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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 1615 By: Bennett
AS INTRODUCED
An Act relating to labor; defining terms; providing
criteria for family and medical leave insurance
benefits; providing for maximum numb er of weeks
allowed; providing for waiting period; providing for
determination of family and medical leave insurance
benefits; authorizing payroll contributions;
providing for ratio amounts of contribution; allowing
intermittent or reduced leave schedule; providing for
restoration of position; requiring employer to
maintain health care benefits; making certain acts
unlawful; prohibiting retaliatory action; providing
certain leave run concurrently with federal leave;
prohibiting diminishment of certain right s; requiring
certain written notice from employer; establishing
system for appeals; providing for judicial review;
providing for disqualification of certain
individuals; authorizing repayment of benefits based
on misrepresentation; allowing certain persons
coverage for time certain; requiring Depart ment of
Labor to administer program ; authorizing adoption of
rules; providing for tax implications; creating the
Family and Medical Leave Insurance Fund; requiring
certain report to Legislature; directing Departm ent
of Labor to conduct public education campaign;
encouraging use of state data collection and
technology; providing for codification; and providing
an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 901 of Title 40, unless there is
created a duplication in numbering, reads as follows:
As used in this act:
1. "Application year" is the twelve-month period beginning on
the first day of the calendar week in which an individual files an
application for family and medical leave insurance benefits;
2. "Covered active duty" is as defined in Section 101(14) of
the Family and Medical Leave Act, 29 U.S.C. 2611(14);
3. "Covered individual" is any person who:
a. worked for twenty (20) calendar weeks for any employer
during the twelve-month period prior to submitting an
application, or
b. earned one thousand (1,000) times the state minimum
wage from work during the twelve -month period prior to
submitting an application, or
c. is self-employed, elects coverage and meets the
requirements of Section 13 of this act, and
d. meets the administrative requirements outlined in this
act and in regulations, and
e. submits an application.
4. "Covered servicemember " is as defined in Section 101(15) of
the Family and Medical Leave Act, 29 U.S.C., Section 2611(15);
5. "Department" is the Department of Labor;
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6. "Director" is the Director of the Department;
7. "Employee" is as defined in Section 197.4 of Title 40 of the
Oklahoma Statutes;
8. "Employer" is as defined in Section 197.4 of Title 40 of the
Oklahoma Statutes;
9. "Family and medical leave insurance benefits " are the
benefits provided under the terms of this act;
10. "Family member" is:
a. regardless of age, a biological, adopted or foster
child, stepchild or legal ward, a child of a domestic
partner, a child to whom the covered ind ividual stands
in loco parentis or a person to whom the covered
individual stood in loco parent is when the person was
a minor,
b. a biological, adoptive or foster parent, stepparent or
legal guardian of a covered individual or a covered
individual's spouse or domestic partner or a person
who stood in loco parentis when the covered individual
or the covered individual's spouse or domestic partner
was a minor child,
c. a person to whom the covered individual is legally
married under the laws of any state or a domestic
partner of a covered individual as registered under
the laws of any state or politica l subdivision,
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d. a grandparent, grandchild or sibling, whether a
biological, foster, adoptive or step relationship, of
the covered individual or the covered individual 's
spouse or domestic partner, or
e. a designated person which shall mean one additional
person designated by a covered individual for whom the
covered individual will provide care under this act if
the designated person has a serious health condition;
11. "Health care provider " is any person licensed under federal
or state law to provide me dical or emergency services, including,
but not limited to, doctors, nurs es and emergency room personnel or
certified midwives;
12. "Next of kin" is as defined in Section 101(17) of the
Family and Medical Leave Act, 29 U.S.C. 2611(17);
13. "Qualifying exigency leave" is leave for the family member
of a military member for the purposes specified in subsections (i)
through (iv) of 29 C.F.R. 825.126(b)(3) and subsections (i) through
(iv) of 29 C.F.R. 825.126(b)(8), as well as the following reasons:
a. to address any issue that arises from the fact that
the military member is notified of an impending call
or order to covered active duty seven (7) or less
calendar days prior to the date of deployment. Leave
taken for this purpose can be used for a period of
seven (7) calendar days beginning on the date the
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military member is notified of an impending call or
order to covered active duty,
b. to attend any official ceremony, program or event
sponsored by the military that is related to the
covered active duty or c all to covered active duty
status of the military member,
c. to attend family support or assistance programs and
