MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Labor; Judiciary, Division A
By: Senator(s) Witherspoon
AN ACT TO ESTABLISH THE MISSISSIPPI PAID FAMILY LEAVE ACT TO BE ADMINISTERED BY THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY; TO PROVIDE DEFINITIONS; TO PROVIDE ENTITLEMENT REQUIREMENTS AND CONDITIONS FOR PAID LEAVE; TO AUTHORIZE INTERMITTENT OR REDUCED LEAVE; TO PROVIDE THAT THIS ACT IS TO BE CONSTRUED WITH SIMILAR PROVISIONS IN THE FEDERAL FAMILY AND MEDICAL LEAVE ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this section.
(a) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:
(i) Under eighteen (18) years of age; or
(ii) Eighteen (18) years of age or older and incapable of self-care because of a mental or physical disability.
(b) "Department" means the Department of Labor and Industries.
(c) Director means the director of the department.
(d) (i) "Employee" means a person who has been employed:
1. For at least twelve (12) months by the employer with respect to whom leave is requested; and
2. For at least one thousand two hundred fifty (1,250) hours of service with the employer during the previous twelve-month period.
(ii) "Employee" does not mean a person who is employed at a worksite at which the employer as defined in subparagraph (i) of this paragraph (d) employs less than fifty (50) employees if the total number of employees employed by that employer within seventy-five (75) miles of that worksite is less than fifty (50).
(e) "Employer" means:
(i) Any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and includes any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision, which employs fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or preceding calendar year;
(ii) The state, state institutions, and state agencies; and
(iii) Any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision.
(f) "Employment benefits" means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions except benefits that are provided by a practice or written policy of an employer or through an employee benefit plan as defined in 29 USC Section 1002(3).
(g) "Family member" means a child, parent, spouse, or state registered domestic partner of an employee.
(h) "Health care provider" means:
(i) A person licensed as a physician or an osteopathic physician and surgeon;
(ii) A person licensed as an advanced registered nurse practitioner; or
(iii) Any other person determined by the director to be capable of providing health care services.
(i) "Intermittent leave" is leave taken in separate blocks of time due to a single qualifying reason.
(j) "Leave for a family member's serious health condition" means leave as defined in Section 3 of this act.
(k) "Leave for the birth or placement of a child" means leave as defined in Section 3 of this act.
(l) "Leave for the employee's serious health condition" as defined in Section 3 of this act.
(m) "Parent" means the biological or adoptive parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child.
(n) "Period of incapacity" means an inability to work, attend school, or perform other regular daily activities because of the serious health condition, treatment of that condition or recovery from it, or subsequent treatment in connection with such inpatient care.
(o) "Reduced leave schedule" means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.
(p) (i) "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:
1. Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity; or
2. Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
a. A period of incapacity of more than three (3) consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
A. Treatment two (2) or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or
B. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider;
b. Any period of incapacity due to pregnancy, or for prenatal care;
c. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
A. Requires periodic visits for treatment by a health care provider, or by a nurse or physicians assistant under direct supervision of a health care provider;
B. Continues over an extended period of time, including recurring episodes of a single underlying condition; and
C. May cause episodic rather than a continuing period of incapacity;
d. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider; or
e. Any period of absence to receive multiple treatments, including any period of recovery from the treatments, by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three (3) consecutive calendar days in the absence of medical intervention or treatment, such as cancer, severe arthritis, or kidney disease.
(ii) Treatment for purposes of subparagraph (i) in this paragraph (p) includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. Under subparagraph (i)2.a.B. of this paragraph (p), a regimen of continuing treatment includes, but is not limited to, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of continuing treatment that includes taking over-the-counter medications, such as aspirin, antihistamines, or salves, or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of this act.
(iii) Conditions for which cosmetic treatments are administered are not "serious health conditions" unless inpatient hospital care is required or unless complications develop. Unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, and periodontal disease are examples of conditions that do not meet the definition of a "serious health condition" and do not qualify for leave under this act. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this section are met. Mental illness resulting from stress or allergies may be serious health conditions provided all the other conditions of this section are met.
(iv) Substance abuse may be a serious health condition if the conditions of this section are met. However, leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services upon referral by a health care provider. Absence from work because of the employee's use of the substance, rather than for treatment, does not qualify for leave under this act.
(v) Absences attributable to incapacity under subparagraph (i)2.b. or c. of this paragraph (p) qualify for leave under this act even though the employee or the immediate family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three (3) days.
(q) "Spouse" means a husband or wife, as the case may be, or state-registered domestic partner.
SECTION 2. Administration. The Mississippi Department of Employment Security shall administer the provisions of this act.
SECTION 3. Entitlement to paid leave. (1) an employee is entitled to a total of twelve (12) workweeks of paid leave during any twelve-month period for one or more of the following:
(a) Because of the birth of a child of the employee and in order to care for the child;
(b) Because of the placement of a child with the employee for adoption or foster care;
(c) In order to care for a family member of the employee, if the family member has a serious health condition; or
(d) Because of a serious health condition that makes the employee unable to perform the functions of the position of the employee.
