Senator Todd D. Weiler proposes the following substitute bill:


1     
PAID LEAVE MODIFICATIONS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Val L. Peterson

6     

7     LONG TITLE
8     General Description:
9          This bill requires certain state employers to offer paid parental leave.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires certain state employers to provide certain employees paid parental leave
14     upon:
15               •     the birth of the employee's child;
16               •     the adoption of a minor child; or
17               •     the appointment of legal guardianship of a minor child;
18          ▸     requires the Department of Human Resource Management to adopt rules to
19     administer parental leave; and
20          ▸     allows the Department of Administrative Services to transfer certain money for the
21     costs of parental leave.
22     Money Appropriated in this Bill:
23          This bill appropriates in fiscal year 2022:
24          ▸     to the Department of Administrative Services -- Finance Mandated Paid Parental
25     Leave -- Paid Parental Leave, as ongoing appropriation:
26               •     from the General Fund, $1,752,200.
27     Other Special Clauses:
28          This bill provides a special effective date.
29     Utah Code Sections Affected:
30     AMENDS:
31          63J-1-206, as last amended by Laws of Utah 2020, Chapters 152, 231, 402 and last
32     amended by Coordination Clause, Laws of Utah 2020, Chapter 231
33          67-19-14.7 (Effective 07/01/21), as last amended by Laws of Utah 2020, Fifth Special
34     Session, Chapter 20
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 63J-1-206 is amended to read:
38          63J-1-206. Appropriations governed by chapter -- Restrictions on expenditures --
39     Transfer of funds -- Exclusion.
40          (1) (a) Except as provided in Subsections (1)(b) and (2)(e), or where expressly
41     exempted in the appropriating act:
42          (i) all money appropriated by the Legislature is appropriated upon the terms and
43     conditions set forth in this chapter; and
44          (ii) any department, agency, or institution that accepts money appropriated by the
45     Legislature does so subject to the requirements of this chapter.
46          (b) This section does not apply to:
47          (i) the Legislature and its committees; and
48          (ii) the Investigation Account of the Water Resources Construction Fund, which is
49     governed by Section 73-10-8.
50          (2) (a) Each item of appropriation is to be expended subject to any schedule of
51     programs and any restriction attached to the item of appropriation, as designated by the
52     Legislature.
53          (b) Each schedule of programs or restriction attached to an appropriation item:
54          (i) is a restriction or limitation upon the expenditure of the respective appropriation
55     made;
56          (ii) does not itself appropriate any money; and
57          (iii) is not itself an item of appropriation.
58          (c) (i) An appropriation or any surplus of any appropriation may not be diverted from
59     any department, agency, institution, division, or line item to any other department, agency,
60     institution, division, or line item.
61          (ii) If the money appropriated to an agency to pay lease payments under the program
62     established in Section 63A-5b-703 exceeds the amount required for the agency's lease
63     payments to the Division of Facilities Construction and Management, the agency may:
64          (A) transfer money from the lease payments line item to other line items within the
65     agency; and
66          (B) retain and use the excess money for other purposes.
67          (d) The money appropriated subject to a schedule of programs or restriction may be
68     used only for the purposes authorized.
69          (e) In order for a department, agency, or institution to transfer money appropriated to it
70     from one program to another program within a line item, the department, agency, or institution
71     shall revise its budget execution plan as provided in Section 63J-1-209.
72          (f) (i) The procedures for transferring money between programs within a line item as
73     provided by Subsection (2)(e) do not apply to money appropriated to the State Board of
74     Education for the Minimum School Program or capital outlay programs created in Title 53F,
75     Chapter 3, State Funding -- Capital Outlay Programs.
76          (ii) The state superintendent may transfer money appropriated for the programs
77     specified in Subsection (2)(f)(i) only as provided by Section 53F-2-205.
78          (3) Notwithstanding Subsection (2)(c)(i):
79          (a) the state superintendent may transfer money appropriated for the Minimum School
80     Program between line items in accordance with Section 53F-2-205;
81          (b) the Department of Administrative Services may transfer money appropriated for the
82     purpose of paying the costs of paid employee parental leave and postpartum recovery leave
83     under Section 67-19-14.7 to another department, agency, institution, or division; and
84          (c) the Department of Administrative Services may transfer or divert money to another
85     department, agency, institution, or division only for the purposes of coordinating and providing
86     a state response to the coronavirus.
87          Section 2. Section 67-19-14.7 (Effective 07/01/21) is amended to read:
88          67-19-14.7 (Effective 07/01/21). Parental leave -- Postpartum recovery leave.
89          (1) As used in this section:
90          (a) "Parental leave" means leave hours a state employer provides to a parental leave
91     eligible employee.
92          [(a)] (b) "[Eligible] Parental leave eligible employee" means an employee who:
93          (i) is in a position that receives retirement benefits under Title 49, Utah State
94     Retirement and Insurance Benefit Act;
95          (ii) accrues paid leave benefits that can be used in the current and future calendar years;
96          (iii) is not reemployed as defined in Section 49-11-1202; and
97          [(iv) gives birth to a child.]
