[Congressional Record Volume 147, Number 30 (Thursday, March 8, 2001)]
[Senate]
[Pages S2072-S2074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GREGG:
  S. 489. A bill to amend the Family and Medical Leave Act of 1993 to 
clarify the Act, and for other purposes; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. GREGG. Mr. President, the Family and Medical Leave Act 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 in 
five separate congressional hearings, including one I chaired and a 
House hearing where I testified, the previous administration choose to 
ignore those problems and instead pushed for a back door expansion of 
the Act through a rule known as Baby U.I., the Birth and Adoption 
Unemployment Compensation Rule. The Baby U.I. rule allows states to 
raid their unemployment compensation trust funds for an unrelated 
program, paid family leave. As a former Governor, I am very concerned 
about the impact of the rule on state unemployment trust funds, which 
should be preserved for tough economic times.
  The Department of Labor's vague and confusing implementing 
regulations and interpretations have resulted in the FMLA being 
misapplied, misunderstood and mistakenly ignored. Employers aren't sure 
if situations like pink eye, ingrown toenails 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 technical 
corrections to the Family and Medical Leave Act and restore it to its 
original congressional intent.
  The need for FMLA technical corrections has been confirmed and 
strengthened by five congressional hearings and by the recent release 
of key surveys. Conclusive evidence of the need for corrections has now 
been established. The Congressional hearings demonstrated that the 
FMLA's definition of serious health condition is vague and overly broad 
due to DOL's interpretations. Additionally, the hearings documented 
that the intermittent leave provisions, notification and certification 
problems are causing many serious workplace problems. In addition, some 
companies testified 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.
  I am concerned that a recent decrease in paid leave for employees has 
been attributed to the Administration's problematic FMLA 
interpretations. Some research shows a decline in voluntarily provided 
paid sick leave and vacation leave by the private sector. The 2000 
SHRMR, Society for Human Resource Management, Benefits Survey found 
that paid vacation was provided by 87 percent of companies in the year 
2000 while the year before it was 94 percent. Paid sick leave was at 85 
percent last year and 74 percent this year.
  A recent survey conducted by former President Clinton's Department of 
Labor confirmed FMLA implementation problems. The Labor Department 
report found that the share of covered establishments reporting that it 
was somewhat or very easy to comply with the FMLA has declined 21.5 
percent from 1995 to 2000.
  The recent release of the SHRMR, Society for Human Resource 
Management, 2000 FMLA Survey strongly reinforces the need for FMLA 
technical corrections. Respondents to the SHRM survey stated that, on 
average, 60 percent of employees who take FMLA leave do not schedule 
the leave in advance. Consequently, managers often do not have the 
ability to plan for work disruptions. Respondents also reported that, 
in most cases, the burden of the workload from the employee on leave 
falls to employees who are not on leave. When asked whether they have 
had to grant FMLA requests they felt were not legitimate, more than 
half, 52 percent, said they had. Additionally, more than one-third, 34 
percent, of respondents said they were aware of employee complaints 
over the past year regarding a co-worker's questionable use of FMLA 
leave. The issue of intermittent leave also continues to be extremely 
difficult. Three-quarters, 76 percent, of respondents said they would 
find compliance easier if the Department of Labor allowed FMLA leave to 
be offered and tracked in half-day increments rather than by minutes.
  I am very concerned that both the SHRM and the Labor Department 
surveys show that FMLA implementation is becoming more difficult, not 
easier seven years after it has been in place. I am hopeful that the 
Family and Medical Leave Clarification Act will advance in the 107th 
Congress on a bipartisan basis to address this problem.
  The FMLA Clarification Act has the strong support of the Society for 
Human Resource Management, the

[[Page S2073]]

U.S. Chamber of Commerce, the National Association of Manufacturers, 
the American Society of Healthcare Human Resources Professionals and 
close to 300 other 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 original 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 confusing and 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 allow employers 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 position'').
  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.
  The FMLA Clarification Act is a reasonable response to the 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. I urge my colleagues to 
restore the FMLA to its original Congressional intent. I ask that the 
test of the bill and a letter of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 489

       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.

