[Congressional Record Volume 145, Number 114 (Thursday, August 5, 1999)]
[Senate]
[Pages S10433-S10436]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GREGG:
  S. 1530. A bill to amend the Family and Medical Leave Act of 1993 to 
clarify the Act, and for other purposes; to

[[Page S10434]]

the Committee on Health, Education, Labor, and Pensions.


               family and medical leave clarification act

  Mr. GREGG. Mr. President, today marks the sixth anniversary 
of the implementation of the Family and Medical Leave Act. This act, as 
my colleagues will recall, was intended to be used by families for 
critical periods such as after the birth or adoption of a child and 
leave to care for a child, spouse, or one's own ``serious medical 
condition.''
  Since its passage, the Family and Medical Leave Act has had a 
significant impact on employers' leave practices and policies. 
According to the Commission on Family and Medical Leave two-thirds of 
covered work sites have changed some aspect of their policies in order 
to comply with the act.
  Unfortunately, the Department of Labor's implementation of certain 
provisions of the act has resulted in significant unintended 
administrative burden and costs on employers; resentment by co-workers 
when the act is misapplied; invasions of privacy by requiring employers 
to ask deeply personal questions about employees and family members 
planning to take FMLA leave; disruptions to the workplace due to 
increased unscheduled and unplanned absences; unnecessary record 
keeping; unworkable notice requirements; and conflicts with existing 
policies.
  Despite these problems, which have been well documented through three 
separate congressional hearings, including one I chaired three weeks 
ago, there are those in Congress and the administration who choose to 
ignore those problems and instead push for imposition of the law on 
even smaller businesses and for purposes well beyond those judged by 
Congress to be the most critical. These proponents of expansion will 
refer to a report issued by the U.S. Commission on Leave which failed 
to find significant problems associated with the act.
  However, the fact of the matter is, the Commission on Leave's report 
was issued well before the final implementing regulations were in 
place--regulations which are in fact the source of much of the concern 
over the act's implementation.
  Mr. President, to consider expansion at this time is not just 
irresponsible, it is unconscionable.
  The Department of Labor's vague and confusing implementing 
regulations have resulted in the FMLA being misapplied, misunderstood 
and mistakenly ignored. Employers aren't sure if situations like pink 
eye, ingrown toe nails and even the common cold will be considered by 
the regulators and the courts to be serious health conditions.
  Because of these concerns and well documented problems with the act, 
I am today introducing the Family and Medical Leave Clarification Act 
to make reasonable and much needed changes to clarify the Family and 
Medical Leave Act and restore the original congressional intent.
  The FMLA Clarification Act has the strong support of The Society for 
Human Resource Management and close to 300 leading companies and 
associations who make up the Family and Medical Leave Act Technical 
Corrections Coalition. I have received a letter of support from the 
Coalition and ask that it be printed in the Record. This broad based 
coalition shares my belief that both employers and employees would 
benefit from making certain technical corrections to the FMLA--
corrections that are needed to restore congressional intent and to 
reduce administrative and compliance problems experienced by employers 
who are making a good faith effort to comply with the act.
  The bill I am introducing today does several important things:
  First, it repeals the Department of Labor's current regulations for 
``serious health condition'' and includes language from the Democrats' 
own Committee Report on what types of medical conditions (such as heart 
attacks, strokes, spinal injuries, etc) were intended to be covered.
  In passing the FMLA, Congress stated that the term ``serious health 
condition'' is not intended to cover short-term conditions for which 
treatment and recovery are very brief, recognizing that ``it is 
expected that such condition will fall within the most modest sick 
leave policies.''
  The Department of Labor's current regulations are extremely 
expansive, defining the term ``serious health condition'' as including, 
among other things, any absence of more than 3 days in which the 
employee sees any health care provider and receives any type of 
continuing treatment (including a second doctor's visit, or a 
prescription, or a referral to a physical therapist)--such a broad 
definition potentially mandates FMLA leave where an employee sees a 
health care provider once, receives a prescription drug, and is 
instructed to call the health care provider back if the symptoms do not 
improve; the regulations also define as a ``serious health condition'' 
any absence for a chronic health problem, such as arthritis, asthma, 
diabetes, etc., even if the employee does not see a doctor for that 
absence and is absent for less than three days.
  Second, the bill amends the act's provisions relating to intermittent 
leave to give employers the right to require that intermittent leave be 
taken in minimum blocks of 4 hours. This would minimize the misuse of 
FMLA by employees who use FMLA as an excuse for regular tardiness and 
routine justification for early departures.
  Third, the bill shifts to the employee the responsibility to request 
leave be designated as FMLA leave, and requires the employee to provide 
written application within 5 working days of providing notice to the 
employer for foreseeable leave. With respect to unforeseeable leave, 
the bill requires the employee to provide, at a minimum, oral 
notification of the need for the leave not later than the date the 
leave commences unless the employee is physically or mentally incapable 
of providing notice or submitting the application. Under that 
circumstance the employee is provided such additional time as necessary 
to provide notice.
  Shifting the burden to the employee to request leave be designated as 
FMLA leave eliminates the need for the employer to question the 
employee and pry into the employee's and the employee's family's 
private matters, as required under current law, and helps eliminate 
personal liability for employer supervisors who should not be expected 
to be experts in the vague and complex regulations which even attorneys 
have a difficult time understanding. Under current law, it is the 
employer's responsibility in all circumstances to designate leave, paid 
or unpaid, as FMLA-qualifying. Failure to do so in a timely manner or 
to inform an employee that a specific event does not qualify as FMLA 
leave may result in that unqualified leave becoming qualified leave 
under FMLA. This scenario has actually been upheld in Court and has 
placed an enormous burden on employers to respond within 48 hours of an 
employee's leave request. In addition, the courts have held that there 
is personal liability for employers under the FMLA and that an 
individual manager may be sued and held individually liable for acts 
taken based upon or relating to the FMLA. See Freemon v. Foley, 911 F. 
Supp. 326 (N.D. Ill. 1995) (in case of first impression in 7th Circuit, 
court stated, ``We believe the FMLA extends to all those who controlled 
`in whole or in part' [plaintiff's] ability to take leave of absence 
and return to her postion'').
  Fourth, with respect to leave because of the employee's own serious 
health condition, the bill permits an employer to require the employee 
to choose between taking unpaid leave provided by the FMLA or paid 
absence under an employer's collective bargaining agreement or other 
sick leave, sick pay, or disability plan, program, or policy of the 
employer. This change provides incentive for employers to continue 
their generous sick leave policies while providing a disincentive to 
employers considering getting rid of such employee-friendly plans, 
including those negotiated by the employer and the employee's union 
representative. Paid leave would be subject to the employer's normal 
work rules and procedures for taking such leave, including work rules 
and procedures dealing with attendance requirements.
  Despite the common belief that leave under the FMLA is necessarily 
unpaid, employers having generous sick leave policies, or who have 
worked out employee-friendly sick leave programs with unions in 
collective bargaining agreements, are being penalized by the FMLA. In 
fact, for many companies,

