AN ACT relating to family care leave.

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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 th e 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
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as defined in KRS 95A.210(9), "wages" shall inclu de 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 t o 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 pr ofessional capacity, or in the capacity of outside 26
salesman, or as an outside collector as the terms are defined by 27
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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 serv ice 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 commission er. 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, s ervice 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 leve l 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 t he provisions of KRS Chapters 7, 16, 27A, 27
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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 mo re 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 w ho 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 ho me 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; 26
14. Any individual whose function is to provide behavior support services, 27
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behavior programming services, case management services, co mmunity 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 wai ver program, as defined in 907 5
KAR 7:005 sec. 1(2); or 6
15. Any individual employed to play baseball who is compensated pursuant 7
to the terms of a contract and a collective bargaining agreement that 8
expressly provides for wages and working conditions; 9
(b) "Agriculture" means farming in all its branches, including cultivation and 10
tillage of the soil; dairying; production, cultivation, growing, and harvesting 11
of any agricultural or horticultural commodity; raising of livestock, bees, 12
furbearing animals, or pou ltry; and any practice, including any forestry or 13
lumbering operations, performed on a farm in conjunction with farming 14
operations, including preparation and delivery of produce to storage, to 15
market, or to carriers for transportation to market; 16
(c) "Gratuity" means voluntary monetary contribution received by an employee 17
from a guest, patron, or customer for services rendered; 18
(d) "Tipped employee" means any emplo yee engaged in an occupation in which 19
he or she customarily and regularly receives more than thirty dollars ($30) per 20
month in tips; and 21
(e) "U.S.C." means the United States Code. 22
(3) As used in this subsection and Section 2 of this Act, unless the context requires 23
otherwise: 24
(a) "Committed relationship" means a relationship between individuals who 25
are currently engaged in a relationship of a romantic or intimate nature, 26
and does not include a casual acquaintanceship or ordinary fraternization 27
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in a busines s or social context. The following factors may be considered in 1
addition to any other relevant factors in determining whether the 2
relationship is of a romantic or intimate nature: 3
1. Declarations of romantic interest; 4
2. The relationship is characterized by the expectation of affection; 5
3. Attendance at social outings together as a couple; 6
4. The frequency and type of interaction between the persons, including 7
whether the persons have been involved together over time and on a 8
continuous basis; 9
5. The length of the relationship; and 10
6. Other indications of a substantial connection that would lead a 11
reasonable person to understand that a committed relationship exists; 12
(b) "Family care leave" means unpaid leave to care for a child or family 13
member of the employee; 14
(c) "Family member" means a: 15
1. Person to whom the employee is related by blood, legal custody, or 16
marriage; 17
2. Child who lives with an employee for whom the employee permanently 18
assumes and discharges parental responsibility; 19
3. Person with whom the employee shares, or has shared within the last 20
year, a mutual residence and with whom the employee maintains a 21
committed relationship; or 22
4. Foster child; 23
(d) "Health care provider" means any person licensed under federal or state 24
law to provide health care services; 25
(e) "Same employer" means an office, division, subdivision, or other 26
organizational section of an employer in which both employees have the 27
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same or interrelated duties and the absence of both employees would unduly 1
disrupt the conduct of the employer's business; and 2
(f) "Serious health condition" means an illness, injury, impairment, or 3
physical or mental condition that involves either: 4
1. Inpatient care in a hospital, hospice, or residential health care facility; 5
or 6
2. Continuing treatment or supervision by a health care provider or other 7