(2) The entitlement to leave for the birth or placement of a child expires at the end of the twelve-month period beginning on the date of such birth or placement.
SECTION 4. Leave taken intermittently or on reduced leave schedule. (1) (a) When paid leave is taken after the birth or placement of a child for adoption or foster care, an employee may take paid leave intermittently or on a reduced paid leave schedule with the employer's agreement. The employer's agreement is not required, however, for paid leave during which the employee has a serious health condition in connection with the birth of a child or if the newborn child has a serious health condition.
(b) Paid leave may be taken intermittently or on a reduced leave schedule when medically necessary for medical treatment of a serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition. It may also be taken to provide care or psychological comfort to an immediate family member with a serious health condition.
(i) Intermittent paid leave may be taken for a serious health condition that requires treatment by a health care provider periodically, rather than for one (1) continuous period of time, and may include leave of periods from an hour or more to several weeks.
(ii) Intermittent or reduced schedule paid leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he or she does not receive treatment by a health care provider.
(c) There is no limit on the size of an increment of paid leave when an employee takes intermittent paid leave or paid leave on a reduced paid leave schedule. However, an employer may limit leave increments to the shortest period of time that the employers payroll system uses to account for absences or use of leave, provided it is one (1) hour or less.
(d) The taking of paid leave intermittently or on a reduced leave schedule under this section may not result in a reduction in the total amount of leave to which the employee is entitled beyond the amount of leave actually taken.
(2) If an employee requests intermittent paid leave, or leave on a reduced leave schedule, for a family members serious health condition or the employees serious health condition when the condition is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that:
(a) Has equivalent pay and benefits; and
(b) Better accommodates recurring periods of leave than the regular employment position of the employee.
SECTION 5. Foreseeable paid leave. (1) If the necessity for paid leave for the birth or placement of a child is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than thirty (30) days' notice, before the date the leave is to begin, of the employees intention to take leave for the birth or placement of a child, except that if the date of the birth or placement requires leave to begin in less than thirty (30) days, the employee shall provide such notice as is practicable.
(2) If the necessity for paid leave for a family member's serious health condition or the employee's serious health condition is foreseeable based on planned medical treatment, the employee:
(a) Must make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the family member, as appropriate; and
(b) Must provide the employer with not less than thirty (30) days' notice, before the date the leave is to begin, of the employee's intention to take leave for a family member's serious health condition or the employee's serious health condition, except that if the date of the treatment requires leave to begin in less than thirty (30) days, the employee must provide such notice as is practicable.
SECTION 6. Spouses employed by same employer. If spouses entitled to leave under this act are employed by the same employer, the aggregate number of workweeks of paid leave to which both may be entitled may be limited to twelve (12) workweeks during any twelve-month period, if such leave is taken:
(a) For the birth or placement of a child; or
(b) For a parent's serious health condition.
SECTION 7. Certification. (1) An employer may require that a request for paid leave for a family members serious health condition or the employee's serious health condition be supported by a certification issued by the health care provider of the employee or of the family member, as appropriate. The employee must provide, in a timely manner, a copy of the certification to the employer.
(2) Certification provided under subsection (1) of this section is sufficient if it states:
(a) The date on which the serious health condition commenced;
(b) The probable duration of the condition;
(c) The appropriate medical facts within the knowledge of the health care provider regarding the condition;
(d) (i) For purposes of leave for a family member's serious health condition, a statement that the employee is needed to care for the family member and an estimate of the amount of time that such employee is needed to care for the family member; and
(ii) For purposes of leave for the employee's serious health condition, a statement that the employee is unable to perform the functions of the position of the employee;
(e) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment;
(f) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for the employees serious health condition, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and
(g) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for a family member's serious health condition, a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the family member who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.
(3) If the employer has reason to doubt the validity of the certification provided under subsection (1) of this section for leave for a family member's serious health condition or the employees serious health condition, the employer may require, at the expense of the employer, that the employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (2) of this section for the leave. The second health care provider may not be employed on a regular basis by the employer.
(4) If the second opinion described in subsection (3) of this section differs from the opinion in the original certification provided under subsection (1) of this section, the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (2) of this section. The opinion of the third health care provider concerning the information certified under subsection (2) of this section is considered to be final and is binding on the employer and the employee.
(5) The employer may require that the employee obtain subsequent recertifications on a reasonable basis.
SECTION 8. Employment protection. (1) (a) Except as provided in paragraph (b) of this subsection, any employee who takes paid leave for the intended purpose of the leave is entitled, on return from the leave:
(i) To be restored by the employer to the position of employment held by the employee when the leave commenced; or
(ii) To be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment at a workplace within twenty (20) miles of the employees workplace when leave commenced.
(b) The taking of leave may not result in the loss of any employment benefits accrued before the date on which the leave commenced.