[[Page S10435]]

most FMLA leave has become paid leave. According to the U.S. Commission 
on Leave, 66.3 percent of FMLA leave is paid (46.7 percent fully paid). 
This existing paid leave sandwiched on top of the broad, yet vague, 
FMLA definitions has resulted in employees requesting or characterizing 
a variety of minor situations as FMLA leave.
  Mr. President, the FMLA Clarification Act is a reasonable response to 
the hundreds of concerns that have been raised about the act. It leaves 
in place the fundamental protections of the law while attempting to 
make changes necessary to restore FMLA to its original intent and to 
respond to the very legitimate concerns that have been raised. In the 
spirit of the FMLA I urge my colleagues to mark it's anniversary by 
restoring the Family and Medical Leave Act to its original 
congressional intent.
  I asked that the bill and a letter of support be printed in the 
Record.
  The material follows:

                                S. 1530

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; REFERENCES; TABLE OF CONTENTS.

       (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.).
       (c) Table of Contents.--The table of contents is as 
     follows:

Sec. 1. Short title; references; table of contents.
Sec. 2. Findings.
Sec. 3. Definition of serious health condition.
Sec. 4. Intermittent leave.
Sec. 5. Request for leave.
Sec. 6. Substitution of paid leave.
Sec. 7. Regulations.
Sec. 8. Effective date.

