[Congressional Record Volume 149, Number 21 (Wednesday, February 5, 2003)]
[Senate]
[Pages S2004-S2007]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GREGG.
  S. 320. 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 
when employees plan 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. These problems have been well documented in six separate 
congressional hearings, including one I chaired and a House hearing 
where I testified.
  Problems with the FMLA implementation have been documented in the 
courts. The validity of 13 different Department of Labor regulations 
relating to the Act has been challenged in 64 reported court decisions. 
Included in this, of course, is the Supreme Court's invalidation of one 
of the Department's regulations in the 2002 case of Ragsdale v. 
Wolverine Worldwide Inc. And, yesterday's Washington Post reported that 
there have been some 1,300 Federal cases dealing with various aspects 
of the law, according to the Department of Labor.
  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, today I am 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 six 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 the Department of Labor'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 
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 in 
1999, and decreased to 74 percent the following 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 Society for Human Resource Management, 
SHRM, 2003 FMLA Survey strongly reinforces the need for FMLA technical 
corrections. Respondents to the SHRM survey stated that, on average, 
more than half, or 52 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. Yesterday's Washington Post 
article reported that the biggest thing the Department of Labor hears 
about is the ``chronic use of unforseen, intermittent leave.'' 
Respondents to the SHRM survey also reported that, in most cases, the 
burden of the workload from the employee on leave falls to employees 
who are not on

[[Page S2006]]

leave. When asked whether they have had to grant FMLA requests they 
felt were not legitimate, 50 percent said they had. Additionally, more 
than one-third, or 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. SHRM's 2000 FMLA survey showed that three-quarters, or 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, ten years after it has been in place. I am hopeful that the 
Family and Medical Leave Clarification Act will advance in the 108th 
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 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 that make up the Family and Medical Leave Act Technical 
Corrections Coalition. 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.''
  On the other hand, 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 
that 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 that 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. 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. 
For example, in the 1995 case of Freemon v. Foley, in the Northern 
District of Illinois, the 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.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 320

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

     SECTION 1. SHORT TITLE; REFERENCES.

       (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.).

     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 those problems by greatly 
     expanding the Act's coverage to apply to many nonserious 
     health conditions.
       (3) Those problems are also documented in a review of 
     litigation under the Act. The validity of 13 different 
     Department of Labor regulations relating to the Act has been 
     challenged in 64 reported court decisions.
       (4) From 1996 through 2002, 6 congressional hearings (2 in 
     the Senate and 4 in the House of Representatives) documented 
     numerous implementation problems with the Act due to the 
     Department of Labor's misapplication of the Act through some 
     of its regulations and interpretations.
       (5) Documented problems generated by the Act include 
     significant new administrative and personnel costs, loss of 
     productivity,

[[Page S2007]]

     scheduling difficulties, unnecessary paperwork and 
     recordkeeping, and other compliance problems.
       (6) 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.
       (7) Administrative problems associated with the use of 
     intermittent leave under the Act are a well-documented issue. 
     Approximately \3/4\ (76 percent) of the respondents to a 2000 
     survey by the Society for Human Resource Management said they 
     would find compliance easier if the Department of Labor 
     allowed covered leave to be offered and tracked in increments 
     of half days rather than minutes.
       (8) The Commission on Leave, established in title III of 
     the Act (29 U.S.C. 2631 et seq.) which in 1996 reported few 
     difficulties with compliance with the Act, failed to identify 
     many of the problems with compliance because the survey 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.
       (9) A more recent Department of Labor survey, released in 
     January 2001 as an update requested by Congress to the 1996 
     Commission on Leave report, found that between 1995 and 2000, 
     there had been a 21.5 percent decline in the share of covered 
     establishments reporting that it was somewhat easy or very 
     easy to comply with the Act.
       (10) According to the Society for Human Resource Management 
     2003 FMLA Survey, 50 percent of human resource professionals 
     indicated that they have had to grant leave requests under 
     the Act that they did not believe were legitimate because of 
     the Department of Labor's interpretations, and 34 percent of 
     human resource professionals were aware of employee 
     complaints in the past 12 months due to coworkers' 
     questionable use of leave under the Act.

     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 a heart bypass or valve 
     operation, a back 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 involved after each leave 
     occurrence. An employer may require an employee to take 
     intermittent leave under this Act in increments of up to (and 
     including) \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 leave schedule under this Act to 
     take leave for the duration of the work or assignment 
     involved, 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 employer 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 subsection 
     (a)(1)(D), if an employer provides a paid absence under the 
     employer's collective bargaining agreement, an employee 
     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 described in paragraph 
     (1), and opinions letters promulgated under the regulations, 
     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 take effect 180 days after 
     the date of enactment of this Act.
                                 ______