[Congressional Record Volume 148, Number 35 (Friday, March 22, 2002)]
[Senate]
[Pages S2313-S2314]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE FAMILY AND MEDICAL LEAVE ACT

  Mr. DODD. Madam President, I rise to raise concern about a 5-to-4 
decision that was reached earlier this week by the Supreme Court on the 
Family and Medical Leave Act, a bill that, along with many others in 
this body, I helped write back in the 1990s. It took a long time--about 
7 years--from the time that bill was first introduced to the time it 
became law in February of 1993. But it was a singular achievement which 
improved tremendously the quality of life for millions of people who 
had worried about their dearly beloved ones--their children, their 
parents--so when their loved one was sick or they had a newborn or 
adopted a child, they could take some time off--12 weeks maximum in a 
year of unpaid leave--to be with their family during a time of crisis, 
or a ``joyous crisis,'' a birth, if you will--that is hardly a crisis 
but, nonetheless, an important period in people's lives, or a 
legitimate crisis--a child's illness or a parent they were caring for--
to be with them without losing their job.
  That is all it was: To help people, who often had been caught in the 
quandary of having to choose between the family they loved and the job 
they needed, when they needed to be with their families, yet there was 
the risk of losing their job if, in fact, they made the choice to be 
with their family.
  I pointed out, on dozens and dozens of occasions, during the debate 
over 7 years in this Chamber, that I knew countless Members of this 
body who took time away from the Senate--missed dozens of votes, never 
went to committee hearings, did not see constituents--because a child, 
a spouse, or a parent needed our colleagues to be home with them. And 
none of their constituents ever held it against them, when they came up 
for reelection, because they missed a lot of votes because they were at 
a children's hospital taking care of a child or they were with their 
wife or husband when they were desperately ill and they needed to be 
with them. Certainly, we understood. In fact, had they been here voting 
and disregarding the needs of their families, they might have been in 
greater jeopardy politically for having made that choice.
  But it seemed to me if Senators and Congressmen would make the choice 
to be with their families--and rightfully so--that we ought not ask 
average citizens to make any different choice. We wanted to provide the 
opportunity for them to do so without losing their job. That was the 
underlying thought process and the genesis of the bill.
  One of the requirements in the bill was for a general notification to 
employees of what the bill provided for: the 12 weeks of unpaid leave. 
There were some regulations that were adopted along those lines as a 
result of the passage of the bill.
  I think Sandra Day O'Connor got it right. The Court overruled the 
regulation because the regulation required specific notice to 
employees. It went beyond, if you will, you could argue, the general 
notification of the bill. But as Justice O'Connor pointed out, there 
was nothing in the bill that said you could not have additional 
requirements. You had a general notification, but there was nothing in 
the legislation, nor in the legislative history, that would have banned 
a regulation saying, you probably ought to give more specific notice to 
individuals rather than just tacking it up on a bulletin board 
someplace and saying: You have a right to 12 weeks of leave. We hope 
you get word of this.

  Her point was it would be unrealistic to assume that individual 
employees would be aware of what the law provided to them with just a 
general notification. Her suggestion was that the regulation to require 
specific notification would not be going too far. What happened here 
was the regulation also said that if you do not do that, then you are 
required to provide an additional 12 weeks of leave.
  The case, frankly, before the Court may not have been the best fact 
situation. In this particular case, the employer had been extremely 
generous to the employee, in my view. The employer had already provided 
about 30 weeks of leave for that particular employee. So it was one of 
those cases where it was not the best set of facts to make the point.
  I am in this Chamber to urge the agency, if you will, to take another 
look at these regulations. And I strongly urge that they come back and 
reissue the regulation, if you will, on the specific notification. I 
think that is the way to go. And then, in view of the Court's decision 
about any additional penalties, I would say, pare back on that some 
way. Again, leave it to legal scholars how to write this and how to 
fashion this.
  But the point is, on such a close decision--5 to 4--I do not believe 
the Court was suggesting somehow we ought to eliminate the need for 
specific notification, even though the bill talked about general 
notification. That is the point I want to make.
  This is a law that I am told has already provided benefits to more 
than 35 million people in this country in the last decade who have been 
able to take advantage of this.
  A lot of people cannot take advantage of it. I know that because it 
is unpaid leave. A lot of people find themselves in economic 
circumstances where unpaid leave is something they just can't afford to 
do. Candidly, we would never have passed a bill that would have 
required paid leave. The opposition was overwhelming to that idea. We 
have since suggested some creative ways in which States may be able to 
provide for paid leave under limited circumstances, and we are 
considering that legislation.
  Even with the unpaid provisions of this proposal, millions of people 
have been able to spend time with their families during very important 
periods in any family's life. As I said, in the situation of a newly 
arrived child, and I certainly know the joys of that, having had a 
daughter 6 months ago, knowing how important it is for my wife and 
myself to be able to spend time with Grace as she begins her new life. 
And certainly as a Member of the Senate, I can do that without any fear 
of losing my job because of it.
  There were literally millions of people who could not take time to be 
with their newborn without that fear on the table. Obviously, adoption 
makes the case clearly how important it is for a newly adopted child to 
be able to be with her new parents or his new parents during that 
bonding period.
  I don't think I have to make the case. If any of you have been to a 
children's hospital in a waiting room and seen the fear and anxiety in 
a mother's or father's face holding a child that is going into the 
hospital for some operation or into a pediatric intensive care unit, 
looking on the faces of parents with a newborn who is struggling to 
stay alive, wondering whether or not they should be there or on the 
job, as if somehow they could actually do a job while their child is 
sitting in an emergency room or an intensive care unit.
  It seemed to us logical that we provide this opportunity for people 
not to be forced into that situation. I regret we couldn't do something 
about having paid leave for people. We are one of the few countries in 
the world that does

[[Page S2314]]

not do that. Almost every other industrialized, advanced nation in the 
world provides for paid leave under these circumstances. We don't do 
that. I regret that. But I don't have 51 votes for that in this 
Chamber. I had to do what I could do. So unpaid leave is the best I 
could do.
  The fact that millions of people have been able to take advantage of 
that is something for which I am very proud. I hope we can come back to 
this issue of notice. This has been a positive benefit for a lot of 
people. But a lot of people are unaware that the law exists. Some 
general notice tacked up on a bulletin board someplace means that an 
awful lot of people probably wouldn't find out about it. Specific 
notice makes more sense to me.
  My hope is the administration will promulgate a regulation that will 
call for specific notification and tailor it accordingly so it will not 
run afoul of the Supreme Court decision reached 5 to 4 a few days ago.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from North Dakota.

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