[Congressional Record Volume 146, Number 63 (Friday, May 19, 2000)]
[Extensions of Remarks]
[Page E788]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FAMILY AND MEDICAL LEAVE CLARIFICATION ACT

                                 ______
                                 

                        HON. WILLIAM F. GOODLING

                            of pennsylvania

                    in the house of representatives

                          Friday, May 19, 2000

  Mr. GOODLING. Mr. Speaker, today I introduce a bill that would make 
reasonable, and much needed change to the Family and Medical Leave Act 
(FMLA) of 1993. The Family and Medical Leave Clarification Act will 
help implement and enforce the FMLA in a manner consistent with 
Congress' original intent.
  I do not think anyone would dispute that the FMLA has helped those 
with serious family and medical crisis. However, some of the 
troublesome results are difficult to ignore. There is compelling 
evidence of problems with the implementation and the FMLA, problems 
affecting both employers and employees. The FMLA is still a relatively 
young law. In fact, the final rule implementing the Act was not 
published until 1995. As with any new law, there are some growing pains 
that need to be sorted out.
  Testimony before the Committee on Education and the Workforce has 
established evidence of myriad problems in the workplace caused by the 
FMLA. These problems include: the administrative burden of allowing 
leave to be taken in increments of as little as six minutes; the 
additional burdens from overly broad and confusing regulations of the 
FMLA, not the least of which is the Department of Labor's ever-
expanding definition of `` serious health condition;'' and inequities 
stemming from employers with generous leave policies in effect being 
penalized under the FMLA for having those policies.
  Mr. Speaker, the FMLA created a Commission on Leave, which was 
charged with reporting the FMLA's impact. Upon release of the 
Commission's report in April 1996, we were told that all was well with 
the FMLA. But contrary to these assertions, the report was not a 
complete picture. In fact the Family and Medical Leave Act Commission 
admitted its report was only an ``initial assessment.'' Its two year 
study began in November of 1993, just three months after the Act even 
applied to most employers and more than a year before the release of 
final FMLA regulations in January of 1995.
  Simply put, the Commission's report was based on old and incomplete 
data studies long before employers or employees could have been fully 
aware of the FMLA's many requirements and responsibilities.
  Mr. Speaker, the first area the FMLA Clarification Act addresses is 
the Department of Labor's overly broad interpretation of the term 
``serious health condition.'' In passing the FMLA, Congress stated that 
the term ``serious health condition'' was not intended to cover short-
term conditions for which treatment and recovery were very brief, 
recognizing specifically in Committee report language that ``it is 
expected that such conditions will fall within the most modest sick 
leave policies.''
  Despite Congressional intent, 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 
three 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 FMLA Clarification Act elects Congress' original intent for the 
meaning of the term ``serious health condition,'' by taking word-for-
word from the Democrat Committee report, and adding to the status, the 
then-Majority's explanation of what types of conditions it intended the 
Act to cover. It also repeals the Department's current regulations on 
the issue and directs the agency to go back to the drawing board and 
issue regulations consistent with the new definition.
  My bill also minimizes tracking and administrative burdens while 
maintaining the original intent of the law, by permitting employers to 
require employees to take ``intermittent'' leave, which is FMLA leave 
taken in separate blocks of time due to a single qualifying reason, in 
increments of up to one-half of a work day.
  Congress drafted the FMLA to allow employees to take leave less than 
full-day increments. Congress also intended to address situations where 
an employee needed to take leave for intermittent treatments, e.g., for 
chemotherapy or radiation treatments, or other medical appointments. 
Granting leave for these conditions has not been a significant problem.
  However, the regulations provide that an employer ``may limit leave 
increments to the shortest period of time that the employer's payroll 
system uses to account for absences or use of leave, provided it is one 
hour or less.'' Since some employers track in increments as small as 
six or eight minutes, the regulations have resulted in a host of 
problems related to tracking the leave and in maintaining attendance 
control policies. In many situations, it is difficult to know when the 
employee will be at work.
  In many positions, employees with frequent, unpredictable absences 
can severely impact an employer's productivity and overburden their co-
workers when employers do not know if certain employees will be at 
work. Allowing an employer to require an employee to take intermittent 
leave in increments of up to one-half of a work day would ease the 
burden significantly for employers, both in terms of necessary 
paperwork and with respect to being able to provide effective coverage 
for absent employees.
  Where the employer does not exercise the right to require the 
employee to substitute other employer-provided leave under the FMLA, 
the FMLA Clarification Act shifts to the employee the requirement to 
request leave to be designated as FMLA leave. In addition, the Act 
requires the employee to provide written application of foreseeable 
leave within five working days, and within a time period extended as 
necessary for unforeseeable leave, if the employee is physically or 
mentally incapable of providing notice or submitting the application.
  Requiring the employee to request that leave be designated as FMLA 
leave eliminates the need for the employer to question the employee and 
pry into the employee's private and family matters, as required under 
current law. This requirement 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.
  With respect to leave taken because of the employee's own serious 
health condition, the FMLA Clarification Act 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 discontinuing such employee-friendly plans, 
including those negotiated by the employer and the employees' 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 that 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, most FMLA leave has become paid leave because 
the regulations state that an employer must observe any employment 
benefit program or plan that provides rights greater than the FMLA.
  Because employers cannot use the taking of FMLA leave as a negative 
factor in employment actions, such as hiring, promotions or 
disciplinary actions, nor can they count FMLA leave under ``no fault'' 
attendance policies, the regulations prohibit employers from using 
disciplinary attendance policies to manage employees' absences.
  Mr. Speaker, the Family and Medical Leave Clarification Act relieves 
many of the unnecessary and unreasonable burdens imposed on employers 
and employees by the Department of Labor's implementing regulations, 
without rolling back the rights of employees under the FMLA. Finally, 
my bill encourages employers to continue to provide generous paid leave 
policies to their employees.
  I urge my colleagues in joining me in cosponsoring this measured and 
necessary mid-course correction to providing effective FMLA processes.

                          ____________________