The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Carla S. Roberts.
DIGEST
SB 84 Original 2015 Regular Session Peterson
Proposed law creates the "Louisiana Family and Medical Leave Benefits Act" (FMLA).
Proposed law provides for the following definitions:
(1)"Covered individual" means any person who meets all of the following:
(a)Is employed in a job which is subject to withholding payroll taxes for unemployment
compensation benefits.
(b)Has worked the length of time necessary to be entitled to receive unemployment
compensation benefits.
(c)Meets the eligibility requirements to receive family and medical leave insurance
benefits.
(d)Has been employed and payroll taxes have been paid by the employee and the
employer into the La. FMLA Fund.
(e)Submits an application on forms promulgated by the Workforce Commission.
(2)"Commission" means the La. Workforce Commission.
(3)"Director" means the Executive Director of La. Workforce Commission.
(4)"Employer" means that individual, company or other entity which meets the definition of
"employer" under Louisiana law for unemployment benefits except for all of the following:
(a)A self-employed individual who does not elect FMLA coverage.
(b)Any department, office, division, agency, commission, board, committee or other
organizational unit of the state.
(c)Any local government or political subdivision of the state.
(d)An individual, company, or other entity which employs 20 or less employees.
(5)"Family member" means any of the following: (a)A biological, adopted or foster child, stepchild or legal ward, or a child to whom the
employee stands in loco parentis.
(b)A biological, foster, stepparent or adoptive parent, or legal guardian of an employee
or an employee's spouse or a person who stood in loco parentis when the employee
or the employee's spouse was a minor child.
(c)A person to whom the employee is legally married under the laws of La.
(d)A domestic partner of the employee when the employer provides benefits to domestic
partners as part of the employee's benefit compensation package.
(e)A grandparent or step-grandparent of employee or employee's spouse or domestic
partner.
(f)A grandchild or step-grandchild of employee or employee's spouse or domestic
partner.
(g)A biological, foster, or adopted sibling, or the spouse or domestic partner of such a
sibling.
(h)Any other individual related by blood or affinity whose close association with the
employee is the equivalent of a family relationship.
(6)"Serious health condition" means an illness, injury, impairment, or physical or mental
condition that involves inpatient care in a hospital, hospice, or residential medical care
facility or continuing treatment by a health care provider and which injury is not eligible for
workers' compensation benefits.
(7)"Application year" means the 12-month period beginning on the 1st day of the calendar week
in which an individual files an application for family leave insurance benefits.
(8)"Family and medical leave insurance benefits" means the benefits provided under the La.
FMLA.
(9)"Federal Family Medical Leave Act" means that federal law known as the "Family Medical
Leave Act of 1993".
(10)"Qualifying exigency leave" means leave for the family member of a service member of the
military for any of the following reasons:
(a)Leave needed because of notice of seven days or less before deployment.
(b)Leave to attend military events and related activities. (c)Leave to attend child care and school activities if and only if the leave is required
due, indirectly or directly, to the active duty call or active duty status of the family
member.
(d)Leave to make financial and legal arrangements for the service member's absence or
because of the absence.
(e)Leave to attend counseling provided by someone other than a healthcare provider,
provided that the need for counseling arises from the active duty or call to active duty
status of a covered military member.
(f)Leave to spend time with a service member who is on short-term, temporary rest and
recuperation leave during the period of deployment. Eligible employees may take up
to five days of leave for each instance of rest and recuperation.
(g)Leave to attend post deployment activities.
(h)Any leave related to issues that arise out of active duty or a call to active duty that an
employer and employee agree should be covered.
Proposed law provides that, beginning Jan. 1, 2017, La. FMLA insurance benefits are payable to an
individual who is a "covered individual" who meets 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.
(2)Is caring for a family member with a serious health condition.
(3)Has a serious health condition that makes the covered individual unable to perform the
functions of the position of such employee.
(4)Is caring for a qualifying service member who is the covered individual's next of kin.
(5)Has a "qualifying exigency" arising out of the deployment of a family member of the covered
individual.
Proposed law provides that benefits are only payable to an individual who has been employed and
payroll taxes have been paid into the La. FMLA Account Fund by and on behalf of the employee as
provided for in at least one year. The calculation of the length of time needed to be eligible for
FMLA insurance benefits will be the same as the length of time necessary to be eligible for
unemployment compensation benefits.
Proposed law provides that the maximum number of weeks during which FMLA benefits are payable
in an application year is 12 weeks, except if a covered individual receives benefits because the
individual has a serious health condition that makes the covered individual unable to perform the functions at work.
Proposed law provides benefits are not payable for the initial five consecutive calendar days in an
application year that a covered individual would otherwise be eligible for benefits.
Proposed law provides that, if the covered individual uses 10 or more days of paid family and
medical leave benefits in an application year, the covered individual will be paid for the five-day
waiting period. The waiting period need only be served once every application year. Employers may
not force an employee to use accrued leave, such as vacation or sick leave, during the waiting period.
