MISSISSIPPI LEGISLATURE

2023 Regular Session

To: Labor; Accountability, Efficiency, Transparency

By: Senator(s) Turner-Ford

Senate Bill 2292

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. This act shall be known and may be cited as the "Mississippi Paid Family Leave Act."

SECTION 2. Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this act:

(a) "Alternative base period" means the last four (4) completed calendar quarters immediately preceding the first day of an individual's application year.

(b) "Application year" means the twelve-month period beginning on the first day of the calendar week in which an individual files an application for family leave insurance benefits.

(c) "Average weekly wage" means one-thirteenth (1/13) of the wages paid during the quarter of the covered individual's base period or alternative base period in which the total wages were highest.

(d) "Base period" means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's application year; provided that if the first quarter of the last five (5) completed calendar quarters was included in the base period applicable to any individual's previous application year, the individual's base period shall be the last four (4) completed calendar quarters.

(e) "Child" means, 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 individual stands in loco parentis, or a person to whom the covered individual stood in loco parentis when the person was a minor.

(f) "Covered individual" means a person who:

(i) Satisfies the following earnings requirements: 1. Has earned not less than twenty-six (26) times the minimum weekly benefit amount pursuant to Section 71-5-503 from work in the state during the person's base period or alternative base period; and

2. Has earned not less than forty (40) times the person's weekly benefit amount pursuant to Section 71-5-503 from work in the state during that quarter of the person's base period or alternative base period in which the person's wages were highest;

(ii) Meets the administrative requirements outlined in this chapter and in other law and rules; and

(iii) Submits an application.

(g) "Department" means the Department of Employment Security.

(h) "Director" means the director of the Department of Employment Security.

(i) "Employee" means an individual employed by an employer within this state.

(j) "Employer" has the same meaning as defined in the federal Fair Labor Standards Act of 1938 (29 USC Section 203(d)).

(k) "Family and medical leave insurance benefits" means the benefits provided under this chapter.

(l) "Family member" means:

(i) A child;

(ii) 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;

(iii) A person to whom the covered individual is legally married under the laws of a state or jurisdiction of the United States;

(iv) A grandparent or step-grandparent of the covered individual or the covered individual's spouse or the domestic partner;

(v) A grandchild or step-grandchild of the covered individual or the covered individual's spouse or domestic partner;

(vi) A biological, foster, or adopted sibling or the spouse or domestic partner of the sibling;

(vii) A domestic partner registered as such under the laws of a state or political subdivision; or

(viii) Any other individual related by blood or whose close association with the covered individual is the equivalent of a family relationship.

(m) "Health care provider" means any person licensed under Federal law, any state law or the laws of another country wherein the person practices to provide medical or emergency services, including, but not limited to, doctors, nurses and emergency room personnel, clinical social workers, licensed professional counselors, or certified midwives.

(n) "Paid family and medical leave" means leave taken from employment, self-employment, or availability for employment in connection with family and medical leave insurance benefits under this chapter.

(o) "Qualifying exigency leave" means leave for the family member of a service member for a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the United States armed forces, including, but not limited to:

(i) Providing for the care or other needs of the service member's child or other family member;

(ii) Making financial or legal arrangements for the service member;

(iii) Attending counseling;

(iv) Attending military events or ceremonies;

(v) Spending time with the service member during rest and recuperation leave;

(vi) Spending time with the service member following a return from deployment; or

(vii) Making arrangements following the death of the service member.

(p) "Serious health condition" has the same meaning as defined in the federal Family and Medical Leave Act of 1993 (29 USC 2611(11)).

(q) "State average weekly wage" has the same meaning as the term "average weekly wage for the state", as referenced in Section 71-3-3.

SECTION 3. Administration. The Mississippi Department of Employment Security shall administer and implement the provisions of this act.

SECTION 4. Entitlement to paid leave. (1) Beginning on January 1, 2026, a covered individual has the right to take paid family and medical leave and to receive family and medical leave insurance benefits pursuant to this chapter if the individual meets one (1) of the following requirements:

(a) Because of birth, adoption, or placement through foster care, is caring for a new child within the first year of the anticipated birth, adoption, or placement;

(b) Is caring for a family member with a serious health condition;

(d) Because of any qualifying exigency leave arising out of the deployment of a family member of the covered individual.

(2) Benefits are payable to an individual who is not currently employed and has been separated from employment for not more than twenty-six (26) weeks at the start of the individual's paid family and medical leave, but who is a covered individual meeting one (1) of the requirements listed in subsection (1) of this section.

(3) The maximum number of weeks for which a covered individual may take paid family and medical leave and for which family and medical leave insurance benefits are payable in an application year is twelve (12) weeks.

SECTION 5. Amount of family and medical leave insurance benefits. (1) The amount of family and medical leave insurance benefits is determined as follows:

(a) The weekly benefit is ninety percent (90%) of a covered individual's average weekly wage; provided, however, that if a covered individual's average weekly wage is less than Thirty Dollars ($30.00), then the weekly benefit must be Thirty Dollars ($30.00)

(b) The maximum weekly benefit is the state average weekly wage, except that for paid family and medical leave beginning before January 1, 2027, the maximum weekly benefit is One Thousand Dollars ($1,000.00).

