximum weekly benefit rate for each week of
benefits of at least the amount specified in section 305(c).
(6) Payment of benefits in accordance with section
303(f) and (g).
(7) The allowance of leave and benefits to be taken
intermittently or on a reduced schedule as authorized by
section 307.
(8) For the adjustment of the maximum weekly benefit cap
in accordance with the notice published annually in the
Pennsylvania Bulletin under section 305(c).
(9) That no additional conditions or restrictions on the
use of leave or benefits beyond those explicitly authorized
by this act or regulations promulgated under this act shall
be imposed.
(10) An employee covered under the private plan who is
eligible to receive benefits under this act, with benefits
under the private plan.
(11) That the cost to employees covered by a private
plan shall not be greater than the cost charged to employees
under section 306(c) and posted on the department's publicly
accessible Internet website under section 306(c)(3).
(b) Additional employer duties.--To be eligible for a waiver
under subsection (a), an employer shall meet all of the
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following requirements:
(1) If the private plan is in the form of self-
insurance, an employer must furnish a bond running to the
Commonwealth, issued by an entity authorized to transact
surety business in this Commonwealth under Article VI(e) of
the act of May 17, 1921 (P.L.682, No.284), known as The
Insurance Company Law of 1921. The form of surety shall be on
a form approved by the department and in an amount required
by the department.
(2) The private plan shall provide for all eligible
employees throughout the employee's period of employment.
(3) If the private plan provides for insurance, the
forms of the policy must be issued by an approved insurer.
(4) An employer that provides a private plan under this
section shall provide each employee with a notice of the
availability of the program. The notice shall be provided to
each employee within five days of approval of a waiver, upon
hire and annually thereafter.
(c) Documentation to be submitted upon approval.--Upon
approval of an application for a waiver:
(1) The employer shall provide to the department all
reports required by regulations promulgated by the
department.
(2) If a waiver is based on the employer having a self-
funded plan, the employer shall provide satisfactory evidence
of maintenance of the form of surety as required by the
department under subsection (b)(1).
(d) Termination of waiver.--If the secretary finds that the
terms and conditions of a private plan granted a waiver under
this section have been violated, the department may terminate
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the waiver. The department shall notify an employer if the
department terminated the employer's waiver. A cause for
termination under this subsection may include one or more of the
following:
(1) Failure to pay benefits.
(2) Failure to pay benefits timely and in a manner
consistent with this act.
(3) Failure to maintain an adequate security deposit.
(4) Misuse of private plan trust funds.
(5) Failure to submit reports as required by regulations
promulgated by the department.
(6) Failure to comply with this section or regulations
promulgated by the department.
(e) Protections and enforcement.--An employee covered under
a private plan shall retain all employee protections under
section 308, enforcement procedures and the appeals process
under section 302(c). The following shall apply:
(1) Applicable enforcement procedures and the appeals
process for benefits by an employer-funded plan shall be
subject to an appeal under section 302(c).
(2) Applicable enforcement procedures and the appeals
process for benefits by an insurance policy shall be subject
to review as outlined in the insurance policy.
(3) If all appeals under the insurance policy have been
exhausted, an individual may appeal to the Insurance
Department on a form and in a manner prescribed by the
Insurance Department.
CHAPTER 5
ADMINISTRATION AND PROCEDURES
Section 501. Notice.
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(a) Employer notice to employees.--Except for an employer
that has been issued a waiver under section 310, upon initial
hiring of an employee, and annually thereafter, an employer
shall provide written notice of the requirements of this act
using the notices prepared and posted by the department under
section 302.
(b) Employer acknowledgment of leave request.--Using the
form prepared by the department under section 302, an employer
shall provide written acknowledgment to an employee when the
employee requests leave under this act. The acknowledgment shall
include:
(1) An explanation of the employee's right to benefits
under this act and the terms for its use.
(2) An explanation of how benefits will be calculated.
(3) The procedure for filing a benefits claim with the
department.
(4) Provisions on job protection and benefits
continuation under section 308.
(5) The prohibition on employer discrimination and
retaliatory personnel action against a person for requesting,
applying for or using leave as provided in section 308.
(6) The employee's ability to file a complaint alleging
a violation of this act.
(c) Public display of notice.--Using the abstract for
employer posting available on the department's publicly
accessible Internet website, an employer shall display and
maintain a poster in a conspicuous place accessible to employees
at the employer's place of business that contains the
information required by this section in English and Spanish,
with consideration to the inclusion of other significant
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languages spoken in the workplace.
