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AN ACT relating to family care leave. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 337.010 is amended to read as follows: 3
(1) As used in this chapter, unless the context requires otherwise: 4
(a) "Commissioner" means the commissioner of the Department of Workplace 5
Standards under the direction and supervision of the secretary of the 6
Education and Labor Cabinet; 7
(b) "Department" means the Department of Workplace Standards in the 8
Education and Labor Cabinet; 9
(c) 1. "Wages" includes any compensation due to an employee by reason of 10
his or her employment, including salaries, commissions, vested vacation 11
pay, overtime pay, severance or dismissal pay, earned bonuses, and any 12
other similar advantages agreed upon by the employer and the employee 13
or provided to employees as an established policy. The wages shall be 14
payable in legal tender of the United States, checks on banks, direct 15
deposits, or payroll card accounts convertible into cash on demand at 16
full face value, subject to the allowances made in this chapter. However, 17
an employee may not be charged an activation fee and the payroll card 18
account shall provide the employee with the ability, without charge, to 19
make at least one (1) withdrawal per pay period for any amount up to 20
and including the full account balance. 21
2. For the purposes of calculating hourly wage rates for scheduled 22
overtime for professional firefighters, as defined in KRS 95A.210(8), 23
"wages" shall not include the distribution to qualified professional 24
firefighters by local governments of supplements received from the 25
Firefighters Foundation Program Fund. For the purposes of calculating 26
hourly wage rates for unscheduled overtime for professional firefighters, 27 UNOFFICIAL COPY 23 RS BR 108
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as defined in KRS 95A.210(9), "wages" shall include the distribution to 1
qualified professional firefighters by local governments of supplements 2
received from the Firefighters Foundation Program Fund; 3
(d) "Employer" is any person, either individual, corporation, partnership, agency, 4
or firm who employs an employee and includes any person, either individual, 5
corporation, partnership, agency, or firm acting directly or indirectly in the 6
interest of an employer in relation to an employee; and 7
(e) "Employee" is any person employed by or suffered or permitted to work for 8
an employer, except that: 9
1. Notwithstanding any voluntary agreement entered into between the 10
United States Department of Labor and a franchisee, neither a franchisee 11
nor a franchisee's employee shall be deemed to be an employee of the 12
franchisor for any purpose under this chapter; and 13
2. Notwithstanding any voluntary agreement entered into between the 14
United States Department of Labor and a franchisor, neither a franchisor 15
nor a franchisor's employee shall be deemed to be an employee of the 16
franchisee for any purpose under this chapter. 17
For purposes of this paragraph, "franchisee" and "franchisor" have the same 18
meanings as in 16 C.F.R. sec. 436.1. 19
(2) As used in KRS 337.275 to 337.325, 337.345, and 337.385 to 337.405, unless the 20
context requires otherwise: 21
(a) "Employee" is any person employed by or suffered or permitted to work for 22
an employer, but shall not include: 23
1. Any individual employed in agriculture; 24
2. Any individual employed in a bona fide executive, administrative, 25
supervisory, or professional capacity, or in the capacity of outside 26
salesman, or as an outside collector as the terms are defined by 27 UNOFFICIAL COPY 23 RS BR 108
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administrative regulations of the commissioner; 1
3. Any individual employed by the United States; 2
4. Any individual employed in domestic service in or about a private 3
home. The provisions of this section shall include individuals employed 4
in domestic service in or about the home of an employer where there is 5
more than one (1) domestic servant regularly employed; 6
5. Any individual classified and given a certificate by the commissioner 7
showing a status of learner, apprentice, worker with a disability, 8
sheltered workshop employee, and student under administrative 9
procedures and administrative regulations prescribed and promulgated 10
by the commissioner. This certificate shall authorize employment at the 11
wages, less than the established fixed minimum fair wage rates, and for 12
the period of time fixed by the commissioner and stated in the certificate 13
issued to the person; 14
6. Employees of retail stores, service industries, hotels, motels, and 15
restaurant operations whose average annual gross volume of sales made 16
for business done is less than ninety-five thousand dollars ($95,000) for 17
the five (5) preceding years exclusive of excise taxes at the retail level 18
or if the employee is the parent, spouse, child, or other member of his or 19
her employer's immediate family; 20