informational briefings sponsored or promoted by the
military, military service organizations or the
American Red Cross that are related to the covered
active duty or call to covered active duty status of
the military member,
d. to make or update financial or legal arrangements to
address the military member 's absence while on covered
active duty or call to covered active duty status,
such as preparing and executing financial and health
care powers of attorney, transferring bank account
signature authority, enrolling in the Defense
Enrollment Eligibility Reporting System (DEERS),
obtaining military identification cards or preparing
or updating a will or living trust,
e. to act as the military member 's representative before
a federal, state or local agency for purposes of
obtaining, arranging or appealing military service
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benefits while the military member is on covered
active duty or call to covere d active duty status, and
for a period of ninety (90) days following the
termination of the military member 's covered active
duty status,
f. to attend counseling provided by someone other than a
health care provider, for oneself, for the military
member, or for the biological, adopted or foster
child, stepchild or legal ward of the military member,
a child of the military member 's domestic partner or a
child to whom the military member stands in loco
parentis, provided that the need for counseling arises
from the covered active duty or call to covered active
duty status of the military member,
g. to spend time with the military member who is on
short-term, temporary, Rest and Recuperation leave
during the period of deployment. Leave taken for this
purpose can be used for a period of fifteen (15)
calendar days beginning on the date the military
member commences each instance of Rest and
Recuperation leave,
h. to attend arrival ceremonies, reintegration briefings
and events and any other official ceremony or p rogram
sponsored by the military for a period of ninety (90)
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days following the termination of the military
member's covered active duty status,
i. to address issues that arise from the death of the
military member while on covered active duty status,
such as meeting and recovering the body of the
military member, making funeral arrangements and
attending funeral services,
j. to address other events which arise out of the
military member's covered active duty or call to
covered active duty status, provided that the employer
and employee agree that such leave shall qualify as an
exigency and agree to both the timing and duration of
such leave;
14. "Retaliatory personnel action " means denial of any right
guaranteed under this act, including, but not limited t o, any
threat, discharge, suspension, demotion, reduction of hours, any
other adverse action against an employee for the exercise of any
right guaranteed herein, or reporting or threatening to report an
employee's suspected citizenship or immigration statu s or the
suspected citizenship or immigration status of a family member of
the employee to a federal, state or local agency. Retaliatory
personnel actions shall also include interference with or punishment
for an investigation, proceeding or hearing under this act; and
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15. "Serious health condition " is an illness, injury,
impairment, pregnancy, recovery from childbirth, or physical or
mental condition that involves inpatient care in a hospital, hospice
or residential medical care facility, or continuing t reatment by a
health care provider.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 902 of Title 40, unless there is
created a duplication in numbering, reads as follows:
Beginning twelve (12) months following establishment of the
Family and Medical Leave Insurance Program, family and medical leave
insurance benefits are payable to an individual who:
1. Meets the definition of "covered individual" under Section 1
of this act; and
2. Meets one of the following requirements:
a. 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,
b. is caring for a family member with a serious health
condition,
c. has a serious health condition, including pregnancy,
that makes the covered individual unable to perform
the functions of the position of such employee,
d. is caring for a covered servicemember who is the
covered individual's next of kin,
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e. because of any qualifying exigency leave arising out
of the fact that the family member of the covered
individual is on covered active duty or has been
notified of an impending call or order to covered
active duty in the Armed Forces, or
f. any reason set forth in this act.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 903 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. 1. The maximum number of weeks during which family and
medical leave insurance benefits are payable under subparagraph c of
paragraph 2 of Section 2 of this act in an application year is eight
(8) weeks.
2. The maximum number of weeks during which family and medical
leave insurance benefits are payable under subparagraph a, b, d or e
of paragraph 2 of Section 2 of this act in an application year is
four (4) weeks.
3. A covered individual is eligible for eight (8) weeks of
leave under paragraph 1 of this subsection and also four (4) we eks
of leave under paragraph 2 of this subsection in an application
year.
