SENATE BILL NO. 332

May 11, 2023, Introduced by Senators GEISS, BAYER, IRWIN, POLEHANKI, MCMORROW, SANTANA, CHANG, SHINK and CAVANAGH and referred to the Committee on Housing and Human Services.

A bill to provide family leave and family leave optimal coverage benefits to certain individuals; to establish the circumstances under which family leave may be granted and family leave optimal coverage benefits may be paid; to require employer and employee contributions; to require certain duties of an employer; to prohibit certain discrimination and certain retaliatory actions; to require the coordination of certain benefits; to provide for the powers and duties of certain state governmental officers and entities; to require the promulgation of rules; to provide for certain procedures for the resolution of claims; to establish the family leave optimal coverage fund; to require reporting; to provide for remedies; and to prohibit certain actions and prescribe civil sanctions.

the people of the state of michigan enact:

Sec. 1. This act may be cited as the "family leave optimal coverage act".

Sec. 3. As used in this act:

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

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

(c) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of a covered individual's benefit year. However, if the first quarter of the last 5 completed calendar quarters was included in the base period applicable to a covered individual's previous benefit year, the covered individual's base period shall be the last 4 completed calendar quarters.

(d) "Benefit year" means a 12-month period that begins on the first day of the week in which an individual submits a claim for family leave optimal coverage benefits.

(e) "Bereavement leave" means time off from work or the availability for employment because of the death of a covered individual's family member.

(f) "Child" means an individual who is any of the following:

(i) A covered individual's biological, adopted, or foster child, stepchild, or legal ward.

(ii) A child of a covered individual's domestic partner.

(iii) A child to whom a covered individual stands in loco parentis.

(iv) An individual to whom a covered individual stood in loco parentis when the individual was a minor.

(g) "Communicable disease" means that term as defined in section 5101 of the public health code, 1978 PA 368, MCL 333.5101.

(h) "Covered individual" means either of the following:

(i) An individual who satisfies all of the following conditions:

(A) Submits a claim for family leave optimal coverage benefits to the department.

(B) Has done 1 of the following:

(I) Made contributions to the family leave optimal coverage fund as required under section 11 during the 12-month period immediately preceding the date the individual submits the individual's claim. An employer's failure to remit contributions to the family leave optimal coverage fund on behalf of an individual does not affect the individual's eligibility for family leave optimal coverage benefits.

(II) Elected coverage as a self-employed individual under section 19.

(ii) An individual who meets both of the following conditions:

(A) The individual is a former employee who has been separated from employment for not more than 26 weeks at the start of the individual's family leave.

(B) The individual satisfies the requirements of subparagraph (i).

(i) "Department" means the department of labor and economic opportunity.

(j) "Director" means the director of the department or the director's designee.

(k) "Domestic partner" means an individual who is 18 years of age or older in a committed relationship with another individual who is 18 years of age or older, including both same-sex and different-sex relationships. As used in this subdivision, "committed relationship" means a relationship in which the domestic partners share responsibility for a significant measure of each other's common welfare, including, but not limited to, any relationship that is granted legal recognition as a marriage, civil union, or analogous relationship by this state, a political subdivision of this state, another state, or a political subdivision of another state, or the District of Columbia.

(l) "Domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.

(m) "Employee" means an individual engaged in service to an employer in the business of the employer. Employee does not include either of the following:

(i) An individual employed by the United States government.

(ii) An employee as that term is defined in section 351 of the railroad unemployment insurance act, 45 USC 351.

(n) "Employer" means a person that employs 1 or more employees. Employer does not include the United States government.

(o) "Family leave" means time off from work or the availability of employment that can be used for the reasons described in section 5(1).

(p) "Family leave optimal coverage benefits" means the benefits paid to a covered individual for family leave taken under this act.

(q) "Family member" includes any of the following:

(i) A child, regardless of the child's age.

(ii) A biological, adoptive, or foster parent of the covered individual or of the covered individual's spouse or domestic partner.

(iii) A stepparent or legal guardian of the covered individual or of the covered individual's spouse or domestic partner.

(iv) A person who stood in loco parentis to the covered individual when the covered individual was a minor child.

(v) A person who stood in loco parentis to the covered individual's spouse or domestic partner when the covered individual's spouse or domestic partner was a minor child.

(vi) The covered individual's spouse.

(vii) The covered individual's domestic partner.

(viii) A biological, foster, or adoptive grandparent or step-grandparent of the covered individual or of the covered individual's spouse or domestic partner.

(ix) A biological, foster, or adoptive grandchild or step-grandchild of the covered individual or of the covered individual's spouse or domestic partner.

(x) A biological, foster, or adoptive sibling or stepsibling of the covered individual or of the covered individual's spouse or domestic partner.