7. Any individual employed as a baby-sitter in an employer's home, or an 21
individual employed as a companion by a sick, convalescing, or elderly 22
person or by the person's immediate family, to care for that sick, 23
convalescing, or elderly person and whose principal duties do not 24
include housekeeping; 25
8. Any individual engaged in the delivery of newspapers to the consumer; 26
9. Any individual subject to the provisions of KRS Chapters 7, 16, 27A, 27 UNOFFICIAL COPY 23 RS BR 108
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30A, and 18A provided that the secretary of the Personnel Cabinet shall 1
have the authority to prescribe by administrative regulation those 2
emergency employees, or others, who shall receive overtime pay rates 3
necessary for the efficient operation of government and the protection of 4
affected employees; 5
10. Any employee employed by an establishment which is an organized 6
nonprofit camp, religious, or nonprofit educational conference center, if 7
it does not operate for more than two hundred ten (210) days in any 8
calendar year; 9
11. Any employee whose function is to provide twenty-four (24) hour 10
residential care on the employer's premises in a parental role to children 11
who are primarily dependent, neglected, and abused and who are in the 12
care of private, nonprofit childcaring facilities licensed by the Cabinet 13
for Health and Family Services under KRS 199.640 to 199.670; 14
12. Any individual whose function is to provide twenty-four (24) hour 15
residential care in his or her own home as a family caregiver, family 16
home provider, or adult foster care provider and who is approved to 17
provide family caregiver services to an adult with a disability through a 18
contractual relationship with a community board for mental health or 19
individuals with an intellectual disability established under KRS 20
210.370 to 210.460 or through a contractual relationship with a certified 21
waiver provider as defined in 907 KAR 7:005 sec. 1(5), or is certified or 22
licensed by the Cabinet for Health and Family Services to provide adult 23
foster care; 24
13. A direct seller as defined in Section 3508(b)(2) of the Internal Revenue 25
Code of 1986; or 26
14. Any individual whose function is to provide behavior support services, 27 UNOFFICIAL COPY 23 RS BR 108
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behavior programming services, case management services, community 1
living support services, positive behavior support services, or respite 2
services through a contractual relationship with a certified waiver 3
provider, as defined in 907 KAR 7:005 sec. 1(5), pursuant to a 1915(c) 4
home and community based services waiver program, as defined in 907 5
KAR 7:005 sec. 1(2); 6
(b) "Agriculture" means farming in all its branches, including cultivation and 7
tillage of the soil; dairying; production, cultivation, growing, and harvesting 8
of any agricultural or horticultural commodity; raising of livestock, bees, 9
furbearing animals, or poultry; and any practice, including any forestry or 10
lumbering operations, performed on a farm in conjunction with farming 11
operations, including preparation and delivery of produce to storage, to 12
market, or to carriers for transportation to market; 13
(c) "Gratuity" means voluntary monetary contribution received by an employee 14
from a guest, patron, or customer for services rendered; 15
(d) "Tipped employee" means any employee engaged in an occupation in which 16
he or she customarily and regularly receives more than thirty dollars ($30) per 17
month in tips; and 18
(e) "U.S.C." means the United States Code. 19
(3) As used in the Section 2 of this Act, unless the context requires otherwise: 20
(a) "Family care leave" means unpaid leave to care for a child or family 21
member of the employee; 22
(b) "Family member" means a: 23
1. Person to whom the employee is related by blood, legal custody, or 24
marriage; 25
2. Child who lives with an employee for whom the employee permanently 26
assumes and discharges parental responsibility; 27 UNOFFICIAL COPY 23 RS BR 108
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3. Person with whom the employee shares, or has shared within the last 1
year, a mutual residence and with whom the employee maintains a 2
committed relationship; or 3
4. Foster child; 4
(c) "Health care provider" means any person licensed under federal or state 5
law to provide health care services; 6
(d) "Same employer" means an office, division, subdivision, or other 7
organizational section of an employer in which both employees have the 8
same or interrelated duties and the absence of both employees would unduly 9
disrupt the conduct of the employer's business; and 10
(e) "Serious health condition" means an illness, injury, impairment, or 11
physical or mental condition that involves either: 12
1. Inpatient care in a hospital, hospice, or residential health care facility; 13
or 14
2. Continuing treatment or supervision by a health care provider or other 15
