The Family and Medical Leave Act of 1993, as amended
Public Law 103-3
Enacted February 5, 1993
As Amended
by Section 585 of the National Defense Authorization Act for FY 2008, Public
Law [110-181] (amended text in bold italics)
Enacted January 28, 2008
An Act
To grant family and temporary medical leave under certain circumstances.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.--This Act may be cited as the "Family and Medical Leave Act of 1993".
(b) TABLE OF CONTENTS.--The table of contents is as follows:
Sec.
1. Short title; table of contents.
Sec.
2. Findings
and purposes.
TITLE I--GENERAL
REQUIREMENTS FOR LEAVE
Sec.
101. Definitions.
Sec.
102. Leave
requirement.
Sec.
103. Certification.
Sec.
104. Employment
and benefits protection.
Sec.
105. Prohibited
acts.
Sec.
106. Investigative
authority.
Sec.
107. Enforcement.
Sec.
108. Special
rules concerning employees of local educational agencies.
Sec.
109. Notice.
TITLE II--LEAVE
FOR CIVIL SERVICE EMPLOYEES
Sec.
201. Leave
requirement.
TITLE
III--COMMISSION ON LEAVE
Sec.
301. Establishment.
Sec.
302. Duties.
Sec.
303. Membership.
Sec.
304. Compensation.
Sec.
305. Powers.
Sec.
306. Termination.
TITLE
IV--MISCELLANEOUS PROVISIONS
Sec.
401. Effect
on other laws.
Sec.
402. Effect
on existing employment benefits.
Sec.
403. Encouragement
of more generous leave policies.
Sec.
404. Regulations.
Sec.
405. Effective
dates.
TITLE
V--COVERAGE OF CONGRESSIONAL EMPLOYEES
Sec.
501. Leave
for certain Senate employees.
Sec.
502. Leave
for certain House employees.
TITLE VI--SENSE
OF CONGRESS
Sec.
601. Sense
of Congress.
SEC. 2. FINDINGS AND PURPOSES.
(a)
FINDINGS.--Congress finds that--
(1)
the number of single-parent households and two-parent households in which the
single parent or both parents work is increasing significantly;
(2)
it is important for the development of children and the family unit that
fathers and mothers be able to participate in early childrearing and the care
of family members who have serious health conditions;
(3)
the lack of employment policies to accommodate working parents can force
individuals to choose between job security and parenting;
(4)
there is inadequate job security for employees who have serious health
conditions that prevent them from working for temporary periods;
(5)
due to the nature of the roles of men and women in our society, the primary
responsibility for family caretaking often falls on women, and such
responsibility affects the working lives of women more than it affects the
working lives of men; and
(6)
employment standards that apply to one gender only have serious potential for
encouraging employers to discriminate against employees and applicants for
employment who are of that gender.
(b)
PURPOSES.--It is the purpose of this Act--
(1)
to balance the demands of the workplace with the needs of families, to promote
the stability and economic security of families, and to promote national
interests in preserving family integrity;
(2)
to entitle employees to take reasonable leave for medical reasons, for the
birth or adoption of a child, and for the care of a child, spouse, or parent
who has a serious health condition;
(3)
to accomplish the purposes described in paragraphs (1) and (2) in a manner that
accommodates the legitimate interests of employers;
(4)
to accomplish the purposes described in paragraphs (1) and (2) in a manner
that, consistent with the Equal Protection Clause of the Fourteenth Amendment,
minimizes the potential for employment discrimination on the basis of sex by
ensuring generally that leave is available for eligible medical reasons
(including maternity-related disability) and for compelling family reasons, on
a gender-neutral basis; and
(5)
to promote the goal of equal employment opportunity for women and men, pursuant
to such clause.
TITLE I--GENERAL REQUIREMENTS FOR LEAVE
SEC.