(xi) An individual to whom the covered individual is related by blood and whose relationship with the covered individual is the equivalent of a familial relationship.

(r) "Health care provider" means any of the following:

(i) An individual licensed or registered under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, including, but not limited to, a doctor, nurse, or midwife.

(ii) An individual authorized under federal law, the laws of another state, or the laws of another country to provide medical or emergency services, including, but not limited to, a doctor, nurse, emergency room personnel, clinical social worker, licensed professional counselor, licensed midwife, or certified doula, if the individual provides the medical or emergency services in accordance with the authorization, and within the jurisdiction, of the authorizing authority.

(s) "Interference" means an action that may have the effect of preventing or discouraging an employee from exercising a right guaranteed under this act, including, but not limited to, any of the following:

(i) Failing to comply with the requirements of section 17.

(ii) Failing to provide an employee with complete and accurate information related to an application for family leave optimal coverage benefits as may be required from an employer under section 17.

(iii) Failing to accurately and timely complete and return an application for family leave optimal coverage benefits as may be required from an employer under section 17.

(iv) Providing the department with inaccurate or incomplete information about an employee's wages or employment as it relates to the employee's eligibility for family leave optimal coverage benefits.

(t) "Military member" means a member of the Armed Forces of the United States, a reserve branch of the Armed Forces of the United States, or the national guard.

(u) "Person" means an individual or a partnership, corporation, limited liability company, governmental entity, or other legal entity.

(v) "Qualifying exigency leave" means time off from work or the availability for employment taken by a family member of a military member to do any of the following:

(i) Child care and school activities described in 29 CFR 825.126.

(ii) Parental care described in 29 CFR 825.126.

(iii) Address any issue that arises because the military member is notified not more than 7 days before the date of deployment of an impending call or order to active duty.

(iv) Attend an official ceremony, program, or event sponsored by the military that is related to the military member's active duty or call to active duty status.

(v) Attend family-support or assistance programs and informational briefings sponsored or promoted by the military, a military service organization, or the American Red Cross that are related to the military member's active duty or call to active duty status.

(vi) Make or update financial or legal arrangements to address the military member's absence while the military member is on active duty or call to active duty status, including, but not limited to, any of the following:

(A) Prepare and execute financial or health care powers of attorney.

(B) Transfer bank account signature authority.

(C) Enroll in the Defense Enrollment Eligibility Reporting System through the United States Department of Defense.

(D) Obtain military identification cards.

(E) Prepare or update a will or living trust.

(vii) Act as the military member's representative before a federal, state, or local agency to obtain, arrange, or appeal military service benefits under either of the following circumstances:

(A) While the military member is on active duty or call to active duty status.

(B) During the 90-day period immediately following the termination of the military member's active duty status.

(viii) If counseling is necessary because of the military member's active duty or call to active duty status, attend counseling provided by an individual other than a health care provider for any of the following individuals:

(A) The family member.

(B) The military member.

(C) A biological, adopted, or foster child of the military member.

(D) A stepchild or legal ward of the military member.

(E) A child of the military member's domestic partner.

(F) A child to whom the military member stands in loco parentis.

(ix) If the military member is on Rest and Recuperation leave during the military member's period of deployment, spend time with the military member.

(x) Attend arrival ceremonies, reintegration briefings and events, or any other official ceremony or program sponsored by the military during the 90-day period immediately following the termination of the military member's active duty status.

(xi) Address any issue that arises from the death of the military member while on active duty status, including, but not limited to, meeting and recovering the military member's body, making funeral arrangements, and attending funeral services.

(xii) Address any other event that arises out of the military member's active duty or call to active duty status if the family member and family member's employer agree that the leave qualifies as an exigency and agree to the timing and duration of the leave.

(w) "Retaliatory personnel action" means interference with or an action to deny any right granted an employee under this act. Retaliatory personnel action includes, but is not limited to, any of the following:

(i) Threatening an employee.

(ii) Discharging, suspending, demoting, or reducing the work hours of an employee.

(iii) Reporting or threatening to report the suspected citizenship or immigration status of an employee or employee's family member to a federal, state, or local agency.

(iv) Punishing an employee for an employee's participation in or assistance with an investigation, proceeding, or hearing under this act.

(v) Any other adverse action against an employee in response to an employee's exercise of a right granted under this act.

(x) "Safe leave" means time off from work or the availability for employment because the covered individual or the covered individual's family member is a victim of an act of violence, including, but not limited to, domestic violence or sexual assault. Time off from work or the availability of employment under this subdivision includes, but is not limited to, any of the following:

(i) Medical care for the covered individual's or family member's physical injury or disability.

(ii) Psychological or other counseling for the covered individual's or family member's psychological injury or disability.

(iii) To obtain services from a victim services organization.