98          (iv) (A) is a birth parent as defined in Section 78B-6-103;
99          (B) legally adopts a minor child, unless the individual is the spouse of the pre-existing
100     parent;
101          (C) is the intended parent of a child born under a validated gestational agreement in
102     accordance with Title 78B, Chapter 15, Part 8, Gestational Agreement; or
103          (D) is appointed the legal guardian of a minor child.
104          [(b)] (c) "Postpartum recovery leave" means leave hours a state employer provides to
105     [an] a postpartum recovery leave eligible employee to recover from childbirth.
106          [(c)] (d) "Retaliatory action" means to do any of the following to an employee:
107          (i) dismiss the employee;
108          (ii) reduce the employee's compensation;
109          (iii) fail to increase the employee's compensation by an amount that the employee is
110     otherwise entitled to or was promised;
111          (iv) fail to promote the employee if the employee would have otherwise been
112     promoted; or
113          (v) threaten to take an action described in Subsections (1)[(c)](d)(i) through (iv).
114          (e) "Postpartum recovery leave eligible employee" means an employee who:
115          (i) is in a position that receives retirement benefits under Title 49, Utah State
116     Retirement and Insurance Benefit Act;
117          (ii) accrues paid leave benefits that can be used in the current and future calendar years;
118          (iii) is not reemployed as defined in Section 49-11-1202; and
119          (iv) gives birth to a child.
120          [(d)] (f) (i) "State employer" means:
121          (A) a state executive branch agency, including the State Tax Commission, the National
122     Guard, and the Board of Pardons and Parole;
123          (B) the legislative branch of the state; or
124          (C) the judicial branch of the state.
125          (ii) "State employer" does not include:
126          (A) an institute of higher education;
127          (B) the Utah Board of Higher Education;
128          (C) the State Board of Education;
129          (D) an independent entity as defined in Section 63E-1-102;
130          (E) the Attorney General's Office;
131          (F) the State Auditor's Office; or
132          (G) the State Treasurer's Office.
133          (g) "Qualified employee" means:
134          (i) a parental leave eligible employee; or
135          (ii) a postpartum leave eligible employee.
136          (2) (a) Except as provided in Subsection [(3), a state employer shall allow an eligible
137     employee to use up to 120 hours of paid postpartum recovery leave based on a 40-hour work
138     week for recovery from childbirth.] (4) and (5), a state employer shall:
139          (i) allow a parental leave eligible employee to use up to 120 hours of paid parental
140     leave based on a 40-hour week for:
141          (A) the birth of the parental leave eligible employee's child;
142          (B) the adoption of a minor child; or
143          (C) the appointment of legal guardianship of a minor child; and
144          (ii) allow a postpartum recovery leave eligible employee to use up to 120 hours of paid
145     postpartum recovery leave based on a 40-hour work week for recovery from childbirth.
146          (b) A state employer shall allow [an eligible] a qualified employee who is part-time or
147     who works in excess of a 40-hour work week or its equivalent to use the amount of parental
148     leave or postpartum recovery leave available to the [eligible] qualified employee under this
149     section on a pro rata basis as adopted by rule by the department under Subsection [(11)] (12).
150          (3) (a) Parental leave described in Subsection (2)(a)(i):
151          (i) may not be used before the day on which:
152          (A) the parental leave eligible employee's child is born;
153          (B) the parental leave eligible employee adopts a minor child; or
154          (C) the parental leave eligible employee is appointed legal guardian of a minor child;
155          (ii) may not be used more than six months after the date described in Subsection
156     (3)(a)(i);
157          (iii) may not be used intermittently, unless:
158          (A) by mutual written agreement between the state employer and the parental leave
159     eligible employee; or
160          (B) a health care provider certifies that intermittent leave is medically necessary due to
161     a serious health condition of the child;
162          (iv) runs concurrently with any leave authorized under the Family and Medical Leave
163     Act of 1993, 29 U.S.C. Sec. 2601 et seq.; and
164          (v) runs consecutively to postpartum recovery leave.
165          (b) The amount of parental leave authorized under Subsection (2)(a)(i) does not
166     increase if a parental leave eligible employee:
167          (i) has more than one child born from the same pregnancy;
168          (ii) adopts more than one minor child; or
169          (iii) is appointed legal guardian of more than one minor child.
170          (c) A parental leave eligible employee may not use more than 120 hours of paid
171     parental leave within a single 12-month period, regardless of whether during that 12-month
172     period the parental leave eligible employee:
173          (i) becomes the parent of more than one child;
174          (ii) adopts more than one minor child; or
175          (iii) is appointed legal guardian of more than one minor child.