(2) Family and medical leave insurance benefits are not payable until the covered individual accumulates at least one (1) day or eight (8) consecutive hours of family and medical leave.

SECTION 6. Creation of the family and medical leave insurance fund. (1) There is created in the State Treasury the Family and Medical Leave Insurance Fund, referred to in this section as the "fund." Monies in the fund may be used only to pay family and medical leave insurance benefits under this chapter and to administer the family and medical leave insurance program pursuant to this act. Only the director may authorize expenditures from the fund.

(2) 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 acquired with such excess funds in the manner prescribed by Section 27-105-33. Interest earned on the investment of monies in the fund, and monies remaining in the fund at the end of a fiscal year, remain in the fund and do not revert to the General Fund or any other fund.

SECTION 7. Premiums. (1) The State Treasurer is responsible for determining the amount of premiums necessary to finance the Family and Medical Leave Insurance Program annually, no later than October 1, for the coming calendar year. Beginning on October 1, 2024, the State Treasurer shall set the premium as percentage of employee wages based on sound actuarial principles.

(2) Beginning on January 1, 2025, an employee must pay premiums in an amount determined by the State Treasurer under subsection (1) of this section.

(3) An employer shall collect the premium amount from each employee and shall remit the premium amount to the State Treasurer, who shall transfer the premiums to the State Treasury for deposit in the fund.

SECTION 8. Employment protection. (1) Any covered individual who exercises the individual's right to family and medical leave shall, upon the expiration of that leave, be entitled to be restored by their employer to the position held by the covered individual 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 covered individual was entitled to at the commencement of leave.

(2) During leave taken pursuant to 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 remained in employment continuously from the date the individual commenced the leave until the date the individual returns from paid family and medical leave. However, the covered individual shall continue to pay the covered individual's share of the cost of health care benefits as required prior to the commencement of the leave.

SECTION 9. Prohibited acts. (1) It is unlawful for an employer or another person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.

(2) An employer, temporary help company, employment agency, employee organization, or other person shall not discharge, expel, demote, or otherwise discriminate or take adverse employment action against a person because the person:

(a) Files, applies for or uses benefits provided for under this chapter;

(b) Takes leave from work under this act;

(d) Testifies, is about to testify or assists in a proceeding under this chapter at any time, including the period in which the person receives family and medical leave insurance benefits under this act; or

(e) Exercises other rights under this act.

(3) It is unlawful for an employer's absence control policy to count paid family and medical leave taken under this chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or other adverse actions.

(4) The protections provided pursuant to this Section apply to a person who mistakenly but in good faith alleges a violation of this act.

SECTION 10. Enforcement. (1) Any employer that violates Section 7 or 8 of this act shall be held liable for damages and such equitable relief as provided under 29 USC Section 2617(a), including that an action to recover such damages or equitable relief may be maintained against any employer that violates Section 7 or 8 of this act in the manner prescribed in 29 USC Section 2617(a).

(2) It shall be the duty of the director to administer this chapter. The director shall have the power and authority to adopt, amend or rescind such rules and regulations and to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as deemed necessary or suitable to that end, and such rules and regulations shall be effective upon publication in the manner, not inconsistent with this act, which the director shall prescribe.

SECTION 11. Coordination of benefits. (1) (a) Leave taken with family and medical leave insurance benefits under this chapter that also qualifies as leave under the federal Family and Medical Leave Act of 1993 (FMLA) (29 USC Section 2601 et seq.) shall run concurrently with leave taken under the FMLA.

(b) An employer may require that family and medical leave insurance benefit payments made pursuant to this section be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of short-term disability or designated family care leave under a collective bargaining agreement or employer policy. The employer must give employees written notice of this requirement when the employee requests leave under this section, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under Section 3(a) of this act.

(2) (a) This act does not diminish an employer's obligation to comply with a collective bargaining agreement or employer policy, as applicable, that provides greater leave or more generous benefits.

(b) An agreement by an individual to waive the individual's rights under this act is void as against public policy.

SECTION 12. Appeals. (1) Claims for benefits must be made in accordance with regulations the director prescribes.

(2) An applicant for family and medical leave insurance benefits who is dissatisfied with any determination of their claim for family and medical leave insurance benefits under this chapter may appeal the determination within ninety (90) days of receiving notice of the determination in the manner provided in Section 71-5-519.

SECTION 13. Erroneous payments and disqualification for benefits. (1) A covered individual may be disqualified from family and medical leave insurance benefits for up to one (1) year if the individual willfully makes a false statement or misrepresentation regarding a material fact, or willfully failed to report a material fact, to obtain benefits under this act.