(iv) To relocate from the covered individual's or family member's place of residence to a new place of residence.

(v) To obtain legal services.

(vi) To participate in a civil or criminal proceeding.

(y) "Serious health condition" means an illness, injury, impairment, pregnancy, recovery from childbirth, or physical or mental condition that involves any of the following:

(i) Inpatient care in a hospital, hospice, or residential care facility.

(ii) Continuous treatment by a health care provider.

(iii) A condition associated with a public health emergency.

(z) "Sexual assault" means any act that violates section 520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.

(aa) "Spouse" means an individual who is 18 years of age or older and who is legally married to another individual who is 18 years of age or older under the laws of this state or another state.

(bb) "State average weekly wage" means the state average weekly wage as determined by the unemployment insurance agency under section 27 of the Michigan employment security act, 1936 (Ex Sess) PA 1, MCL 421.27.

Sec. 5. (1) Beginning January 1, 2026, a covered individual may take not more than 15 weeks of family leave in a benefit year. A covered individual may take family leave for any of the following reasons:

(a) The birth or adoption of a child or placement of a child through foster care.

(b) An absence related to the adoption of a child or placement of a child through foster care if the absence is necessary for the adoption or placement to proceed.

(c) To care for a child during the first year after the child's anticipated or actual birth, adoption, or placement through foster care.

(d) The covered individual's mental or physical illness, injury, or health condition.

(e) To obtain a medical diagnosis, care, or treatment of the covered individual's mental or physical illness, injury, or health condition.

(f) Preventative medical care for the covered individual.

(g) The covered individual's family member's mental or physical illness, injury, or health condition.

(h) To obtain a medical diagnosis, care, or treatment of the covered individual's family member's mental or physical illness, injury, or health condition.

(i) Preventative medical care for the covered individual's family member.

(j) A serious health condition.

(k) To care for a family member with a serious health condition.

(l) To care for a military member who is the covered individual's family member.

(m) Qualifying exigency leave.

(n) Safe leave.

(o) Bereavement leave taken not later than 3 months after the death of the covered individual's family member.

(p) To attend a meeting at a school or place of care of a family member of the covered individual who is a child related to the family member's health or disability or any effects on the family member related to domestic violence or sexual assault.

(q) Closure of the covered individual's primary workplace by order of a public official because of a public health emergency.

(r) To care for a family member of the covered individual who is a child because the family member's school or place of care has been closed by order of a public official or by a school or place of care administrator because of a public health emergency, including, but not limited to, if the school or place of care is closed, but the administrators provide instruction remotely.

(s) If a local health department or the covered individual's health care provider determines that the covered individual's or a family member of the covered individual's presence in the community may jeopardize another individual's health because the covered individual or the family member is exposed to a communicable disease, even if the covered individual or family member does not contract the communicable disease.

(t) If the President of the United States, governor of this state, or a local official of this state declares an emergency, the inability to work or work remotely during the emergency or an extension of the emergency for any of the following reasons:

(i) If the declared emergency is because of a natural disaster or public health crisis, the covered individual has to care for a family member because the family member's usual care professional is unavailable because of the declared emergency.

(ii) If the declared emergency is because of a public health crisis related to a communicable disease, any one of the following:

(A) The covered individual has close contact with an individual who tests positive for the communicable disease or with an individual who has 1 or more principal symptoms of the communicable disease.

(B) The covered individual is subject to a personal, local, state, or federal quarantine or isolation order, including, but not limited to, a shelter-in-place or stay-at-home order related to the declared emergency.

(C) The covered individual has a condition or characteristic that might increase the covered individual's susceptibility of contracting, or increase the health risks associated with contracting, the communicable disease, including, but not limited to, age, heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened or compromised immune system.

(iii) For any other reason related to a declared emergency as provided for in a rule promulgated under this act.

(2) If a covered individual qualifies for family leave under this section and intends to take family leave, the covered individual must provide notice to the covered individual's employer as soon as possible. However, an employer shall not require a covered individual to do either of the following:

(a) Provide notice to the employer more than 30 days before the need to take family leave if the need to take family leave is foreseeable.

(b) Provide notice to the employer by a specific time if the need to take family leave is not foreseeable.

Sec. 7. (1) The department shall, in accordance with this act, pay family leave optimal coverage benefits to a covered individual who takes family leave in accordance with this act. Family leave optimal coverage benefits are payable to a covered individual for the time that the covered individual takes family leave. Family leave optimal coverage benefits are payable to a covered individual for not more than 15 weeks during a benefit year. Family leave optimal coverage benefits for bereavement leave are payable to a covered individual for not more than 10 days for each death of a family member of the covered individual during a benefit year, subject to the maximum number of weeks established under this subsection.