101. DEFINITIONS.
(1)
COMMERCE.--The terms "commerce" and "industry or activity
affecting commerce" mean any activity, business, or industry in commerce or
in which a labor dispute would hinder or obstruct commerce or the free flow of
commerce, and include "commerce" and any "industry affecting
commerce", as defined in paragraphs (1) and (3) of section 501 of the
Labor Management Relations Act, 1947 (29 U.S.C. 142 (1) and (3)).
(2)
ELIGIBLE EMPLOYEE.--
(A)
IN GENERAL.--The term "eligible employee" means an employee who has
been employed
§ (i) for at least 12 months by the employer with respect to whom leave is requested under section 102; and
§ (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.
(B)
EXCLUSIONS.--The term "eligible employee" does not include
§ (i) any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code (as added by title II of this Act); or
§ (ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.
(C)
DETERMINATION.--For purposes of determining whether an employee meets the hours
of service requirement specified in subparagraph
§ (A)(ii), the legal standards established under section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) shall apply.
(3)
EMPLOY; EMPLOYEE; STATE.--The terms "employ", "employee",
and "State" have the same meanings given such terms in subsections
(c), (e), and (g) of section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(c), (e), and (g)).
(4)
EMPLOYER.--
(A)
IN GENERAL.--The term "employer"
§ (i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
§ (ii) includes--
§ (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and
§ (II) any successor in interest of an employer; and
§ (iii) includes any "public agency", as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).
(B)
PUBLIC AGENCY.--For purposes of subparagraph (A)(iii), a public agency shall be
considered to be a person engaged in commerce or in an industry or activity affecting
commerce.
(5)
EMPLOYMENT BENEFITS.--The term "employment benefits" means all
benefits provided or made available to employees by an employer, including
group life insurance, health insurance, disability insurance, sick leave,
annual leave, educational benefits, and pensions, regardless of whether such
benefits are provided by a practice or written policy of an employer or through
an "employee benefit plan", as defined in section 3(3) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(3)).
(6)
HEALTH CARE PROVIDER.--The term "health care provider" means--
(A)
a doctor of medicine or osteopathy who is authorized to practice medicine or
surgery (as appropriate) by the State in which the doctor practices; or
(B)
any other person determined by the Secretary to be capable of providing health
care services.
(7)
PARENT.--The term "parent" means the biological parent of an employee
or an individual who stood in loco parentis to an employee when the employee
was a son or daughter.
(8)
PERSON.--The term "person" has the same meaning given such term in
section 3(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(a)).
(9)
REDUCED LEAVE SCHEDULE.--The term "reduced leave schedule" means a
leave schedule that reduces the usual number of hours per workweek, or hours
per workday, of an employee.
(10)
SECRETARY.--The term "Secretary" means the Secretary of Labor.
(11)
SERIOUS
HEALTH CONDITION. The term "serious health condition" means an
illness, injury, impairment, or physical or mental condition that involves
(A)
inpatient care in a hospital, hospice, or residential medical care facility; or
(B)
continuing treatment by a health care provider.
(12)
SON OR DAUGHTER.--The term "son or daughter" means a biological,
adopted, or foster child, a stepchild, a legal ward, or a child of a person
standing in loco parentis, who is--
(A)
under 18 years of age; or
(B)
18 years of age or older and incapable of self-care because of a mental or
physical disability.
(13)
SPOUSE.--The term "spouse" means a husband or wife, as the case may
be.
(14)
ACTIVE DUTY.—The term “active duty” means duty under a call or order to active
duty under a provision of law referred to in section 101(a)(13)(B) of title 10,
United States Code.
(15)
CONTINGENCY OPERATION.—The term “contingency operation” has the same meaning
given such term in section 101(a)(13) of title 10, United States Code.
(16)
COVERED SERVICEMEMBER.—The term “covered servicemember” means a member of the
Armed Forces, including a member of the National Guard or Reserves, who is
undergoing medical treatment, recuperation, or therapy, is otherwise in
outpatient status, or is otherwise on the temporary disability retired list,
for a serious injury or illness.