Proposed law provides that the first payment of benefits must be made to an individual within two
weeks after the claim is filed and subsequent payments must be made semimonthly thereafter.
Proposed law provides that the amount of FMLA insurance benefits shall be determined as follows:
(1)The weekly benefit shall be calculated and paid in the same manner as unemployment
compensation.
(2)FMLA insurance benefits are not payable for less than one day or eight consecutive hours
of family and medical leave taken in one work week.
(3)If the IRS determines that family and medical leave insurance benefits are subject to federal
income tax and an individual elects to have federal income tax deducted and withheld from
benefits, the commission shall deduct and withhold the amount specified in the Internal
Revenue Code.
Present law provides that unemployment compensation taxes are to be paid exclusively by the
employer.
Proposed law provides that payroll taxes shall be calculated and withheld in the same manner and
in the same amounts as unemployment compensation, except that the payroll taxes for the FMLA
insurance benefits shall be paid 50% by the employer and 50% by employee.
Proposed law provides that, after a period in which a covered individual receives family and medical
leave insurance benefits, the covered individual is entitled to be restored to an equivalent position
of employment in the same manner as an employee entitled to leave under federal Family Medical
Leave Act, with the employer from whom leave was taken, provided that the covered individual
meets the standards for reinstatement.
Proposed law provides that the covered individual entitled to family and medical leave insurance
benefits shall have their employment benefits continued in a manner identical to that required under
the federal Family and Medical Leave Act for the time that the covered individual is absent from
work and receiving family and medical leave insurance benefits.
Proposed law provides that an employer may not discharge, expel, demote, or take adverse employment action against an employee because the employee filed for, applied for, or used FMLA
benefits or communicated to the employer an intent to file a claim, a complaint, or an appeal, or has
testified or is about to testify for another employee in any proceeding for FMLA.
Proposed law provides, if time taken with wage replacement also qualifies as a reason for leave
under the federal Family Medical Leave Act, time paid for La. FMLA shall run concurrently with
leave taken under the federal FMLA.
Proposed law provides that an employer may require that FMLA payments made be made
concurrently or otherwise coordinated with payment made or leave allowed under the terms of
disability or family care leave under a collective bargaining agreement or employer policy. Proposed
law further provides that the employer must give individuals in its employ written notice of this
requirement.
Proposed law provides that the employer's obligation to comply with a collective bargaining
agreement or employer policy that provides greater leave cannot be diminished to the level of
benefits required in the La. FMLA. Proposed law provides that an employee's right to leave under
the La. FMLA 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 proposed law.
Proposed law provides that any agreement by an individual to waive the individual's rights under this
the La. FMLA is null and void and against public policy.
Proposed law provides that whoever violates a provision of the La. FMLA will be subject to a civil
fine of not less than $20 nor more than $200 dollars. Each day such violation continues shall
constitute a separate offense.
Proposed law provides that a covered individual is disqualified from FMLA insurance benefits for
one year if the individual willfully made a false statement or misrepresentation regarding a material
fact, or willfully failed to report a material fact, to obtain benefits under the FMLA.
Proposed law provides that if FMLA insurance benefits are paid erroneously or as a result of willful
misrepresentation, or if a claim for family and medical leave benefits is rejected after benefits are
paid, the commission may seek repayment of benefits from the recipient. Proposed law provides that
the director shall exercise discretion to waive, in whole or in part, the amount of any such payments
where the recovery would be against equity and good conscience.
Proposed law provides that a self-employed person may elect coverage under the La. FMLA for an
initial period of not less than three years or a subsequent period of not less than one year immediately
following another period of coverage. Proposed law further provides that the self-employed person
must file a notice of election in writing with the director on a form promulgated by the commission
and the election becomes effective on the date of filing the notice.
Proposed law provides that 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 such other times as the commission may prescribe by rule, by filing written notice with the director, such withdrawal to
take effect not sooner than 30 days after filing the notice.
Proposed law provides that the commission shall establish and administer the family and medical
leave insurance program and pay family and medical leave insurance benefits as specified in the La.
FMLA.
Proposed law provides that the commission shall promulgate rules and forms for filing claims for
benefits.
Proposed law provides that the commission shall notify the employer within five business days of
a claim being filed. The commission shall use information sharing and integration technology to
facilitate the disclosure of relevant information or records so long as an individual consents to the
disclosure as required under state law.
Proposed law provides that information contained in the files and records pertaining to an individual
are confidential and not open to public inspection, other than to public employees in the performance
of their official duties. Proposed law, however, provides that the individual or an authorized
representative of an individual may review the records or receive specific information from the
records on the presentation of the signed authorization of the individual.
Proposed law provides that, if the IRS determines that family leave insurance benefits under the La.
FMLA are subject to federal income tax, the commission must advise an individual filing a new
claim for family leave insurance benefits, at the time of filing such claim, all of the following:
(1)The IRS has determined that benefits are subject to federal income tax.
(2)Requirements exist pertaining to estimated tax payments.