(2) If family and medical leave insurance benefits are paid erroneously or as a result of willful misrepresentation, or if a claim for family and medical leave insurance benefits is rejected after benefits are paid, then the department may seek repayment of benefits from the recipient. 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.

SECTION 14. Elective coverage. (1) A self-employed person, including an independent contractor, sole proprietor, partner, or joint venturer, may elect coverage under this chapter for an initial period of not less than three (3) years or a subsequent period of not less than one (1) year immediately following another period of coverage. A self-employed person who elects coverage shall become eligible for family and medical leave insurance benefits immediately when that individual has met the requirements of Section (2)(f)(i) of this act. The self-employed person must file a notice of election in writing with the director, as required by the department. The election becomes effective on the date of filing the notice.

(2) A self-employed person who has elected coverage may withdraw from coverage within thirty (30) days after the end of the three (3) year period of coverage, or at other times as the Director may prescribe by rule, by filing written notice with the Director, the withdrawal to take effect not sooner than thirty (30) days after filing the notice.

(3) A person who has elected coverage under this section and is no longer a self-employed person shall be excused from their obligations under this section, as the department shall prescribe by rule.

SECTION 15. Administration. (1) The department shall establish and administer a family and medical leave insurance program using monies from the Family and Medical Leave Insurance Fund and pay family and medical leave insurance benefits as specified in this act.

(2) The department shall establish procedures and forms for filing claims for benefits under this act. The department shall notify the employer within five (5) business days of the department's receipt of a claim being filed pursuant to this act.

(3) 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 in the manner provided by applicable law.

(4) Information contained in the files and records pertaining to an individual under this chapter are confidential and not open to public inspection under the Mississippi Public Records Act of 1983 in Section 25-61-1 et seq., other than to public employees in the performance of their official duties. However, an 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.

SECTION 16. Promulgation of rules. The director may promulgate rules in accordance with the Mississippi Administrative Procedures Law in Section 25-43-1.101 et seq., as necessary to implement this act. In promulgating rules, the director shall maintain, to the extent possible, consistency with the rules promulgated to implement the federal Family and Medical Leave Act of 1993 (29 USC 2601 et seq.).

SECTION 17. Income taxes. If the federal Internal Revenue Service determines that family and medical leave insurance benefits under this chapter are subject to federal income tax, then the department must advise an individual filing a new claim for family and medical leave insurance benefits, at the time the individual files the claim, that:

(a) The federal Internal Revenue Service has determined that benefits are subject to federal income tax; and

(b) Requirements exist pertaining to estimated tax payments.

SECTION 18. Intermittent or reduced leave schedule. (1) 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 which 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.

(2) The covered individual shall make a reasonable effort to schedule intermittent or reduced leave so as not to disrupt unduly 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 leave, to the extent practicable. Leave taken on an intermittent leave schedule shall not result in a reduction of the total amount of leave to which a covered individual is entitled beyond the amount of leave actually taken.

SECTION 19. Reports. No later than April 1, 2027, and by April 1 of each subsequent year, the department shall report to the general assembly on projected and actual program participation, premium rates, fund balances and outreach efforts.

SECTION 20. Public education campaign. The department shall conduct a public education campaign to inform workers and employers about the program and the availability of paid family leave and medical leave. The department may use a portion of the funds collected for the paid family and medical leave insurance program in a given year to pay for the public education campaign. Outreach information must be available in English and other languages spoken by more than ten percent (10%) of the state's population.

SECTION 21. Data collection. The department is encouraged to use state data collection and technology to the extent possible in order to keep the cost of the Family and Medical Leave Insurance Program down and to integrate the program with existing state policies.

SECTION 22. Notice. (1) An employer shall provide written notice to each employee upon hiring and each calendar year thereafter. An employer shall also provide written notice to an employee when the employee requests leave under this act, or when the employer acquires knowledge that an employee's leave may be for a qualifying reason under Section 4(1) of this act. The notice must include:

(a) The employee's right to family and medical leave insurance benefits under this act and the terms under which it may be used;

(b) The amount of family and medical leave insurance benefits;

(d) The right to employment restoration and benefits continuation under Section 7 of this act;

(e) A statement that discrimination and retaliatory personnel actions against a person for requesting, applying for or using family and medical leave insurance benefits is prohibited under Section 8 of this act;

(f) A statement informing the employee whether the employer requires payment pursuant to this act be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of short-term disability or designated family care leave under a collective bargaining agreement or employer policy under Section 10 of this act; and

(g) That the employee has a right to enforce their rights under this section pursuant to Section 9 of this act.

(2) 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 subsection (1) of this section in English, Spanish, and any language that is the first language spoken by at least ten percent (10%) of the employer's workforce, as long as the notice has been made publicly available by the department. The director may adopt regulations to establish additional requirements concerning the means by which employers provide the notice.

SECTION 23. Effective date. For purposes of promulgating rules, Section 15 of this act shall take effect upon passage. For all other purposes, this act takes effect January 1, 2024.

SECTION 24. This act shall take effect and be in force from and after July 1, 2023.