(17)
OUTPATIENT STATUS.—The term “outpatient status”, with respect to a covered
servicemember, means the status of a member of the Armed Forces assigned to—
(A) a
military medical treatment facility as an outpatient; or
(B) a
unit established for the purpose of providing command and control of members of
the Armed Forces receiving medical care as outpatients.
(18)
NEXT OF KIN.—The term ”next of kin”, used with respect to an individual, means
the nearest blood relative of that individual.
(19) SERIOUS
INJURY OR ILLNESS.—The term “serious injury or illness”, in the case of a
member of the Armed Forces, including a member of the National Guard or
Reserves, means an injury or illness incurred by the member in line of duty on
active duty in the Armed Forces that may render the member medically unfit to
perform the duties of the member’s office, grade, rank, or rating.
(a)
IN GENERAL.--
(1)
ENTITLEMENT TO LEAVE.--Subject to section 103, an eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month period for one
or more of the following:
§ (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
§ (B) Because of the placement of a son or daughter with the employee for adoption or foster care.
§ (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
§ (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
§ (E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
(2)
EXPIRATION OF ENTITLEMENT.--The entitlement to leave under subparagraphs (A)
and (B) of paragraph (1) for a birth or placement of a son or daughter shall
expire at the end of the 12-month period beginning on the date of such birth or
placement.
(3)
SERVICEMEMBER FAMILY LEAVE.—Subject to section 103, an eligible employee who is
the spouse, son, daughter, parent, or next of kin of a covered servicemember
shall be entitled to a total of 26 workweeks of leave during a 12-month period
to care for the servicemember. The leave described in this paragraph shall only
be available during a single 12-month period.
(4)
COMBINED LEAVE TOTAL.—During the single 12-month period described in paragraph
(3), an eligible employee shall be entitled to a combined total of 26 workweeks
of leave under paragraphs (1) and (3). Nothing in this paragraph shall be
construed to limit the availability of leave under paragraph (1) during any
other 12-month period.
(b)
LEAVE
TAKEN INTERMITTENTLY OR ON A REDUCED LEAVE SCHEDULE.
(1)
IN GENERAL.--Leave under subparagraph (A) or (B) of subsection (a)(1) shall not
be taken by an employee intermittently or on a reduced leave schedule unless
the employee and the employer of the employee agree otherwise. Subject to
paragraph (2), subsection (e)(2), and subsection (b)(5) or (f) (as
appropriate) of section 103, leave under subparagraph (C) or (D) of
subsection (a)(1) or under subsection (a)(3) may be taken
intermittently or on a reduced leave schedule when medically necessary. Subject
to subsection (e)(3) and section 103(f), leave under subsection (a)(1)(E) may
be taken intermittently or on a reduced leave schedule. The taking of
leave intermittently or on a reduced leave schedule pursuant to this paragraph
shall not result in a reduction in the total amount of leave to which the
employee is entitled under subsection (a) beyond the amount of leave actually
taken.
(2)
ALTERNATIVE
POSITION.-- If an employee requests intermittent leave, or leave on a
reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1)
or under subsection (a)(3), that is foreseeable based on planned
medical treatment, the employer may require such employee to transfer
temporarily to an available alternative position offered by the employer for
which the employee is qualified and that--
§ (A) has equivalent pay and benefits; and
§ (B) better accommodates recurring periods of leave than the regular employment position of the employee.
(c)
UNPAID
LEAVE PERMITTED. -- Except as provided in subsection (d), leave granted
under subsection (a) may consist of unpaid leave. Where an employee is
otherwise exempt under regulations issued by the Secretary pursuant to section
13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the
compliance of an employer with this title by providing unpaid leave shall not
affect the exempt status of the employee under such section.
(d)
RELATIONSHIP
TO PAID LEAVE.--
(1)
UNPAID LEAVE.--If an employer provides paid leave for fewer than 12 workweeks (or
26 workweeks in the case of leave provided under subsection (a)(3)),
the additional weeks of leave necessary to attain the 12 workweeks (or 26
workweeks, as appropriate) of leave required under this title may be
provided without compensation.