competent individual. 8
SECTION 2. A NEW SECTION OF KRS CHAPTER 337 IS CREATED TO 9
READ AS FOLLOWS: 10
(1) It shall be an unlawful employment practice for any employer to refuse to grant 11
family care leave of up to twelve (12) work weeks in any twelve (12) month period 12
by an employee if the employee has more than twelve (12) months of service and 13
at least one thousand two hundred fifty (1,250) hours of service with that 14
employer d uring the previous twelve (12) month period. Family care leave 15
requested pursuant to this section shall be deemed to have been granted by the 16
employer only if it includes a guarantee of employment for the employee in the 17
same or a comparable position upon the termination of the leave. 18
(2) An employee shall be entitled to family care leave described in subsection (1) of 19
this section for the: 20
(a) Birth, adoption, or foster care placement of a child to the employee or to a 21
family member and for whom the employ ee assumes and discharges 22
parental responsibility; or 23
(b) Care of a family member who has a serious health condition. 24
(3) The entitlement to family care leave under subsection (2)(a) of this section shall 25
expire twelve (12) months after the birth, adoption, or foster care placement of 26
the child. 27
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(4) In the case of a family member who has a serious health condition, family car e 1
leave may be taken intermittently when medically necessary as determined by the 2
family member's health care provider. 3
(5) Upon agreement between the employer and the employee, family care leave may 4
be taken on a reduced leave schedule, during which the twelve (12) work weeks of 5
family care leave may be taken over a period not to exceed twenty -four (24) 6
consecutive work weeks. 7
(6) This section shall not be construed to require an employer to provide paid family 8
care leave, but an employer may permit an em ployee to use paid leave in the 9
following circumstances: 10
(a) Any paid family, vacation, personal, or compensatory leave provided by an 11
employer that the employee elects to use for family care leave shall count 12
against the twelve (12) work weeks of allowable family care leave; and 13
(b) If an employer has a program that allows an employee to use paid leave of 14
another employee under certain conditions, and the conditions have been 15
met, the employee may use the paid leave as family care leave and the leave 16
shall count against the twelve (12) work weeks of family care leave. 17
(7) If two (2) family members are employees of the same employer, the employer 18
may limit to: 19
(a) Twelve (12) work weeks during a twenty -four (24) month period the 20
aggregate number of family care leave work weeks to which the family 21
members are entitled; and 22
(b) Four (4) work weeks during a twenty -four (24) month period the aggregate 23
number of family care leave work weeks to which the family members are 24
entitled to take simultaneously. 25
(8) If the necessity for leave under this section is foreseeable based on the birth of a 26
child to, adoption of a child by, or foster care placement of a child with an 27
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employee, the employee shall provide the employer with reasonable prior notice of 1
the expected birth, adoption, or foster care placement of a child with the 2
employee. 3
(9) If the necessity for leave under this section is foreseeable based on planned 4
medical treatment or care, an employee shall: 5
(a) Provide the employer with reasonable prior notice; and 6
(b) Make a reasonable effort to schedule the care in a manner that does not 7
unduly disrupt the operations of the employer. 8
(10) Information that an employee gives to an employer regarding a family member's 9
medical record and a family relationship, pur suant to which the employee seeks 10
to take family care leave under this section, shall be used only to make a decision 11
in regard to the provisions of this chapter. An employer shall keep information 12
regarding the family member's medical record and family re lationship 13
confidential. 14
(11) (a) In the event that family care leave is being requested to care for a family 15
member under subsection (2)(b) of this section, an employer may require 16
that the request be supported by a certification issued by the health care 17
provider of the family member. The employee shall provide a copy of the 18
certification to the employer. 19
(b) The certification provided by the employee to the employer shall state: 20
1. The date on which the serious health condition commenced; 21
2. The probable duration of the condition; and 22
3. An estimate of the amount of time that the employee is needed to care 23
for the family member. 24
(12) A person shall not interfere with, restrain, or deny the exercise of or any attempt 25
to exercise any right provided by this section. 26
(13) An employer shall not retaliate or otherwise discriminate against an employee 27