(2) A covered individual who takes family leave for qualifying exigency leave described in section 3(v)(iii) may use the family and medical leave during the 7-day period that begins on the date the military member is notified of an impending call to, or order to, active duty.

(3) A covered individual who takes family leave for qualifying exigency leave described in section 3(v)(ix) may use family leave during the 15-day period that begins on the date the military member's Rest and Recuperation leave begins.

(4) Family leave optimal coverage benefits are payable on the date a covered individual's family leave begins.

(5) The department shall issue the first payment of family leave optimal coverage benefits to a covered individual not more than 14 days after the claim is approved by the department. Following the first payment, all other payments must be made to the covered individual every other week.

(6) A covered individual must not be paid family leave optimal coverage benefits for less than 8 hours of family leave used in 1 work week.

(7) A covered individual may take paid family leave on an intermittent or reduced leave schedule in which all of the leave authorized under this act is not taken sequentially. Family leave optimal coverage benefits for intermittent or reduced leave schedules must be prorated. A covered individual shall make a reasonable effort to schedule paid family leave under this subsection so as not to unduly disrupt the operations of the covered individual's employer. A covered individual shall, to the extent practicable, provide the covered individual's employer with notice of the schedule on which the covered individual will be taking the leave. Paid family leave taken under this subsection must 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.

Sec. 9. (1) Subject to subsection (2), a covered individual must be paid family leave optimal coverage benefits equal to the sum of the following:

(a) 90% of the portion of the covered individual's average weekly wage that is equal to or less than 50% of the state average weekly wage.

(b) 50% of the portion of the covered individual's average weekly wage that is more than 50% of the state average weekly wage.

(2) The maximum weekly benefit rate payable to a covered individual is 65% of the state average weekly wage.

(3) If a covered individual taking family leave from a job continues working at an additional job or jobs during the covered individual's family leave, the department shall not consider the covered individual's average weekly wage earned from the job or jobs when calculating the covered individual's weekly benefit amount. A covered individual with multiple jobs may elect whether to take leave from 1 job or multiple jobs.

Sec. 11. (1) Payroll contributions must be authorized for the exclusive purpose of financing the payment of family leave optimal coverage benefits and administering the family leave optimal coverage program.

(2) Beginning January 1, 2025, for each employee, an employer shall remit contributions to the state treasurer for deposit into the family leave optimal coverage fund in the form and manner determined by the department.

(3) For the time period beginning on January 1, 2025 and ending on December 31, 2026, the contribution amount is a percentage of wages per employee to be determined by the director as sufficient to fund the payments of family leave optimal coverage benefits and to administer the provisions of this act.

(4) For the 2027 calendar year and each calendar year thereafter, not later than October 31, the director shall evaluate and determine the contribution rate for the immediately following calendar year based on a percent of employee wages and at the rate necessary to obtain a total amount of contributions equal to 135% of the benefits paid during the previous fiscal year plus an amount equal to 100% of the cost of administration of the payment of those benefits during the previous fiscal year, minus the amount of net assets remaining in the family leave optimal coverage fund as of June 30 of the current calendar year.

(5) An employer may deduct from an employee up to 50% of the contribution required under this section from the employee's wages and shall remit 100% of the contribution required under this section to the family leave optimal coverage fund. Payments made under this subsection must be made each quarter.

(6) The legislature shall appropriate sufficient funds to the family leave optimal coverage fund to fund the cost of administering this act before the collection of payroll contributions under this section. If the legislature does not appropriate sufficient funds to fund the cost of administering this act before the collection of payroll contributions under this section, the payroll contributions described in this section must be increased to fund the payment of family leave optimal coverage benefits.

(7) An employer with an approved private plan under section 39 is not required to pay contributions under this section.

(8) An employer that does not or refuses to make contributions as required under this section must be assessed a percentage of its total annual payroll equal to the percentage of payroll contributions required under this section for each year the employer does not comply with the requirements of this section, in addition to any amounts previously owed, or fraction thereof, in addition to the total amount of benefits paid to covered individuals for whom it did not make contributions. Assessments collected under this subsection shall be deposited into the family leave optimal coverage fund.

Sec. 13. (1) An employer shall restore an employee who takes family leave to 1 of the following job positions upon the employee's return from family leave:

(a) The job position that the employee held before the employee took the family leave.

(b) A different job position, if the different job position is equivalent to the job position the employee held before the employee took the family leave in all of the following:

(i) Seniority.

(ii) Status.

(iii) Employment benefits.

(iv) Wage rate.

(v) Any other terms and conditions of employment, including, but not limited to, fringe benefits and service credits.

(2) If an employee takes family leave, an employer shall maintain any health care benefits that the employee had before the employee took the family leave, but only if the employee continues to pay the employee's costs for the health care benefits during the family leave. The health care benefits must be maintained for the duration of the employee's family leave.