[[Page S2074]]

       ``(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.
       (e) Transitioin.--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.
                                  ____

                                                             FMLA,


                              Technical Corrections Coalition,

                                Springfield, VA, February 7, 2001.
     Hon. Judd Gregg,
     Chairman,
     Subcommittee on Children and Families,
     Hart Senate Office Building,
     U.S. Senate,
     Washington, DC.
       Dear Chairman Gregg: the Family and Medical Leave Act 
     Technical Corrections Coalition would like to commend you for 
     reintroducing the Family and Medical Leave Clarification Act.
       As you know, 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, members of the Coalition 
     believe 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.
       Unfortunately, FMLA implementation problems, which were 
     well documented during your July 14, 1999 hearing and four 
     other Congressional hearings, continue to grow. The need for 
     your FMLA technical corrections legislation has been 
     confirmed and even strengthened over the past year through 
     additional Congressional hearings and through the release of 
     new survey information: (1) the SHRM (Society for Human 
     Resource Management) 2000 FMLA Survey and (2) the new 
     Department of Labor (DOL) FMLA Survey. While the SHRM survey 
     is a more accurate national measure of FMLA implementation 
     since it was specifically directed to those actually charged 
     with FMLA compliance, both the SHRM and DOL surveys 
     essentially reached the same conclusion: FMLA problems are 
     growing. For example:
       Both the DOL and SHRM surveys found that more employers are 
     finding the FMLA and its regulations and interpretations more 
     difficult than they did several years ago.
       The Labor Department report found that the share of covered 
     establishments reporting that it was somewhat or very easy to 
     comply with the FMLA declined 21.5 percent from 1995 to 2000. 
     The fact that both the Labor Department and SHRM surveys show 
     that FMLA implementation is becoming more difficult, not 
     easier seven years after it has been in place is of great 
     concern.
       The DOL survey conducted by former President Clinton's 
     Labor Department casts significant doubt on the need for 
     federally mandated FMLA expansions as the best way to provide 
     increased flexibility for workers. For example, the Labor 
     Department survey found that the gap between covered and non-
     covered establishments has narrowed since 1995, as non-
     covered establishments are significantly more likely to offer 
     FMLA-type benefits in 2000 than they were five years earlier. 
     Interestingly, non-covered employers are more likely than 
     covered establishments to offer leave for school-related 
     functions or routine medical appointments.
       The SHRM report confirmed Congressional hearing findings 
     that the issue of intermittent leave continues to be 
     extremely difficult. Three-quarters (76 percent) of 
     respondents said they would find compliance easier if the 
     Department of Labor allowed FMLA leave to be offered and 
     tracked in half-day increments rather than by minutes. 
     Additionally, a survey by CORE, Inc. survey found that the 
     majority (54%) does not feel confident that their company is 
     tracking FMLA correctly.
       In all SHRM and Labor Department surveys, past and present, 
     the most commonly reported method of covering work when an 
     employee takes leave was to assign the work temporarily to 
     other employees. The SHRM survey showed that a full 34% of 
     human resource professionals were aware of complaints by 
     coworkers due to questionable use of FMLA.
       The fact that both the Labor Department and SHRM surveys 
     show that FMLA implementation is becoming more difficult, not 
     easier, seven years after it has been in place is of great 
     concern.
       Thank you for your leadership and continued commitment to 
     restoring the FMLA to its original Congressional intent 
     through FMLA technical corrections while preserving the 
     spirit of the Act. The entire FMLA Technical Corrections 
     Coalition looks forward to working with you to ensure its 
     success.
           Respectfully,
                                            Deanna R. Gelak, SPHR,
                                               Executive Director.
                                 ______