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enforcing his or her rights under this section. 1
Section 3. KRS 337.990 is amended to read as follows: 2
The following civil pen alties shall be imposed by the Education and Labor Cabinet, in 3
accordance with the provisions in KRS 336.985, for violations of the provisions of this 4
chapter: 5
(1) Any firm, individual, partnership, or corporation that violates KRS 337.020 shall be 6
assessed a civil penalty of not less than one hundred dollars ($100) nor more than 7
one thousand dollars ($1,000) for each offense. Each failure to pay an employee the 8
wages when due him under KRS 337.020 shall constitute a separate offense. 9
(2) Any employer who v iolates KRS 337.050 shall be assessed a civil penalty of not 10
less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). 11
(3) Any employer who violates KRS 337.055 shall be assessed a civil penalty of not 12
less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) 13
for each offense and shall make full payment to the employee by reason of the 14
violation. Each fa ilure to pay an employee the wages as required by KRS 337.055 15
shall constitute a separate offense. 16
(4) Any employer who violates KRS 337.060 shall be assessed a civil penalty of not 17
less than one hundred dollars ($100) nor more than one thousand dollars ($ 1,000) 18
and shall also be liable to the affected employee for the amount withheld, plus 19
interest at the rate of ten percent (10%) per annum. 20
(5) Any employer who violates the provisions of KRS 337.065 shall be assessed a civil 21
penalty of not less than one h undred dollars ($100) nor more than one thousand 22
dollars ($1,000) for each offense and shall make full payment to the employee by 23
reason of the violation. 24
(6) Any person who fails to comply with KRS 337.070 shall be assessed a civil penalty 25
of not less tha n one hundred dollars ($100) nor more than one thousand dollars 26
($1,000) for each offense and each day that the failure continues shall be deemed a 27
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separate offense. 1
(7) Any employer who violates any provision of KRS 337.275 to 337.325, KRS 2
337.345, and KR S 337.385 to 337.405, or willfully hinders or delays the 3
commissioner or the commissioner's authorized representative in the performance 4
of his or her duties under KRS 337.295, or fails to keep and preserve any records as 5
required under KRS 337.320 and 337 .325, or falsifies any record, or refuses to 6
make any record or transcription thereof accessible to the commissioner or the 7
commissioner's authorized representative shall be assessed a civil penalty of not 8
less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). 9
A civil penalty of not less than one thousand dollars ($1,000) shall be assessed for 10
any subsequent violation of KRS 337.285(4) to (9) and each day the employer 11
violates KRS 337.285(4) to (9) shall constitute a separate offense and penalty. 12
(8) Any employer who pays or agrees to pay wages at a rate less than the rate 13
applicable under KRS 337.275 and 337.285, or any wage order issued pursuant 14
thereto shall be assessed a civil penalty of not less than one hundred dollars ($100) 15
nor more than one thousand dollars ($1,000). 16
(9) Any employer who discharges or in any other manner discriminates against any 17
employee because the employee has made any complaint to his or her employer, to 18
the commissioner, or to the commissioner's author ized representative that he or she 19
has not been paid wages in accordance with KRS 337.275 and 337.285 or 20
regulations issued thereunder, or because the employee has caused to be instituted 21
or is about to cause to be instituted any proceeding under or relate d to KRS 22
337.385, or because the employee has testified or is about to testify in any such 23
proceeding, shall be deemed in violation of KRS 337.275 to 337.325, KRS 337.345, 24
and KRS 337.385 to 337.405 and shall be assessed a civil penalty of not less than 25
one hundred dollars ($100) nor more than one thousand dollars ($1,000). 26
(10) Any employer who violates KRS 337.365 shall be assessed a civil penalty of not 27
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less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). 1
(11) A person shall be assessed a civil penalty of not less than one hundred dollars 2
($100) nor more than one thousand dollars ($1,000) when that person discharges or 3
in any other manner discriminates against an employee because the employee has: 4
(a) Made any complaint to his or her employer, the commissioner, or any other 5
person; or 6
(b) Instituted, or caused to be instituted, any proceeding under or related to KRS 7
337.420 to 337.433; or 8
(c) Testified, or is about to testify, in any such proceedings. 9
(12) Any person who violat es Section 2 of this Act shall be assessed a civil penalty of 10
not less than one hundred dollars ($100) nor more than one thousand dollars 11
($1,000). 12