(d) Employee notice to employer.--When the need for leave is
known to the employee at least 30 days in advance, the employee
shall provide written or verbal notice to the employer of the
need and schedule for taking leave at least 30 days prior to
taking leave. The employee shall make a reasonable effort to
schedule leave in a manner that does not unduly disrupt the
operations of the employer. For all other absences, the employee
shall notify the employer as soon as practicable, including if
the need arises immediately before or after the employee has
reported for work.
Section 502. Erroneous payments and disqualification for
benefits.
(a) Employee disqualification.--A covered individual is
disqualified from receiving benefits for one year if the
individual is determined by the department to have willfully
made a false statement or misrepresentation regarding a material
fact, or willfully failed to report a material fact, to obtain
benefits under this act.
(b) Incorrect payment of benefits.--
(1) If benefits under this act are paid erroneously
without fault, or for a claim that is subsequently rejected
after benefits are paid, the department may seek repayment
through a reduction in future benefits due the recipient
subject to the following:
(i) Recoupment from future benefits shall not exceed
one-third of the maximum benefit amount due to the
recipient for any week.
(ii) Recoupment from future benefits shall not occur
more than three years after the incorrect payment of
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benefits.
(2) If benefits under this act are paid as a result of
willful misrepresentation by the recipient, the recipient
shall:
(i) Be liable to repay a sum equal to the amount of
benefits derived through that willful misrepresentation.
(ii) Be subject to a penalty in the amount of 50% of
the benefits paid as a result of the misrepresentation.
(iii) Be disqualified for benefits as described
under subsection (a).
(c) Proof of wages.--During the appeals process, if
determination or proof of wages is a factor in a
disqualification or incorrect payment of benefits, a covered
employee's proof of wages may be proven:
(1) as provided under section 303(c);
(2) by testimony of the employer that is presented under
oath at a hearing under section 505; or
(3) by testimony of the covered employee, if found
credible by the judge during a hearing under section 505.
Section 503. Elective coverage.
(a) Self-employed option.--A self-employed person, including
a sole proprietor, partner or participant in a joint venture,
may elect coverage under this act for an initial period of not
less than three years upon meeting all of the following
requirements:
(1) Filing a notice of election in writing with the
department, effective on the date of filing the notice.
(2) Supplying all income information that the department
deems necessary.
(3) Compliance with all eligibility, employment and
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income requirements under section 303.
(b) Withdrawal from coverage.--A self-employed person who
has elected coverage may withdraw from coverage within 30 days
after the end of the three-year period of coverage or at other
times as the department may prescribe. Upon filing written
notice with the department, the self-employed person's
withdrawal from coverage shall take effect no later than 30 days
after filing the notice of withdrawal.
Section 504. Violations.
An employer who violates the requirements of sections 308,
309 or 501 shall be subject to the penalties under 29 U.S.C. §
2617 (relating to enforcement).
Section 505. Judicial review.
Judicial review of any decision regarding the denial of
benefits or an appeal of any violation of this act shall be
permitted in Commonwealth Court as required under 42 Pa.C.S. §
763 (relating to direct appeals from government agencies) after
a party aggrieved thereby has exhausted all administrative
remedies established by the department.
Section 506. Family and Medical Leave Fund.
(a) Fund established.--The Family and Medical Leave Fund is
established as a nonlapsing fund in the State Treasury.
(b) Deposit of money.--Money from employee payroll
contributions paid under section 306 and any financial penalties
imposed under this act shall be deposited into the fund and used
by the department for the administration of the program and the
payment of benefits to covered individuals.
(c) Continuing appropriation.--All money deposited in the
fund and all interest accrued is appropriated to the department
on a continuing basis to administer the program and provide
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benefits under this act.
(d) Limitations on fund.--
(1) No administrative action shall prevent the deposit
of money into the fund in the fiscal year in which the money
is received.
(2) The fund may only be used for the program authorized
under this act. Money in the fund cannot be transferred or
diverted to any other purpose by administrative action.
(e) Other deposits.--The department may deposit into the
fund any other funds received for the purposes under this act.
Section 507. Annual report.