(2)
SUBSTITUTION OF PAID LEAVE.--
§ (A) IN GENERAL.--An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), (C), or (E) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.
§ (B) SERIOUS HEALTH CONDITION.--An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under subparagraph (C) or (D) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection, except that nothing in this title shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the 26-week period of such leave under such subsection, except that nothing in this title requires an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave.
(e)
FORESEEABLE
LEAVE.--
(1)
REQUIREMENT OF NOTICE.--In any case in which the necessity for leave under
subparagraph (A) or (B) of subsection (a)(1) is foreseeable based on an
expected birth or placement, the employee shall provide the employer with not
less than 30 days' notice, before the date the leave is to begin, of the
employee's intention to take leave under such subparagraph, except that if the
date of the birth or placement requires leave to begin in less than 30 days,
the employee shall provide such notice as is practicable.
(2)
DUTIES OF EMPLOYEE.--In any case in which the necessity for leave under
subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) is
foreseeable based on planned medical treatment, the employee--
§ (A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
§ (B) shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(3)
NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the
necessity for leave under subsection (a)(1)(E) is foreseeable, whether because
the spouse, or a son, daughter, or parent, of the employee is on active duty,
or because of notification of an impending call or order to active duty in
support of a contingency operation, the employee shall provide such notice to
the employer as is reasonable and practicable.
(f)
SPOUSES
EMPLOYED BY THE SAME EMPLOYER.—
(1)
IN GENERAL.—In any case in which a husband and wife entitled to leave
under subsection (a) are employed by the same employer, the aggregate number of
workweeks of leave to which both may be entitled may be limited to 12 workweeks
during any 12-month period, if such leave is taken—
§ (A) under subparagraph (A) or (B) of subsection (a)(1); or
§ (B) to care for a sick parent under subparagraph (C) of such subsection.
(2)
SERVICEMEMBER FAMILY LEAVE.—
§ (A) IN GENERAL.—The aggregate number of workweeks of leave to which both that husband and wife may be entitled under subsection (a) may be limited to 26 workweeks during the single 12-month period described in subsection (a)(3) if the leave is—
§ (i) leave under subsection (a)(3); or
§ (ii) a combination of leave under subsection (a)(3) and leave described in paragraph (1).
§ (B) BOTH LIMITATIONS APPLICABLE.—If the leave taken by the husband and wife includes leave described in paragraph (1), the limitation in paragraph (1) shall apply to the leave described in paragraph (1).
SEC. 103. CERTIFICATION.
(a)
IN GENERAL.--An employer may require that a request for leave under
subparagraph (C) or (D) of paragraph (1) or paragraph (3) of section
102(a) be supported by a certification issued by the health care
provider of the eligible employee or of the son, daughter, spouse, or parent of
the employee, or of the next of kin of an individual in the case of leave
taken under such paragraph (3), as appropriate. The employee shall
provide, in a timely manner, a copy of such certification to the employer.
(b)
SUFFICIENT
CERTIFICATION.--Certification provided under subsection (a) shall be
sufficient if it states
(1)
the date on which the serious health condition commenced;
(2)
the probable duration of the condition;
(3)
the appropriate medical facts within the knowledge of the health care provider
regarding the condition;
(4)(A)
for purposes of leave under section 102(a)(1)(C), a statement that the eligible
employee is needed to care for the son, daughter, spouse, or parent and an
estimate of the amount of time that such employee is needed to care for the
son, daughter, spouse, or parent; and
(B) for purposes of leave under section 102(a)(1)(D), a statement that the
employee is unable to perform the functions of the position of the employee;
(5)
in the case of certification for intermittent leave, or leave on a reduced
leave schedule, for planned medical treatment, the dates on which such
treatment is expected to be given and the duration of such treatment;
(6)
in the case of certification for intermittent leave, or leave on a reduced
leave schedule, under section 102(a)(1)(D), a statement of the medical
necessity for the intermittent leave or leave on a reduced leave schedule, and
the expected duration of the intermittent leave or reduced leave schedule; and
(7)
in the case of certification for intermittent leave, or leave on a reduced
leave schedule, under section 102(a)(1)(C), a statement that the employee's
intermittent leave or leave on a reduced leave schedule is necessary for the
care of the son, daughter, parent, or spouse who has a serious health
condition, or will assist in their recovery, and the expected duration and
schedule of the intermittent leave or reduced leave schedule.
