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108th CONGRESS
1st Session
S. 320
To amend the Family and Medical Leave Act of 1993 to clarify the Act,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 5, 2003
Mr. Gregg introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Family and Medical Leave Act of 1993 to clarify the Act,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Family and Medical
Leave Clarification Act''.
(b) References.--Except as otherwise expressly provided, wherever
in this Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other provision of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.).
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Family and Medical Leave Act of 1993 (referred to
in this section as the ``Act'') is not working as Congress
intended when Congress passed the Act in 1993. Many employers,
including those employers that are nationally recognized as
having generous family-friendly benefit and leave programs, are
experiencing serious problems complying with the Act.
(2) The Department of Labor's overly broad regulations and
interpretations have caused many of those problems by greatly
expanding the Act's coverage to apply to many nonserious health
conditions.
(3) Those problems are also documented in a review of
litigation under the Act. The validity of 13 different
Department of Labor regulations relating to the Act has been
challenged in 64 reported court decisions.
(4) From 1996 through 2002, 6 congressional hearings (2 in
the Senate and 4 in the House of Representatives) documented
numerous implementation problems with the Act due to the
Department of Labor's misapplication of the Act through some of
its regulations and interpretations.
(5) Documented problems generated by the Act include
significant new administrative and personnel costs, loss of
productivity, scheduling difficulties, unnecessary paperwork
and recordkeeping, and other compliance problems.
(6) The Act often conflicts with employers' paid sick leave
policies, prevents employers from managing absences through
their absence control plans, and results in most leave under
the Act becoming paid leave.
(7) Administrative problems associated with the use of
intermittent leave under the Act are a well-documented issue.
Approximately \3/4\ (76 percent) of the respondents to a 2000
survey by the Society for Human Resource Management said they
would find compliance easier if the Department of Labor allowed
covered leave to be offered and tracked in increments of half
days rather than minutes.
(8) The Commission on Leave, established in title III of
the Act (29 U.S.C. 2631 et seq.) which in 1996 reported few
difficulties with compliance with the Act, failed to identify
many of the problems with compliance because the survey on
which the report was based was conducted too soon after the
date of enactment of the Act and the most significant problems
with compliance arose only when employers later sought to
comply with the Act's final regulations and interpretations.
(9) A more recent Department of Labor survey, released in
January 2001 as an update requested by Congress to the 1996
Commission on Leave report, found that between 1995 and 2000,
there had been a 21.5 percent decline in the share of covered
establishments reporting that it was somewhat easy or very easy
to comply with the Act.
(10) According to the Society for Human Resource Management
2003 FMLA Survey, 50 percent of human resource professionals
indicated that they have had to grant leave requests under the
Act that they did not believe were legitimate because of the
Department of Labor's interpretations, and 34 percent of human
resource professionals were aware of employee complaints in the
past 12 months due to coworkers' questionable use of leave
under the Act.
SEC. 3. DEFINITION OF SERIOUS HEALTH CONDITION.
Section 101(11) (29 U.S.C. 2611(11)) is amended--
(1) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii), respectively;
(2) by aligning the margins of those clauses with the
margins of clause (i) of paragraph (4)(A);
(3) by inserting before ``The'' the following:
``(A) In general.--''; and
(4) by adding at the end the following:
``(B) Exclusions.--The term does not include a
short-term illness, injury, impairment, or condition,
for which treatment and recovery are very brief.
``(C) Examples.--The term includes an illness,
injury, impairment, or physical or mental condition
such as a heart attack, a heart condition requiring a
heart bypass or valve operation, a back condition
requiring extensive therapy or a surgical procedure, a
stroke, a severe respiratory condition, a spinal
injury, appendicitis, pneumonia, emphysema, severe
arthritis, a severe nervous disorder, an injury caused
by a serious accident on or off the job, an ongoing
pregnancy, a miscarriage, a complication or illness
related to pregnancy (such as severe morning sickness),
a need for prenatal care, childbirth, and recovery from
childbirth, that involves care or treatment described
in subparagraph (A).''.