(a) Annual report.--No later than September 1, 2027, and
each September 1 thereafter, the department shall submit a
report to the chair and minority chair of the Labor and Industry
Committee of the Senate and the chair and minority chair of the
Labor and Industry Committee of the House of Representatives,
that includes:
(1) Actual program participation by category as
delineated in paragraph (2), including total number of leaves
taken.
(2) Beneficiary gender for leaves taken.
(3) Types of family members for whom leave was taken to
provide care.
(4) Payroll contribution rate calculations for the
current and previous calendar year and projected rate
calculations for the next three calendar years.
(5) Projected program participation over the next three
calendar years.
(6) Account balances.
(7) The scope and success of outreach efforts.
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(8) Recommendations for improvements to the program.
(b) Public posting of annual report.--The department shall
make the report available on the department's publicly
accessible Internet website. Monthly data should also be made
available online.
Section 508. Public education.
(a) Outreach campaign.--
(1) The department shall conduct a public education
campaign to inform employees and employers regarding the
availability of family and medical leave benefits under this
act.
(2) The department shall allocate at least $500,000 from
the fund annually to pay for a public education program that
informs employees about benefits and eligibility under this
act.
(3) Outreach information shall be available in English,
Spanish and other languages as determined by the department.
(b) Community outreach.--The department may utilize outreach
money to identify and assist appropriate community organizations
in educating hard-to-reach populations or industries, including
low-income employees, employees and employers in industries that
do not typically provide paid family leave and employees and
employers whose primary language is not English.
Section 509. Advisory Board.
(a) Establishment.--The department shall establish the
Pennsylvania Family and Medical Leave Act Advisory Board to
assist in the implementation of the program and ensure effective
public outreach regarding the availability of benefits under
this act.
(b) Composition of board.--The board shall be composed of
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the following:
(1) The secretary or a designee, who shall serve as the
chairperson.
(2) The State Treasurer or a designee.
(3) The Insurance Commissioner or a designee.
(4) The chairperson and minority chairperson of the
Labor and Industry Committee of the Senate or a designee.
(5) The chairperson and minority chairperson of the
Labor and Industry Committee of the House of Representatives
or a designee.
(6) Six members appointed by the secretary representing
an equal number of employers and employees who are residents
of and who work within this Commonwealth.
(c) Terms.--
(1) Members specified under subsection (b)(1), (2), (3),
(4) and (5) shall serve for the length of the member's tenure
in the underlying capacity.
(2) Members appointed under subsection (a)(6) shall
serve four-year terms and shall not be eligible to serve more
than two full consecutive terms.
(d) Quorum.--A majority of the members of the board
participating in person or by video conference shall constitute
a quorum.
(e) Meetings.--The board shall meet at the call of the chair
and shall hold meetings at least biannually.
(f) Public access.--The board shall permit the public to
view or listen to an advisory board meeting through
contemporaneous methods and shall make the recordings available
on the department's publicly accessible Internet website.
(g) Expenses.--Members shall not receive compensation but
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shall be reimbursed for actual expenses incurred in service of
the board.
Section 510. Regulations.
(a) Duty of department.--In addition to the necessary
regulations under sections 302(c) and 303(i), the department may
promulgate additional regulations as necessary to implement and
administer this act.
(b) Publication.--Proposed regulations shall be submitted to
the Legislative Reference Bureau for publication in the next
available issue of the Pennsylvania Bulletin, as required by the
act of July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law, no later than one year after the
effective date of this subsection.
Section 511. Right of action.
(a) Civil action by employee.--An action to recover damages
or other appropriate civil or equitable relief for a violation
of section 308, 309 or 501 may be maintained against an employer
in a court of competent jurisdiction in this Commonwealth by one
or more employees.
(b) Fees and costs.--The court, in an action under this
section, shall, in addition to any judgment awarded to the
plaintiff, allow reasonable attorney fees and other costs of the
action to be paid by the defendant.
(c) Limitations.--An action brought by an employee under
subsection (a) shall terminate on the filing of a complaint by
the secretary in an action under subsection (d).
(d) Civil action by secretary.--The secretary may bring an
action in Commonwealth Court to recover damages and other
appropriate relief.
(e) Money recovered by secretary.--Money recovered by the
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secretary shall be held in a special deposit account and shall
be paid directly to each employee affected within 60 days of
receipt.
CHAPTER 21
MISCELLANEOUS PROVISIONS
Section 2101. Effective date.
This act shall take effect in 180 days.
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