(3)The individual may elect to have federal income tax deducted and withheld from the
individual's payment of benefits at the amount specified in the Internal Revenue Code.
(4)The individual is permitted to change a previously elected withholding status.
(5)Amounts deducted and withheld from benefits must remain in the family leave insurance
account until transferred to the federal taxing authority as a payment of income tax.
(6)The director shall follow all procedures specified by the federal internal revenue service
pertaining to the deducting and withholding of income tax.
Proposed law provides that there is created in the state treasury a special fund to be known as the
Louisiana Family and Medical Leave Account Fund. All monies which are deposited or paid into
this fund are appropriated and made available to the director and shall be expended solely for the
purpose of defraying the cost of the administration of the FMLA and the payment of family and
medical leave insurance benefits. Proposed law provides that the fund shall consist of payroll taxes collected pursuant to the La.
FMLA. Proposed law provides that the fund may receive any and all grants, appropriations from the
U.S. government, or any agency thereof, or from any other source, to carry out the purpose of the La.
FMLA.
Proposed law provides that all monies in this fund shall be deposited, administered, and disbursed
in the same manner and under the same conditions and requirements as is provided by law for other
special funds in the state treasury, except that monies in this fund shall not be commingled with other
state funds, but they shall be maintained in a separate account on the books of the depository.
Proposed law provides that the state treasurer shall, in accordance with law, require collateral
security from the depository bank in the full amount of all employment security administration funds
on deposit, and said depository bank is authorized to pledge such collateral security. Proposed law
further provides that the collateral security shall be kept separate and distinct at all times from any
collateral taken by the state treasury for other state funds and that such collateral security shall be
pledged at an amount not to exceed face value. Proposed law provides that any balances in this fund
shall not lapse at any time, but shall be continuously available to the administrator for expenditure
consistent with the purposes of the La. FMLA.
Proposed law provides that whenever, in the judgment of the treasurer, there shall be in the La.
FMLA Fund monies in excess of that amount deemed by the treasurer to be sufficient to meet the
current expenditures, the treasurer shall have full power to invest, reinvest, manage, contract, sell,
or exchange investments acquired with such excess funds in the manner prescribed by La. law.
Proposed law provides that a covered individual shall be entitled, at the option of the employee, to
take this leave on an intermittent leave schedule, except that the employee shall not be entitled to an
intermittent leave schedule for a period exceeding 24 consecutive weeks unless shown to be
medically necessary.
Proposed law provides the employee shall make a reasonable effort to schedule intermittent leave
so as not to disrupt unduly the operations of the employer. The employee shall provide the employer
with prior notice of the care, medical treatment, or continuing supervision by a health care provider
necessary due to a serious health condition of a family member, in a manner which is reasonable and
practicable. Leave taken on an intermittent leave schedule shall not result in a reduction of the total
amount of leave to which an employee is entitled.
Proposed law provides beginning Jan. 1, 2016, the commission shall report quarterly to the Senate
Committee on Labor and Industrial Relations and the House Committee on Labor and Industrial
Relations which committees shall have legislative oversight of program. Proposed law provides that
the report will advise the legislature of projected and actual program participation, premium rates,
fund balances, and outreach efforts by the department.
Proposed law provides that the commission shall conduct a public education campaign to inform
workers and employers regarding the availability of paid family and medical leave. Proposed law
provides the commission may use no more than ½ of 1% of the funds collected for the La. FMLA
program in a given year to pay for the public education program. Proposed law provides that outreach information shall be available in English and other languages spoken by more than five
percent of the state's population as that group's primary language.
Proposed law provides that the commission is encouraged to use state data collection and technology
to the extent possible in order to keep the cost of the program down and to integrate the program
with existing state policies.
Proposed law provides that the legislature finds that Louisiana law has historically provided two
wage replacement programs to provide income security to employees who find themselves unable
to work. First, the unemployment insurance benefit program was enacted for workers who are laid
off from their jobs. Second, the workers' compensation benefits system was enacted to cover workers
who are injured in the course and scope of employment. Historically, however, Louisiana has not
provided for all other hardships which could render an employee unable to work through no fault of
their own; namely those hardships related to an employee's serious sickness or illness, hardships
resulting from a family member serving in the military, or hardships related to any other family
emergency which would lead to a job loss. The purpose of the La. FMLA is to provide for
employment benefits related to all other hardships which an employee may encounter other than job
layoffs and workers' compensation injuries so as to insure that no worker is involuntarily
unemployed due to any fault other than their own.
Effective upon signature of the governor or lapse of time for gubernatorial action if and when the
House of Representatives passes legislation to assess the payroll taxes which would then be collected
to fund the program, except as follows:
(1)All rules and forms promulgated by the Workforce Commission shall be completed before
Jan. 1, 2016.
(2)On January 1, 2016, payroll taxes shall begin being collected and paid by the employer and
employee.
(3)On or after Jan. 1, 2017, applications may be made for payment of benefits.
(Amends R.S. 44:4.1(B)(12); adds R.S. 23:671 through 687)