B. Family and medical leave insurance benefits are not payable
for the first five (5) calendar days in an application year that a
covered individual meets the eligibility requiremen ts of paragraphs
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1 and 2 of Section 2 of this act. This shall be known as the
waiting period referred to in paragraph 3 of this section.
C. If the covered individual uses ten (10) or more days of
family and medical leave insurance benefits in an applicat ion year,
the covered individual shall be paid for the waiting period. The
waiting period need only be served once every application year.
D. The first payment of benefits must be made to an individual
within four (4) weeks after the claim is filed and s ubsequent
payments must be made semimonthly thereafter.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 904 of Title 40, unless there is
created a duplication in numbering, reads as follows :
A. The amount of family and medical leave insurance benefits
shall be determined as follows:
1. The weekly benefit shall be fifty percent (50%) of the
covered individual's average weekly wages during the twelve (12)
months preceding submission of th e application or the average weekly
wages during the time the covered individual worked if it was less
than twelve (12) month s up to a maximum of fifty percent (50%) of
the statewide average weekly wage; or
2. In no case shall the weekly benefit be less than Five
Hundred Dollars ($500.00).
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B. Family and medical leave insurance benefits are not payable
for less than eight (8) hours of family and medical leave taken in
one workweek.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 905 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. Payroll contributions shall be authorized in order to
finance the payment of benefits under the family and medical leave
insurance program.
B. Payroll contributions shall be paid by employers and
employees in the ratio of 1:1 in an amount to be determined by the
State Treasurer. The State Treasurer shall be responsible for
evaluating and determining on an annual basis the amount of payroll
contributions and maximum employee contribution s necessary to
finance the family and medical leave insurance benefits program.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 906 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. A covered individual shall be entitled, at the option of the
covered individual, to take paid family and medical leave on an
intermittent or reduced leave schedule in w hich all of the leave
authorized under this act is not taken sequentially. Family and
medical leave insurance benefits for intermittent or reduced leave
schedules shall be prorated.
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B. The covered individual shall make a reasonable effort to
schedule paid family and medical leave under this section so as not
to unduly disrupt the operations of the employer. The covered
individual shall provide the employer with prior notice of the
schedule on which the covered individual will be taking the leave,
to the extent practicable. Paid family and medical leave taken
under this section shall not result in a reduction of the total
amount of leave to which an employee is entitled beyond the amount
of leave actually taken.
C. Nothing in this section shall be constr ued to entitle a
covered individual to more leave than required under Section 3 of
this act.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 907 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. Any covered individual who exercises his or her right to
family and medical leave insurance benefits or earns waiting period
credits under paragraph 3 of subsection A of Section 3 of this act
shall, upon the expir ation of that leave, be entitled to be restored
by the employer to the position held by the covered indi vidual when
the leave commenced or to a position with equivalent seniority,
status, employment benefits, pay and other terms and conditions of
employment, including fringe benefits and service credits that the
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covered individual had been entitled to at the commencement of
leave.
B. During any leave taken pursuant to Section 2 of this act,
the employer shall maintain any health care benefits the covered
individual had prior to taking such leave for the duration of the
leave as if the covered individual had continued in employment
continuously from the date he or she commenced the leave until the
date the family and medical leave insurance benefits terminat e;
provided, however, that the 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.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 908 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. It shall be unlawful for an employer or any other person to
interfere with, restrain, or deny the exercise of, or th e attempt to
exercise any right protected under this act.
B. An employer, temporary help company, employment agency,
employee organization or other person shall not take retaliatory
personnel action or otherwise discriminate against a person because
he or she exercised rights protected under this act. Such rights
include, but are not limited to, the right to request, file for,
apply for or use benefits provided for under this act; communicate
to the employer or any other person or entity an intent to file a
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claim, a complaint with the Department of Labor or courts, or an
appeal, or has testified or is about to testify or has assisted in
any investigation, hearing or proceeding under this act, at any
time, including during the waiting period and the period in w hich
the person receives family and medical leave insurance benefits
under this act; inform any person about any employer 's alleged
violation of this act; and the right to inform any person of his or
her rights under this act.
C. It shall be unlawful for an employer's absence control
policy to count paid family and medical leave taken under this act
as an absence that may lead to or result in discipline, discharge,
demotion, suspension or any other adverse action.