SEC. 4. INTERMITTENT LEAVE.
Section 102(b)(1) (29 U.S.C. 2612(b)(1)) is amended by striking the
period at the end of the second sentence and inserting the following:
``, as certified under section 103 by the health care provider involved
after each leave occurrence. An employer may require an employee to
take intermittent leave under this Act in increments of up to (and
including) \1/2\ of a workday. An employer may require an employee who
travels as part of the normal day-to-day work or duty assignment of the
employee and who requests intermittent leave or leave on a reduced
leave schedule under this Act to take leave for the duration of the
work or assignment involved, if the employer cannot reasonably
accommodate the employee's request.''.
SEC. 5. REQUEST FOR LEAVE.
Section 102(e) (29 U.S.C. 2612(e)) is amended by inserting after
paragraph (2) the following:
``(3) Request for leave.--If an employer does not exercise,
under subsection (d)(2), the right to require an employee to
substitute other employer-provided leave for leave under this
title, the employer may require the employee who wants leave
under this title to request the leave in a timely manner. If an
employer requires a timely request under this paragraph, an
employee who fails to make a timely request may be denied leave
under this title.
``(4) Timeliness of request for leave.--For purposes of
paragraph (3), a request for leave shall be considered to be
timely if--
``(A) in the case of foreseeable leave, the
employee--
``(i) provides the applicable advance
notice required by paragraphs (1) and (2); and
``(ii) submits any written application
required by the employer for the leave not
later than 5 working days after providing the
notice to the employer; and
``(B) in the case of unforeseeable leave, the
employee--
``(i) notifies the employer orally of the
need for the leave--
``(I) not later than the date the
leave commences; or
``(II) during such additional
period as may be necessary, if the
employer is physically or mentally
incapable of providing the
notification; and
``(ii) submits any written application
required by the employer for the leave--
``(I) not later than 5 working days
after providing the notice to the
employer; or
``(II) during such additional
period as may be necessary, if the
employee is physically or mentally
incapable of submitting the
application.''.
SEC. 6. SUBSTITUTION OF PAID LEAVE.
Section 102(d)(2) (29 U.S.C. 2612(d)(2)) is amended by adding at
the end the following:
``(C) Paid absence.--Notwithstanding subparagraphs
(A) and (B), with respect to leave provided under
subsection (a)(1)(D), if an employer provides a paid
absence under the employer's collective bargaining
agreement, an employee welfare benefit plan under the
Employee Retirement Income Security Act of 1974 (29
U.S.C. 1001 et seq.), or under any other sick leave,
sick pay, or disability plan, program, or policy of the
employer, the employer may require the employee to
choose between the paid absence and unpaid leave
provided under this title.''.
SEC. 7. REGULATIONS.
(a) Existing Regulations.--
(1) Review.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Labor shall review all
regulations issued before that date to implement the Family and
Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.), including
the regulations published in sections 825.114 and 825.115 of
title 29, Code of Federal Regulations.
(2) Termination.--The regulations described in paragraph
(1), and opinions letters promulgated under the regulations,
cease to be effective on the effective date of final
regulations issued under subsection (b)(2)(B), except as
described in subsection (c).
(b) Revised Regulations.--
(1) In general.--The Secretary of Labor shall issue revised
regulations implementing the Family and Medical Leave Act of
1993 that reflect the amendments made by this Act.
(2) New regulations.--The Secretary of Labor shall issue--
(A) proposed regulations described in paragraph (1)
not later than 90 days after the date of enactment of
this Act; and
(B) final regulations described in paragraph (1)
not later than 180 days after that date of enactment.
(3) Effective date.--The final regulations take effect 90
days after the date on which the regulations are issued.
(c) Transition.--The regulations described in subsection (a) shall
apply to actions taken by an employer prior to the effective date of
final regulations issued under subsection (b)(2)(B), with respect to
leave under the Family and Medical Leave Act of 1993.
SEC. 8. EFFECTIVE DATE.
The amendments made by this Act take effect 180 days after the date
of enactment of this Act.
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