[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 320 Introduced in Senate (IS)]







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.
                                 <all>