D. Protections of this section shall appl y to any person who
mistakenly but in good faith alleges violations of this act.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 909 of Title 40, unless there is
created a duplication in nu mbering, reads as follows:
A. 1. Leave taken with wage replacement under this act that
also qualifies as leave under the federal Family and Medical Leave
Act (FMLA) shall run concurrently with leave taken under the federal
FMLA.
2. An employer may requi re that payment made pursuant to this
act be made concurrently or otherwise coordinated with payment made
or leave allowed under the terms of disability or family care leave
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under a collective bargaining agreement or employer policy. The
employer must give employees written notice of this requirement.
B. 1. This act shall not diminish an employer 's obligation to
comply with any of the following that provide more generous leave:
a. a collective bargaining agreement,
b. an employer policy, or
c. any law.
2. An individual's right to leave 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 act. Any agreement by an individual to waive
his or her rights under this act is void as against public policy.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 910 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. Each employer shall provide written notice to each employee
upon hiring and annually thereafter. An employer shall also provide
written notice to an employee when the employe e requests leave under
this act or when the employer acquires kno wledge that an employee 's
leave may be for a qualifying reason under paragraph 2 of Section 2
of this act. Such notice shall include:
1. The employee's right to family and medical leave insurance
benefits under this act and the terms under which it may b e used;
2. The amount of family and medical leave insurance benefits;
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3. The procedure for filing a claim for benefits;
4. The procedure for selecting a designated person as defined
in this act;
5. The right to job protection and benefits continuation under
Section 7 of this act;
6. That discrimination and retaliatory personnel actions
against a person for requesting, applying for or using family and
medical leave insurance benefits are prohibited under Section 8 of
this act; and
7. That the employee has a right to file a complaint for
violations of this act.
An employer shall also 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 any language that is the first language spoken by at
least thirty percent (30%) of the employer 's workforce, provided
that such notice has been provided by the Department of Labor. The
Director of the Departments may adopt regulations to establ ish
additional requirements concerning the means by which employers
shall provide such notice.
B. An employer may establish a uniform process for employees to
select a designated person as defined in this act within thirty (30)
days of the individual 's date of hire. Thereafter, the employer
must permit the employee to make or change such a designation, as
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applicable, on an annual basis. If an employer establishes a
uniform process, the covered employee must make such a designation
using the employer's process. If an employer does not establish
such a uniform process, the employee may make such a designation
when filing a claim for benefits.
C. Employees shall provide notice to their employers as soon as
practicable of their intention to take leave under this act.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 911 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. The Director of the Department of Labor shall establish a
system for appeals in the case of a denial of family and medical
leave insurance benefits. In establishing such system, the Director
may utilize any and all procedures and appeals mechanisms
established under the Employment Security Act of 1980.
B. Judicial review of any decision with respect to family and
medical leave insurance benefits shall be permitted in a court of
competent jurisdiction after a party aggrieved thereby has exhausted
all administrative remedies established by the D irector.
C. The Director shall implement procedures to ensure
confidentiality of all information related to any claims filed or
appeals taken to the maximum extent permitted by applicable laws.
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SECTION 12. NEW LAW A new section of l aw to be codified
in the Oklahoma Statutes as Section 912 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. A covered individual is disqualified from family and medical
leave insurance benefits for one (1) year if the i ndividual is
determined by the Director of the Department of Labor 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. If family and medical leave insurance benefits are paid
erroneously or as a result of willful misre presentation or if a
claim for family and medical leave insurance benefits is rejected
after benefits are paid, the Department may seek repayment of
benefits from the reci pient. The Director shall exercise his or her
discretion to waive, in whole or in part, the amount of any such
payments where the recovery would be against equity and good
conscience.
SECTION 13. NEW LAW A new section of law to be c odified
in the Oklahoma Statutes as Section 913 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. A self-employed person, including a sole proprietor, partner
or joint venturer, may elect coverage under this act for an initial
period of not less than three (3) years. The self -employed person
must file a notice of election in writing with the Director of the
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Department of Labor, as required by the Department of Labor. The
election becomes effective on the date of filing the notice. As a
condition of election, the self -employed person must agree to supply
any information concerning income that the Department deems
necessary.