(c)
SECOND
OPINION.--
(1)
IN GENERAL.--In any case in which the employer has reason to doubt the validity
of the certification provided under subsection (a) for leave under subparagraph
(C) or (D) of section 102(a)(1), the employer may require, at the expense of
the employer, that the eligible employee obtain the opinion of a second health
care provider designated or approved by the employer concerning any information
certified under subsection (b) for such leave.
(2)
LIMITATION.--A health care provider designated or approved under paragraph (1)
shall not be employed on a regular basis by the employer.
(d)
RESOLUTION
OF CONFLICTING OPINIONS.--
(1)
IN GENERAL.--In any case in which the second opinion described in subsection
(c) differs from the opinion in the original certification provided under
subsection (a), the employer may require, at the expense of the employer, that
the employee obtain the opinion of a third health care provider designated or
approved jointly by the employer and the employee concerning the information
certified under subsection (b).
(2)
FINALITY.--The opinion of the third health care provider concerning the
information certified under subsection (b) shall be considered to be final and
shall be binding on the employer and the employee.
(e)
SUBSEQUENT
RECERTIFICATION.--The employer may require that the eligible employee
obtain subsequent recertifications on a reasonable basis.
(f)
CERTIFICATION RELATED TO ACTIVE DUTY OR CALL TO ACTIVE DUTY.—An employer may
require that a request for leave under section 102(a)(1)(E) be supported by a
certification issued at such time and in such manner as the Secretary may by
regulation prescribe. If the Secretary issues a regulation requiring such
certification, the employee shall provide, in a timely manner, a copy of such
certification to the employer.
SEC. 104. EMPLOYMENT
AND BENEFITS PROTECTION.
(a)
RESTORATION
TO POSITION.--
(1)
IN GENERAL.--Except as provided in subsection (b), any eligible employee who
takes leave under section 102 for the intended purpose of the leave shall be
entitled, on return from such leave--
§ (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
§ (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
(2)
LOSS OF BENEFITS.--The taking of leave under section 102 shall not result in
the loss of any employment benefit accrued prior to the date on which the leave
commenced.
(3)
LIMITATIONS.--Nothing in this section shall be construed to entitle any
restored employee to--
§ (A) the accrual of any seniority or employment benefits during any period of leave; or
§ (B) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(4)
CERTIFICATION.--As a condition of restoration under paragraph (1) for an
employee who has taken leave under section 102(a)(1)(D), the employer may have
a uniformly applied practice or policy that requires each such employee to
receive certification from the health care provider of the employee that the
employee is able to resume work, except that nothing in this paragraph shall
supersede a valid State or local law or a collective bargaining agreement that
governs the return to work of such employees.
(5)
CONSTRUCTION.--Nothing in this subsection shall be construed to prohibit an
employer from requiring an employee on leave under section 102 to report
periodically to the employer on the status and intention of the employee to
return to work.
(b)
EXEMPTION CONCERNING CERTAIN HIGHLY COMPENSATED EMPLOYEES.--
(1)
DENIAL OF RESTORATION.--An employer may deny restoration under subsection (a)
to any eligible employee described in paragraph (2) if--
§ (A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
§ (B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
§ (C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
(2)
AFFECTED EMPLOYEES.--An eligible employee described in paragraph (1) is a
salar