176          [(3)] (4) (a) Postpartum recovery leave described in Subsection (2)(a)(ii):
177          (i) shall be used starting on the day on which the postpartum recovery leave eligible
178     employee gives birth, unless a health care provider certifies that an earlier start date is
179     medically necessary;
180          (ii) shall be used in a single continuous period; [and]
181          (iii) runs concurrently with any leave authorized under the Family and Medical Leave
182     Act of 1993, 29 U.S.C. Sec. 2601 et seq.; and
183          (iv) runs consecutively to parental leave.
184          (b) The amount of postpartum recovery leave authorized under Subsection (2)(a)(ii)
185     does not increase if [an] a postpartum recovery leave eligible employee has more than one child
186     born from the same pregnancy.
187          [(4)] (5) (a) Except as provided in Subsection [(4)] (5)(b), [an eligible] a qualified
188     employee shall give the state employer notice at least 30 days before the day on which the
189     [eligible] qualified employee plans to:
190          (i) begin using parental leave or postpartum recovery leave under this section; and
191          (ii) stop using parental leave or postpartum recovery leave under this section.
192          (b) If circumstances beyond the [eligible] qualified employee's control prevent the
193     [eligible] qualified employee from giving notice in accordance with Subsection [(4)] (5)(a), the
194     [eligible] qualified employee shall give each notice described in Subsection [(4)] (5)(a) as soon
195     as reasonably practicable.
196          [(5) A] (6) Except as provided in Subsections (3)(a)(iv) and (4)(a)(iii), a state
197     employer may not charge parental leave or postpartum recovery leave under this section against
198     sick, annual, compensatory, excess, or other leave a qualified employee is entitled to.
199          [(6)] (7) A state employer may not compensate [an eligible] a qualified employee for
200     any unused parental leave or postpartum recovery leave upon termination of employment.
201          [(7)] (8) (a) Following the expiration of [an eligible] a qualified employee's parental
202     leave or postpartum recovery leave under this section, the state employer shall ensure that the
203     [eligible] qualified employee may return to:
204          (i) the position that the [eligible] qualified employee held before using parental leave
205     or postpartum recovery leave; or
206          (ii) a position within the state employer that is equivalent in seniority, status, benefits,
207     and pay to the position that the [eligible] qualified employee held before using parental leave or
208     postpartum recovery leave.
209          (b) If during the time [an eligible] a qualified employee uses parental leave or
210     postpartum recovery leave under this section the state employer experiences a reduction in
211     force and, as part of the reduction in force, the [eligible] qualified employee would have been
212     separated had the [eligible] qualified employee not been using the parental leave or postpartum
213     recovery leave, the state employer may separate the [eligible] qualified employee in accordance
214     with any applicable process or procedure as if the [eligible] qualified employee were not using
215     the parental leave or postpartum recovery leave.
216          [(8)] (9) During the time [an eligible] a qualified employee uses parental leave or
217     postpartum recovery leave under this section, the [eligible] qualified employee shall continue
218     to receive all employment related benefits and payments at the same level that the [eligible]
219     qualified employee received immediately before beginning the parental leave or postpartum
220     leave, provided that the [eligible] qualified employee pays any required employee
221     contributions.
222          [(9)] (10) A state employer may not:
223          (a) interfere with or otherwise restrain [an eligible] a qualified employee from using
224     parental leave or postpartum recovery leave in accordance with this section; or
225          (b) take retaliatory action against [an eligible] a qualified employee for using parental
226     leave or postpartum recovery leave in accordance with this section.
227          [(10)] (11) A state employer shall provide each employee written information
228     regarding [an eligible] a qualified employee's right to use parental leave or postpartum recovery
229     leave under this section.
230          [(11)] (12) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
231     Act, the department shall, [by] on or before July 1, 2021, make rules for the use and
232     administration of parental leave and postpartum recovery leave under this section, including a
233     schedule that provides paid parental leave or postpartum recovery leave for [an eligible] a
234     qualified employee who is part-time or who works in excess of a 40-hour work week on a pro
235     rata basis.
236          Section 3. Appropriation.
237          The following sums of money are appropriated for the fiscal year beginning July 1,
238     2021, and ending June 30, 2022. These are additions to amounts previously appropriated for
239     fiscal year 2022. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
240     Act, the Legislature appropriates the following sums of money from the funds or accounts
241     indicated for the use and support of the government of the state of Utah.
242     ITEM 1
243          To Department of Administrative Services -- Finance
244               Mandated Paid Postpartum Recovery and Parental Leave
245                    From General Fund ongoing
$1,752,200

246                    Schedule of Programs:
247                     Paid Postpartum Recovery and Parental Leave     $1,752,200
248          The Legislature intends that the Department of Administrative Services use the
249     appropriation under this item to offset incremental costs associated with hiring a replacement
250     employee, the payment of overtime to a current employee, or other labor-related costs due to an
251     employee utilizing parental leave or postpartum recovery leave under Section 67-19-14.7. Any
252     unexpended funds remaining at the end of each fiscal year lapses to the General Fund.
253          Section 4. Effective date.
254          This bill takes effect on July 1, 2021.