Sec. 15. (1) Family leave that also qualifies as leave under the family and medical leave act of 1993, 29 USC 2601 to 2654, must run concurrently with leave taken under the family and medical leave act of 1993, 29 USC 2601 to 2654.

(2) An employer may require that family leave optimal coverage benefits be coordinated or paid concurrently with payments made or leave taken in accordance with either of the following regarding family or medical leave:

(a) A provision of a collective bargaining agreement to which the employer is a party.

(b) A paid family leave policy of the employer.

(3) If an employer requires family leave optimal coverage benefits to be coordinated or paid concurrently under subsection (2), the employer must provide its employees with written notice of the requirement.

(4) This act does not prohibit an employer from offering a family leave policy that is more generous than the leave required under this act. Except as otherwise provided in subsection (5), this act does not diminish or affect an individual's right, privilege, or remedy related to leave or a benefit under any of the following:

(a) A collective bargaining agreement or employment agreement.

(b) An employer's policy.

(c) Any other law.

(5) If an employer or employee is a party to a collective bargaining agreement that meets both of the following conditions, this act applies to the parties to the agreement beginning on the expiration date stated in the agreement or the effective date of a new collective bargaining agreement entered into between the parties, whichever is earlier:

(a) The agreement is in effect on the effective date of this act.

(b) The agreement conflicts with this act.

(6) An employer shall not require an employee to waive or limit a right granted under this act. An agreement to waive a right under this act is void and unenforceable.

(7) Notwithstanding any other provision of this act, an employee is not required to use or exhaust any accrued vacation leave, sick leave, or other paid time off before or while receiving family leave optimal coverage benefits under this act. However, a covered individual may choose to use any accrued vacation leave, sick leave, or other paid time off while receiving family leave optimal coverage benefits under this act, unless the aggregate amount the covered individual would receive would exceed the covered individual's average weekly earnings. This section does not require an employee to receive or use additional paid time off as described in this section.

Sec. 17. (1) An employer shall provide written notice that includes the information under subsection (2) to all of its employees before January 31 of each year and to an employee under the following circumstances:

(a) When the employee is hired.

(b) When the employee requests family leave.

(c) When the employer learns that the employee's request for time off work may qualify for family leave.

(2) The department may promulgate rules to establish additional requirements related to the manner in which the employer provides the written notice. The written notice required under subsection (1) must include all of the following information:

(a) The employee's right to family leave optimal coverage benefits under this act.

(b) The terms under which family leave may be used.

(c) The amount of family leave optimal coverage benefits available to an employee.

(d) The procedure to submit a claim for family leave optimal coverage benefits to the department.

(e) The employee's right to job protection and continuation of health care benefits.

(f) A statement that discrimination and retaliatory personnel action against a person's request or claim for or use of family leave optimal coverage benefits is prohibited.

(g) The employee's right to request a hearing under this act.

(3) An employer shall display and maintain a poster that includes all of the information described in subsection (2) at the employer's place of business in a conspicuous location that is accessible to employees. The information on the poster must be printed in English, Spanish, Arabic, French, Mandarin, Korean, Tagalog, and any other language that is requested by an employee.

(4) An employer that violates this section is subject to a civil fine of not more than $100.00 per day per employee for each violation. The prosecutor of the county in which the violation occurred or the attorney general may bring an action to collect the fine. A fine collected must be deposited into the family leave optimal coverage fund.

Sec. 19. (1) A self-employed individual, including, but not limited to, an independent contractor, sole proprietor, individual who is a partner in a partnership, or individual in a joint venture may elect coverage under this act for an initial period that is not less than 3 years. A self-employed individual who elects coverage is eligible for family leave optimal coverage benefits when that individual has met the requirements of section 3(h)(i)(B)(I).

(2) To elect coverage, a self-employed individual must do all of the following:

(a) Submit a notice of election in writing with the department on a form and in the manner prescribed by the department.

(b) Pay both the employee and employer contributions to the family leave optimal coverage fund as described in section 11(5).

(3) A self-employed individual who elects coverage may withdraw from coverage not more than 30 days after the end of the 3-year period of coverage or at another time as provided for under the rules promulgated by the department. The self-employed individual must submit a written notice of the withdrawal to the department on a form and in the manner prescribed by the department. The withdrawal must take effect not less than 30 days after the notice of withdrawal is submitted.

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

Sec. 21. (1) Not more than 1 year after the effective date of this act, the department shall establish reasonable procedures and prescribe forms for submission of a claim for family leave optimal coverage benefits that are not unduly burdensome to an individual who submits a claim for family leave optimal coverage benefits.

(2) An individual may file a claim for family leave optimal coverage benefits not more than 60 days before the anticipated start date of family leave and not more than 90 days after the start date of family leave.