competent individual. 16
SECTION 2. A NEW SECTION OF KRS CHAPTER 337 IS CREATED TO 17
READ AS FOLLOWS: 18
(1) It shall be an unlawful employment practice for any employer to refuse to grant 19
family care leave of up to twelve (12) work weeks in any twelve (12) month period 20
by an employee if the employee has more than twelve (12) months of service and 21
at least one thousand two hundred fifty (1,250) hours of service with that 22
employer during the previous twelve (12) month period. Family care leave 23
requested pursuant to this section shall be deemed to have been granted by the 24
employer only if it includes a guarantee of employment for the employee in the 25
same or a comparable position upon the termination of the leave. 26
(2) An employee shall be entitled to family care leave described in subsection (1) of 27 UNOFFICIAL COPY 23 RS BR 108
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this section for the: 1
(a) Birth of a child to the employee or to a family member and for whom the 2
employee assumes and discharges parental responsibility; or 3
(b) Care of a family member who has a serious health condition. 4
(3) The entitlement to family care leave under subsection (2)(a) of this section shall 5
expire twelve (12) months after the birth of the child. 6
(4) In the case of a family member who has a serious health condition, family care 7
leave may be taken intermittently when medically necessary as determined by the 8
family member's health care provider. 9
(5) Upon agreement between the employer and the employee, family care leave may 10
be taken on a reduced leave schedule, during which the twelve (12) work weeks of 11
family care leave may be taken over a period not to exceed twenty-four (24) 12
consecutive work weeks. 13
(6) Nothing in this section shall be construed to require an employer to provide paid 14
family care leave, but an employer may permit an employee to use paid leave in 15
the following circumstances: 16
(a) Any paid family, vacation, personal, or compensatory leave provided by an 17
employer that the employee elects to use for family care leave shall count 18
against the twelve (12) work weeks of allowable family care leave; and 19
(b) If an employer has a program that allows an employee to use paid leave of 20
another employee under certain conditions, and the conditions have been 21
met, the employee may use the paid leave as family care leave and the leave 22
shall count against the twelve (12) work weeks of family care leave. 23
(7) If two (2) family members are employees of the same employer, the employer 24
may limit to: 25
(a) Twelve (12) work weeks during a twenty-four (24) month period the 26
aggregate number of family care leave work weeks to which the family 27 UNOFFICIAL COPY 23 RS BR 108
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members are entitled; and 1
(b) Four (4) work weeks during a twenty-four (24) month period the aggregate 2
number of family care leave work weeks to which the family members are 3
entitled to take simultaneously. 4
(8) If the necessity for leave under this section is foreseeable based on the birth of a 5
child or placement of a child with an employee, the employee shall provide the 6
employer with reasonable prior notice of the expected birth or placement of a 7
child with the employee. 8
(9) If the necessity for leave under this section is foreseeable based on planned 9
medical treatment or care, an employee shall: 10
(a) Provide the employer with reasonable prior notice; and 11
(b) Make a reasonable effort to schedule the care in a manner that does not 12
unduly disrupt the operations of the employer. 13
(10) Information that an employee gives to an employer regarding a family member's 14
medical record and a family relationship, pursuant to which the employee seeks 15
to take family care leave under this section, shall be used only to make a decision 16
in regard to the provisions of this chapter. An employer shall keep information 17
regarding the family member's medical record and family relationship 18
confidential. 19
(11) (a) In the event that family care leave is being requested to care for a family 20
member under subsection (2)(b) of this section, an employer may require 21
that the request be supported by a certification issued by the health care 22
provider of the family member. The employee shall provide a copy of the 23
certification to the employer. 24
(b) The certification provided by the employee to the employer shall state: 25
1. The date on which the serious health condition commenced; 26
2. The probable duration of the condition; and 27 UNOFFICIAL COPY 23 RS BR 108
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3. An estimate of the amount of time that the employee is needed to care 1
for the family member. 2
(12) No person shall interfere with, restrain, or deny the exercise of or any attempt to 3
exercise any right provided by this section. 4
(13) An employer shall not retaliate or otherwise discriminate against an employee 5
enforcing his or her rights under this section. 6