[Congressional Record Volume 140, Number 147 (Tuesday, November 29, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: November 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
               FEDERAL EMPLOYEES FAMILY FRIENDLY LEAVE ACT

                                 ______


                       HON. ELEANOR HOLMES NORTON

                        of district of columbia

                    in the house of representatives

                         Friday, October 7, 1994

  Ms. NORTON. Mr. Speaker, the Federal Employees Family Friendly Leave 
Act--Family Friendly Leave Act--explicitly guarantees Federal employees 
the right to use their sick leave to care for ill family members. The 
Family and Medical Leave Act--FMLA--which applies to both private and 
public sector employees, may cover some of the same situations as the 
Family Friendly Leave Act and I therefore wish to clarify how these 
acts may overlap and diverge.
  The Family Friendly Leave Act, as I introduced it, clarified that 
Federal employees may use an unlimited amount of accrued sick leave to 
care for or otherwise attend to a family member with an illness, 
injury, or condition which, if a Federal employee was so afflicted, 
would justify the use of sick leave by that employee. As amended by the 
Senate and passed by both the House and Senate, an employee is entitled 
to use a minimum of 5 accrued sick days per year to care for a family 
member. The employee may use up to 13 accrued sick days per year for 
this purpose, provided the employee maintains a balance of 10 days.
  The FMLA, on the other hand, allows employees to take up to 12 weeks 
of unpaid leave per year to care for a seriously ill parent, spouse, or 
child. The FMLA is more restrictive than the Family Friendly Leave Act 
in both the definition of family member and the degree of health 
condition of the family member. The FMLA also enables employees to 
substitute accrued annual or sick leave for unpaid leave when the 
employee is seriously ill or when the employee takes leave to care for 
a family member, with the proviso that an employer is not required ``to 
provide paid sick leave in any situation in which such employer would 
not normally provide any such paid leave.'' 5 U.S.C. 6382(d).
  In its interim regulations, the Office of Personnel Management--OPM--
interpreted the FMLA to allow substitution of accrued sick leave only 
where ``consistent with current law and regulations governing the 
granting and use of annual or sick leave.'' As indicated in the 
committee report for Family Friendly Leave, OPM is not currently 
permitting Federal employees to substitute accrued sick leave for FMLA 
leave taken to care for a seriously ill family member.
  I believe OPM's interim interpretation of the FMLA on this point is 
incorrect. My understanding of the legislative intent of the FMLA is 
that the proviso was intended to limit an employee's right to 
substitute accrued sick leave for unpaid leave only when the specific 
condition in question is not covered by the employer's sick leave plan. 
For example, if a private employer does not permit an employee to use 
sick leave to see a mental health professional, the FMLA does not 
permit such an employee to substitute sick leave to take his or her 
child to see a mental health professional. Because Federal employees 
are allowed to use their sick leave for any medical condition without 
restriction, the FMLA proviso does not restrict their ability to 
substitute paid sick leave for unpaid leave for any condition. Indeed, 
the proviso could not have been intended to prohibit all substitution 
of paid sick leave for unpaid leave to care for a seriously ill family 
member, as OPM's interpretation suggests. Such an interpretation would 
effectively nullify the provision allowing for substitution.
  OPM has not yet issued final regulations interpreting the FMLA and 
the courts have not yet begun to grapple with the meaning of these 
provisions. It is not intended that the Family Friendly Leave Act be 
read as an indication of congressional intent to limit the application 
of the FMLA. To the contrary, these two acts are complementary. The 
Family Friendly Leave Act is intended neither to limit nor to interpret 
the FMLA. Rather, it is intended to create a separate right for Federal 
employees as to the use of their accrued sick leave, not as to the 
substitution for FMLA leave.

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