(3) Certification for a covered individual taking leave under section 5(1)(a) to (c) is sufficient if the covered individual provides any of the following, as applicable:

(a) The child's birth certificate.

(b) A document that states the child's birth date or anticipated birth date issued by the health care provider of the child or the health care provider of the person who gave birth.

(c) A document issued by the health care provider of the child, an adoption agency involved in the adoption, or other individuals, as determined by the department, that confirms the adoption or anticipated adoption and the date of adoption or anticipated adoption.

(d) A document issued by the health care provider of the child, a foster care agency involved in the placement, or other individuals, as determined by the department, that confirms the placement or anticipated placement and the date of placement or anticipated placement.

(4) Certification for a covered individual taking leave under section 5(1)(j) is sufficient if it states the date on which the serious health condition commenced, the probable duration of the condition, and the appropriate medical facts within the knowledge of the health care provider as required by the department.

(5) Certification for a covered individual taking leave under section 5(1)(k) is sufficient if it states the date on which the family member's serious health condition commenced, the probable duration of the condition, the appropriate medical facts within the knowledge of the health care provider as required by the department, a statement that the covered individual is needed to care for the family member, and an estimate of the amount of time that the covered individual is needed to care for the family member.

(6) Certification for a covered individual taking leave under section 5(1)(l) is sufficient if it includes all of the following:

(a) The date on which the condition necessitating care commenced.

(b) The probable duration of the care.

(c) The appropriate medical facts within the knowledge of the health care provider as required by the department.

(d) A statement that the covered individual is needed to care for the family member.

(e) An estimate of the amount of time that the covered individual is needed to care for the family member.

(f) An attestation by the covered individual that the health condition is connected to the covered service member's military service.

(7) Certification for a covered individual taking leave under section 5(1)(m) is sufficient if it includes any of the following:

(a) A copy of the family member's active-duty orders.

(b) Other documentation issued by the Armed Forces.

(c) Other documentation permitted by the department.

(8) Certification for a covered individual taking leave under section 5(1)(n) is sufficient if the covered individual provides any of the following:

(a) A police report indicating that the covered individual or covered individual's family member was a victim of an act of violence.

(b) A court document indicating that the covered individual or covered individual's family member is involved in legal action related to an act of violence.

(c) A signed statement from an attorney, member of the clergy, victim and witness advocate, or medical or other professional affirming that the covered individual or covered individual's family member is a victim of an act of violence.

(d) The covered individual's statement, which need not be notarized or in any particular form, affirming that the covered individual or the covered individual's family member is a victim of an act of violence and that the leave was taken for safe leave.

(9) Notwithstanding subsections (3) to (8), the department shall accept alternative certification for any leave under section 5(1) that demonstrates the covered individual's need for leave for a purpose specified under section 5(1).

(10) Not more than 5 business days after an individual submits a claim for family leave optimal coverage benefits, the department must notify the individual's employer about the claim.

(11) Information that an individual or another person submits to the department under this act is confidential and is not subject to disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246. This act does not require a covered individual to provide as certification any information from a health care provider that would result in a violation of section 1177 of the Social Security Act, 42 USC 1320d6, or the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996, Public Law 104191.

(12) Not more than 1 year after the effective date of this act, the department shall promulgate rules to implement this act pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

Sec. 23. (1) A covered individual who submits a claim for family leave optimal coverage benefits shall not do any of the following for the purpose of obtaining family leave optimal coverage benefits:

(a) Willfully make a false statement to the department.

(b) Willfully misrepresent a material fact to the department.

(c) Willfully fail to report a material fact to the department.

(2) If the department determines that a covered individual violated subsection (1), the department may, at the department's discretion, not pay the covered individual family leave optimal coverage benefits for up to 1 year beginning on the date of the department's determination.

(3) Subject to subsection (4), the department may recover, in whole or in part, family leave optimal coverage benefits paid to an individual under the following circumstances:

(a) The department erroneously paid family leave optimal coverage benefits to the covered individual.

(b) The department paid family leave optimal coverage benefits to the covered individual because the covered individual violated subsection (1).

(c) The department denies the covered individual's claim after it has already paid family leave optimal coverage benefits to the covered individual.

(4) The department shall waive the recovery of family leave optimal coverage benefits under subsection (3) if recovery would be against equity and good conscience.

Sec. 25. (1) An individual may request a hearing before the department under this act regarding any determination related to the individual's claim for family leave optimal coverage benefits, including the denial of benefits. An individual must request a hearing under this subsection not later than 90 days after the individual receives notice of the determination. If the department receives a request for a hearing under this subsection, the department must hold a hearing not later than 14 days after it receives the request or, if the department decides that a hearing is not necessary, notify the requester of the reasons for its decision not later than 7 days after it receives the request.

