To amend the Family and Medical Leave Act of 1993 to clarify the Act, and for other purposes.

January 7, 2003

Mrs. BIGGERT introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committees on House Administration and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

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.

This Act may be cited as the `Family and Medical Leave Clarification Act'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) The Family and Medical Leave Act of 1993 (hereinafter referred to as the `Act') is not working as the Congress intended when it 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 Secretary of Labor's overly broad regulations and interpretations have caused many of these problems by greatly expanding the Act's coverage to apply to many nonserious health conditions.

(3) Between 1996 and 2002, six congressional hearings--two in the Senate and four 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.

(4) 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.

(5) 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.

(6) Administrative problems associated with the use of intermittent leave under the Act are a well-documented issue. Approximately three-quarters (76 percent) of 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 half-day increments rather than minutes.

(7) In 1996, the Commission on Leave, established by title III of the Act (29 U.S.C. 2631 et seq.), reported few compliance difficulties with the Act, but the Commission only based its findings on leave taken between January 1994 and June 1995. Only after the final regulations became effective in early 1995, and after the issuance of contradictory interpretations of what constitutes a serious health condition, did employers begin to encounter most compliance difficulties. As a result, the Commission report failed to identify many compliance problems, because the findings were primarily based on leave taken before the final regulations became effective.

(8) 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.

SEC. 3. DEFINITION OF SERIOUS HEALTH CONDITION.

Section 101(11) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611(11)) is amended--

(1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively;

(2) by inserting `(A)' before `The term';

(3) by adding at the end the following:

`(B) Such term includes an illness, injury, impairment, or physical or mental condition that involves care or treatment described in subparagraph (a), such as a heart attack, a heart condition requiring heart bypass or valve operations, 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, and a complication or illness related to pregnancy (such as severe morning sickness, a need for prenatal care, childbirth, and recovery from childbirth); and

`(C) Such term does not include a short-term illness, injury, impairment, or condition for which treatment and recovery are very brief.'.

SEC. 4. INTERMITTENT LEAVE.

Section 102(b)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(b)(1)) is amended by inserting before the period at the end of the second sentence the following: `, as certified under section 103 by the health care provider after each leave occurrence. An employer may require an employee to take intermittent leave in increments of up to half 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 schedule to take leave for the duration of that work or assignment if the employer cannot reasonably accommodate the employee's request'.

SEC. 5. REQUEST FOR LEAVE.

Section 102(e) of the Family and Medical Leave Act of 1993 (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. For purposes of this paragraph, a request for leave shall be considered 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) of the Family and Medical Leave Act of 1993 (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 subparagraph (D) of subsection (a)(1), where an employer provides a paid absence under the employer's collective bargaining agreement, a 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) REVISED REGULATIONS- The Secretary of Labor shall issue revised regulations that implement the Family and Medical Leave Act of 1993 and reflect the amendments made by this Act. In issuing such revised regulations, the Secretary shall--

(1) not later than 90 days after the date of enactment of this Act--

(A) review all regulations issued before such date of enactment, including the regulations published in sections 825.114 and 825.115 of title 29, Code of Federal Regulations; and

(B) issue proposed regulations; and

(2) not later than 180 days after the date of enactment of this Act, issue final regulations, which shall take effect not later than 90 days after the date of their issuance.

(b) APPLICATION OF EXISTING REGULATIONS- Regulations and opinion letters issued by the Secretary of Labor before the effective date of the revised regulations under subsection (a) shall not apply to actions taken by an employer after the effective date of such revised regulations with respect to leave under the Family and Medical Leave Act of 1993.

SEC. 8. EFFECTIVE DATE OF AMENDMENTS.

The amendments made by this Act shall take effect on the date of issuance of the final regulations required under section 7(a)(2).

END