     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 these problems by greatly 
     expanding the Act's coverage to apply to many nonserious 
     health conditions.
       (3) Documented problems generated by the Act include 
     significant new administrative and personnel costs, loss of 
     productivity and scheduling difficulties, unnecessary 
     paperwork and recordkeeping, and other compliance problems.
       (4) 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.
       (5) The Commission on Leave, established in title III of 
     the Act (29 U.S.C. 2631 et seq.), which reported few 
     difficulties with compliance with the Act, failed to identify 
     many of the problems with compliance because the study 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.

     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 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 after each leave occurrence. An 
     employer may require an employee to take intermittent leave 
     in increments of up to \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 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) (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 employee 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 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) 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, and opinion letters 
     promulgated under the regulations, shall 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 shall take effect 180 days 
     after the date of enactment of this Act.
                                  ____

                                                The FMLA Technical


                                        Corrections Coalition,

                                            7505 Inzer Street,

                                  Springfield, VA, August 5, 1999.
     Hon. Judd Gregg,
     Chairman, Subcommittee on Children and Families,
     U.S. Senate, Washington, DC
       Dear Chairman Gregg: On behalf of the nearly 300 members of 
     the Family and Medical Leave Act Technical Corrections 
     Coalition, I am writing to commend you for introducing the 
     Family and Medical Leave Clarification Act and to offer our 
     support. This

[[Page S10436]]

     essential legislation would address the well-documented 
     problems with the law's misapplication by restoring the law 
     to reflect the original intent of Congress.
       The Coalition is a diverse, broad-based, nonpartisan group 
     of nearly 300 leading companies and associations. Members of 
     the Coalition are fully committed to complying with both the 
     spirit and the letter of the FMLA and strongly believe that 
     employers should provide policies and programs to accommodate 
     the individual work-life needs of their employees. At the 
     same time, the Coalition believes that the FMLA should be 
     fixed to protect those employees that Congress aimed to 
     assist while streamlining administrative problems that have 
     arisen. Since the FMLA is not working properly, the Coalition 
     does not support expansions to the Act.
       Thank you for the opportunity to testify before the 
     Subcommittee during your July 14, 1999 hearing. The most 
     disturbing finding of the hearing was the fact that the 
     greatest cost of the FMLA's misapplication is the cost to 
     employees themselves. A strong public record has now been 
     thoroughly established. Numerous witnesses have now 
     documented the unintended consequences of the FMLA's 
     misapplication in three Congressional hearings;
       1. The May 9, 1996 hearing in the Senate Subcommittee on 
     Children and Families; 2. The June 10, 1997 hearing in the 
     House Subcommittee on Oversight and Investigations, Committee 
     on Education and the Workforce; and 3. Your July 14, 1999 
     hearing in your Senate Subcommittee on Children and Families.
       The hearings demonstrated that the FMLA's definition of 
     serious health condition is vague and overly broad due to the 
     Department of Labor's (DOL's) interpretations. Additionally, 
     the hearings documented that the intermittent leave 
     provisions as misapplied by the DOL are complicated and 
     difficult to administer, causing many serious workplace 
     problems.
       In addition, many companies expressed that Congress should 
     consider allowing employers to permit employees to take 
     either a paid leave package under an existing collective 
     bargaining agreement or the 12 weeks of FMLA protected leave, 
     whichever is greater.
       It is now time for the Senate to move forward to enact 
     ``The Family and Medical Leave Clarification Act'' on a 
     bipartisan basis. It is our strong hope that the Family and 
     Medical Leave Clarification Act will be fully embraced by all 
     the original authors of the FMLA and advance quickly in the 
     Senate with a bipartisan spirit.
       Technical corrections do not need to be polarizing, 
     combative or controversial, but they do need to be done as 
     soon as possible, so that the FMLA operates in the manner and 
     in the spirit that Congress intended.
       We thank you for your leadership on this critical 
     legislation and look forward to working with you to ensure 
     its success. The entire FMLA Technical Corrections Coalition 
     looks forward to working with you toward that end.
           Respectfully,
                                            Deanna R. Gelak, SPHR,
                                       Executive Director.
                                 ______