(2) An individual who believes that the individual's rights under section 13 or 29 have been violated may, not later than 3 years after the violation occurs or the individual should reasonably have known that the violation occurred, whichever is later, do either of the following:

(a) Bring a civil action for damages, injunctive relief, or both. A court shall award to a plaintiff who prevails in an action brought under this subdivision not more than 2 times the amount of actual damages, injunctive relief, as appropriate, and costs, including, but not limited to, reasonable attorney costs. An individual is not required to file a complaint with the department under subdivision (b) before bringing a civil action under this subdivision.

(b) File a complaint with the department.

(3) If the department determines that an employer violated section 13 or 29, the department shall do both of the following:

(a) Order the employer to take action to remedy the violation, which may include, but need not be limited to, providing the requested family leave, reinstating an employee, providing back pay accrued not more than 3 years before the complaint was filed, paying liquidated damages, paying reasonable actual attorney fees to the complainant, and any other relief the department determines is appropriate.

(b) Assess the employer an administrative fine of not less than $1,000.00. An administrative fine recovered under this subdivision must be deposited into the family leave optimal coverage fund.

(4) If the department determines that an employer violated section 13 or 29, the department may bring a civil action under subsection (2)(a) on behalf of every individual affected by the violation who has not brought a civil action under subsection (2)(a).

(5) The department shall conduct a hearing under this section in accordance with the procedures provided by chapter 4 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to 24.287. A final decision issued by the department related to family leave optimal coverage benefits is subject to judicial review by the courts as provided in chapter 6 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.301 to 24.306.

Sec. 27. (1) The family leave optimal coverage fund is created in the state treasury.

(2) The state treasurer shall deposit money and other assets received from employer and employee contributions under section 11 or from any other source into the family leave optimal coverage fund. The state treasurer shall direct the investment of money in the family leave optimal coverage fund and credit interest and earnings from the investments to the fund.

(3) The department of labor and economic opportunity is the administrator of the family leave optimal coverage fund for audits of the fund.

(4) The department of labor and economic opportunity shall expend money from the family leave optimal coverage fund, upon appropriation, only for the following purposes:

(a) Implementing this act.

(b) Paying family leave optimal coverage benefits to covered individuals.

Sec. 29. (1) A person shall not commit interference or restrain or deny the exercise of, or the attempt to exercise, a right granted under this act.

(2) A person shall not take retaliatory personnel action or otherwise discriminate against another person because the person exercises, or attempts to exercise, a right granted under this act.

(3) An employer's absence control policy must not treat family leave as an absence that may result in the discipline, discharge, demotion, suspension, or any other adverse action of an employee that uses family leave or submits a claim for family leave optimal coverage benefits.

Sec. 31. If the United States Internal Revenue Service determines that family leave optimal coverage benefits are subject to federal income tax, the department or a private plan approved under section 39 must inform an individual who submits a new claim for family leave optimal coverage benefits, at the time of the submission, of both of the following:

(a) Family leave optimal coverage benefits are subject to federal income tax.

(b) Some taxpayers are required to make estimated tax payments.

Sec. 33. Before September 30 of each year, the department shall submit a report to the secretary of the senate and the clerk of the house of representatives that includes all of the following information:

(a) The amount of family leave optimal coverage benefits that the department projected would be paid for the year covered by the report delineated by each eligible reason described in section 5(1).

(b) The actual amount of family leave optimal coverage benefits paid for the year covered by the report delineated by each eligible reason described in section 5(1).

(c) The amount of family leave that the department projected would be used for the year covered by the report delineated by each eligible reason described in section 5(1).

(d) The actual amount of family leave used for the year covered by the report delineated by each eligible reason described in section 5(1).

(e) The age, gender, race, ethnicity, primary language, residential zip code, average weekly wage, and occupation of each individual who was paid family leave optimal coverage benefits.

(f) The age, gender, race, ethnicity, primary language, residential zip code, average weekly wage, and occupation of each individual who submitted a claim for family leave optimal coverage benefits but was not paid family leave optimal coverage benefits.

(g) Whether each individual who received or submitted a claim for family leave optimal coverage benefits was employed full- or part-time, self-employed, or recently separated from employment.

(h) The average weekly rate of family leave optimal coverage benefits.

(i) The average duration of family leave, delineated by purpose under section 5(1).

(j) The contribution rates paid to the family leave optimal coverage fund for both employers and employees.

(k) The amount of money in the family leave optimal coverage fund on September 1 of the year covered by the report.

(l) The average processing time for initial claims.

(m) The average length of time between the submission of a claim for family leave optimal coverage benefits and the receipt of benefits on that claim.

(n) A summary of the outreach efforts made by the department under section 35.

Sec. 35. (1) The department shall educate employers and employees about this act and the availability of family leave optimal coverage benefits under this act.