B. A self-employed person who has elected coverage may withdraw
from coverage within thirty (30) days after the end of the three -
year period of coverage, or at such other times as the Director may
prescribe by rule, by filing written notice with the Director, such
withdrawal to take effect not sooner than thirty (30) days after
filing the notice.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 914 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. Within twelve (12) months of the effective date of th is act,
the Department of Labor shall establish and administer a family and
medical leave insurance program and within twelve (12) months
following establishment of the program pay family and medical leave
insurance benefits as specified in this act.
B. The Department shall establish reasonable procedures and
forms for filing claims for benefits under this act and shall
specify what supporting documentation is necessary to support a
claim for benefits, including any documentation required from a
health care provider for proof of a serious health condition.
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C. The Department shall notify the employer within five (5)
business days of a claim being filed pursuant to this act.
D. The Department 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.
E. Information contained in the files and records pertaining to
an individual under this act are confidential an d not open to public
inspection other than to public employees in the performance of
their official duties. However, the individual or an authorized
representative of an individual may review the records or receive
specific information from the records upon the presentation of the
individual's signed authorization.
F. The Director shall adopt rules as necessary to implement
this act.
SECTION 15. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 915 of Title 4 0, unless there is
created a duplication in numbering, reads as follows:
A. If the Internal Revenue Service determines that family and
medical leave insurance benefits under this act are subject to
federal income tax, the Department of Labor shall advise an
individual filing a new claim for family and medical leave insurance
benefits, at the time of filing such claim, that:
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1. The Internal Revenue Service 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 in the amount
specified in the federal Internal Revenue Code; and
4. The individual is permitted to change a pr eviously elected
withholding status.
B. If the individual elects to have federal tax payments
withheld, the Department shall deduct and withhold the amount
specified in the Internal Revenue Code in a manner consistent with
[laws of the state], and amounts deducted and withheld from benefits
must remain in the Family and Medical Leave Insurance Fund
established in Section 16 of this act until transferred to the
federal taxing authority as a payment of income tax.
C. The Director shall follow all procedures specified by the
Internal Revenue Service pertaining to the deducting and withholding
of income tax.
SECTION 16. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 916 of Title 40, unless there is
created a duplication in numbering, reads as follows:
A. The Family and Medical Leave Insurance Fund is created in
the custody of the State Treasurer. Expenditures from the fund may
be used only for the purposes of the family and medical leave
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insurance benefits program. Only the Director of the Department of
Labor or the Director's designee may authorize expenditures from the
fund.
B. Whenever, in the judgment of the State Treasurer, there
shall be in the Family and Medical Leave Insurance Fund an amount of
funds in excess of that amount deemed by the State Treasurer to be
sufficient to meet the current expenditures properly payable
therefrom, the State Treasurer shall have full power to invest,
reinvest, manage, contract, sell or exchange investments acquire d
with such excess funds in the manner prescribed by state law.
SECTION 17. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 917 of Title 40, unless there is
created a duplication in numbering, reads as follows:
Beginning January 1, 2021, the Department shall report to the
Legislature by September 1 of each year on projected and actual
program participation by paragraph 2 of Section 2 of this act
purpose, gender of beneficiary, premium rates, fund balanc es,
outreach efforts, and, for leaves taken under subparagraph b of
paragraph 2 of Section 2 of this act, including the family members
for whom leave was taken to provide care.
SECTION 18. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 918 of Title 40, unless there is
created a duplication in numbering, reads as follows:
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The Department of Labor shall conduct a public education
campaign to inform workers and employers regarding the availability
of family and medical leave insurance benefits. The Department of
Labor may use ten percent (10%) of the funds collected for the
family and medical leave insurance benefits program in a given year
to pay for the public education program. Outreach information sha ll
be available in English and other languages spoken by more than
thirty percent (30%) of the state 's population.
SECTION 19. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 919 of Title 40, unless th ere is
created a duplication in numbering, reads as follows:
The Department of Labor is encouraged to use state data
collection and technology to the extent possible and to integrate
the family and medical leave benefits program with existing state
policies.
SECTION 20. This act shall become effective November 1, 2021.
58-1-6041 LRB 12/22/20