(c) Nothing in this section entitles any restored employee to:
(i) The accrual of any seniority or employment benefits during any period of leave; or
(ii) Any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(d) As a condition of restoration under paragraph (a) of this subsection for an employee who has taken leave for the employee's serious health condition, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph (d) supersedes a valid local law or a collective bargaining agreement that governs the return to work of such employees.
(e) Nothing in this subsection (1) prohibits an employer from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.
(2) An employer may deny restoration under subsection (1) of this section to any salaried employee who is among the highest paid ten percent (10%) of the employees employed by the employer within seventy-five (75) miles of the facility at which the employee is employed if:
(a) Denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(b) The employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that the injury would occur; and
(c) The leave has commenced and the employee elects not to return to employment after receiving the notice.
SECTION 9. Employment benefits. During any period of paid leave taken, if the employee is not eligible for any employer contribution to medical or dental benefits under an applicable collective bargaining agreement or employer policy during any period of leave, an employer shall allow the employee to continue, at the employees expense, medical or dental insurance coverage, including any spouse and dependent coverage, in accordance with state or federal law. The premium to be paid by the employee shall not exceed one hundred two percent (102%) of the applicable premium for the leave period.
SECTION 10. Prohibited acts. (1) It is unlawful for any employer to:
(a) Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this act; or
(b) Discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this act.
(2) It is unlawful for any person to discharge or in any other manner discriminate against any individual because the individual has:
(a) Filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this act;
(b) Given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this act; or
(c) Testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this act.
SECTION 11. Complaint investigations by director. Upon complaint by an employee, the director shall investigate to determine if there has been compliance with this act and the rules adopted under this act. If the investigation indicates that a violation may have occurred, a hearing must be held. The director must issue a written determination, including his or her findings after the hearing. A judicial appeal from the director's determination may be taken, with the prevailing party entitled to recover reasonable costs and attorneys' fees.
SECTION 12. Civil penalty. An employer who is found to have violated a requirement of this act and the rules adopted under this act, is subject to a civil penalty of not less than One Thousand Dollars ($1,000.00) for each violation. Civil penalties must be collected by the department and deposited into the family and medical leave enforcement account.
SECTION 13. Civil action by employees. (1) Any employer who violates is liable:
(a) For damages equal to:
(i) The amount of:
1. Any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
2. In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve (12) weeks of wages or salary for the employee;
(ii) The interest on the amount described in subparagraph (i) of this paragraph (a) calculated at the prevailing rate; and
(iii) An additional amount as liquidated damages equal to the sum of the amount described in subparagraph (i) of this paragraph (a) and the interest described in subparagraph (ii) of this paragraph (a), except that if an employer who has violated proves to the satisfaction of the court that the act or omission which violated was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of, the court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under subparagraphs (i) and (ii) of this paragraph (a), respectively; and
(b) For such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(2) An action to recover the damages or equitable relief prescribed in subsection (1) of this section may be maintained against any employer in any court of competent jurisdiction by any one or more employees for and on behalf of:
(a) The employees; or
(b) The employees and other employees similarly situated.
(3) The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorneys' fees, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
SECTION 14. Notice-Penalties. Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the director, setting forth excerpts from, or summaries of, the pertinent provisions of this act and information pertaining to the filing of a charge. Any employer that willfully violates this section may be subject to a civil penalty of not more than One Hundred Dollars ($100.00) for each separate offense. Any penalties collected by the department under this section shall be deposited into the Family and Medical Leave Enforcement Account.
SECTION 15. Effect on other laws. Nothing in this act shall be construed:
(a) To modify or affect any state or local law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age or disability; or
(b) To supersede any provision of any local law that provides greater family or medical leave rights than the rights established under this act.
SECTION 16. Effect on existing employment benefits. Nothing in this act diminishes the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this act. The rights established for employees under this act may not be diminished by any collective bargaining agreement or any employment benefit program or plan.
SECTION 17. Encouragement of more generous leave policies. Nothing in this act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this act.
SECTION 18. Relationship to Federal Family and Medical Leave Act. (1) Leave under this act and leave under the Federal Family and Medical Leave Act of 1993 (Act Feb. 5, 1993, Public Law 103-3, 107 Stat. 6) is in addition to any leave for sickness or temporary disability because of pregnancy or childbirth.
(2) Leave taken under this act must be taken concurrently with any leave taken under the Federal Family and Medical Leave Act of 1993 (Act Feb. 5, 1993, Public Law 103-3, 107 Stat. 6).
SECTION 19. Construction. This act must be construed to the extent possible in a manner that:
(a) Is consistent with similar provisions, if any, of the Federal Family and Medical Leave Act of 1993 (Act Feb. 5, 1993, Public Law 103-3, 107 Stat. 6); and
(b) Gives consideration to the rules, precedents, and practices of the federal Department of Labor relevant to the federal act.
SECTION 20. This act shall take effect and be in force from and after July 1, 2021.