(2) Educational material that the department provides to the employers and employees must be available in English, Spanish, and any other language requested by an employee or employer.

(3) Each year, the department may use not more than 5% of the funds in the family leave optimal coverage fund to fulfill its duties under this section.

Sec. 37. Except as otherwise provided in this act, a person that violates this act is subject to a civil fine of not more than $5,000.00. The prosecutor of the county in which the violation occurred or the attorney general may bring an action to collect the fine. A fine collected under this section must be deposited into the family leave optimal coverage fund.

Sec. 39. (1) An employer may apply to the department for approval to meet their obligations under this act through a private plan. In order to be approved, a private plan must confer all of the same rights, protections, and benefits provided to employees under this act, including, but not limited to, all of the following:

(a) Allowing family leave to be taken for any purpose specified in section 5(1).

(b) Providing family leave optimal coverage benefits to a covered individual for the maximum number of weeks required in section 7(1) in a benefit year.

(c) Allowing family leave optimal coverage benefits under section 5(1)(b)(v) through section 5(1)(b)(xviii) to be taken to care for any family member.

(d) Allowing family leave optimal coverage benefits under section 5(1)(b)(viii) to be taken by a covered individual with any serious health condition.

(e) Allowing family leave optimal coverage benefits under section 5(1)(b)(xii) to be taken for safe leave.

(f) Providing a wage replacement rate for all family leave optimal coverage benefits that is equal to or greater than the amount required by section 9(1).

(g) Providing a maximum weekly benefit for all family leave optimal coverage benefits that is equal to or greater than the amount specified in section 9(2).

(h) Allowing a covered individual to take intermittent leave as authorized by section 7(7).

(i) Imposing no additional conditions or restrictions on family leave or family leave optimal coverage benefits, beyond those explicitly authorized by this act or the rules promulgated under this act.

(j) Allowing any employee covered under the private plan who is eligible for family leave optimal coverage benefits under this act to receive benefits and take family leave under the private plan.

(2) In order to be approved as meeting an employer's obligations under this act, a private plan must comply with the following provisions:

(a) If the private plan is in the form of self-insurance, the employer must furnish a bond to the state, with a surety company authorized to transact business in the state, in the form, amount, and manner required by the department.

(b) The plan must provide coverage for all employees of the employer throughout their period of employment with that employer.

(c) If the plan is in the form of a third party that provides for insurance, the forms of the policy must be issued by an insurer approved by this state.

(d) Provide written notice to employees covered by the private plan that includes all of the following:

(i) Information about family leave optimal coverage benefits available under the approved plan, including the duration of leave, and specifically stating that family leave optimal coverage benefits required by the state are being administered for this employer under this private plan.

(ii) The process for filing a claim to receive family leave optimal coverage benefits under the plan.

(iii) The process for employee contributions used to finance the costs of the plan, if any.

(iv) An employee's right to a hearing before the department or a court regarding a contested determination or denial of family leave optimal coverage benefits as provided by section 25.

(v) The right to job restoration and health care benefits continuation, if applicable, pursuant to section 13, and that the employee has the right to a hearing before the department and a court for any alleged violation of section 13.

(vi) A statement that discrimination and retaliatory personnel action against an individual's request or claim for or use of family leave optimal coverage benefits is prohibited.

(e) The cost to employees covered by the plan must not be greater than the cost charged to employees under the state plan under section 11.

(3) The department shall withdraw approval for a private plan granted under subsection (1) when a term or condition of the plan has been violated. Causes for plan termination include, but are not limited to, any of the following:

(a) Failure to pay benefits.

(b) Failure to pay benefits timely and in a manner consistent with this act.

(c) Failure to maintain an adequate surety bond under subsection (2)(a).

(d) Misuse of private plan money.

(e) Failure to submit reports or comply with other compliance requirements as required by the director by rule.

(f) Failure to comply with this act or the regulations promulgated pursuant to this act.

(4) An employee covered by a private plan approved under this section shall retain all applicable rights under section 13.

(5) A contested determination, denial of family leave optimal coverage benefits, or an alleged violation of this act by a private plan is subject to a hearing before the department or a court as provided for in section 25.

(6) An employer or entity offering private plans that violates this section shall be assessed an administrative fine of not less than $100.00 per violation. The director shall deposit any fines collected under this subsection into the family leave optimal coverage fund. The director shall establish a process for the assessment and appeal of fines under this subsection.

(7) The director shall annually determine the total amount expended by the department for costs arising out of the administration of private plans. Each entity offering a private plan shall reimburse the department for the costs arising out of the private plans in the amount, form, and manner determined by the director. The director shall deposit payments received under this subsection into the family leave optimal coverage fund.

Enacting section 1. This act takes effect January 1, 2024.