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The Family and Medical Leave Act of 1993 (FMLA; P.L. 103-3, as amended) entitles eligible employees to unpaid, job-protected leave for certain family and medical needs, with continuation of group health plan benefits.
Through the act, Congress sought to strike a balance between workplace responsibilities and workers' growing need to take leave for significant family and medical events. Subsequently, Congress added new categories of leave that allow eligible employees to address certain military exigencies stemming from the deployment of a close family member to a foreign country and to care for a servicemember with a serious injury or illness who is a close family member. The act has also been amended to expand access to certain legislative branch employees and to clarify eligibility criteria for airline flight crew. FMLA was last amended in 2009.
TheFMLA remains an issue of interest for Members, and the 114th Congress is consideringconsidered several proposals to amend FMLA leavethe act in various ways:
The Family and Medical Leave Act of 1993 (FMLA; P.L. 103-3, as amended) entitles eligible employeesemployees to unpaid, job-protected leave for certain family and medical needs, with continuationcontinuation of group health plan benefits.1
The 114th Congress is consideringconsidered several bills to amend the FMLA. These proposals seeksought to create new entitlements (i.e., provide additional leave time); expand categories of permissible leave by creating new FMLA-qualifying uses of leave and by expanding the circumstances under which existing leave categories may be used; and modify employee eligibility requirements, generally and for specific worker groups.
The FMLA requires that covered employers grant up to 12 workweeks of leave in a 12-month period to eligible employees for one or more of the following reasons:
In addition, the act provides up to 26 workweeks of leave in a single 12-month period to eligible employees for the care of a covered military servicemember (including certain veterans) with a serious injury or illness that was sustained or aggravated in the line of duty while on active duty.
In general, to be eligible for FMLA leave, an employee must
Private-sector employers are covered by the act if they engaged in commerce and had 50 or more employees for 20 weeks in the current or last calendar year. The FMLA also applies to public agencies (i.e., federal, state, and local governments), which are covered employers regardless of their staffing levels in the previous or current calendar year. However, public-sector employees must still meet the worksite coverage requirement (i.e., 50 employees within 75 miles of the worksite) to be eligible for FMLA leave.
Since its passage in 1993, the FMLA has been amended four times to cover certain legislative branch employees (P.L. 104-1); create and then modify a new entitlement for military family leave (P.L. 110-181 and P.L. 111-84, respectively); and modify the hours-of-service eligibility requirement for airline flight crew (P.L. 111-119). Table 1 summarizes the act's legislative history.
Public Law |
Date Enacted |
Effect |
P.L. 103-3, Family and Medical Leave Act of 1993 |
February 5, 1993 |
Created an entitlement for eligible employees to unpaid, job-protected leave for certain medical and family caregiving purposes, with continuation of group health plan benefits. |
P.L. 104-1, Congressional Accountability Act of 1995 |
January 23, 1995 |
Amended the FMLA to add coverage of Title I provisions to the Library of Congress and the Government Accountability Office. Repealed Title V of the act that provided coverage to select Senate and House employees, and provides instead that FMLA Sections 101-105 (29 U.S.C. §2611-2615) (alongside several other employment and workplace laws) apply to certain congressional employees. |
P.L. 110-181, National Defense Authorization Act for Fiscal Year 2008 |
January 28, 2008 |
Created two types of military family leave: (1) qualifying military exigency leave, available only to private-sector employees with a close family member in the National Guard or Reserves and (2) leave to care for a covered servicemember with a serious injury or illness. |
P.L. 111-84, National Defense Authorization Act for Fiscal Year 2010 |
October 28, 2009 |
Modified and expanded the military family leave provisions. For military exigency leave, it
For military caregiver leave, it |
P.L. 111-119, Airline Flight Crew Technical Correction Act |
December 21, 2009 |
Amended the FMLA to include a separate hours-of-service eligibility criterion for airline flight crew employees, charged the DOL with developing a method for calculating the leave entitlement for these employees, and created new reporting requirements for airline flight crew employers. |
Source: Congressional Research Service.
Several bills have beenwere introduced in the 114th Congress to amend the FMLA. These proposals seeksought to create new entitlements (i.e., provide additional leave time), expand categories of permissible leave by creating new FMLA-qualifying uses of leave or expanding the circumstances under which existing leave categories may be used, and modify employee eligibility requirements. Some proposals would amendhave amended the act in multiple areas; bill-by-bill summaries are in Table A-1.
Currently, eligible employees are entitled to 12 workweeks of FMLA leave in a 12-month period to address certain family and medical needs and 26 workweeks in a single 12-month period to provide care to a seriously ill or injured servicemember. Two bills would createhave created an additional entitlement to leave for similar purposes, with some differences:
In both cases, employees would be required to notify employers of their intention to use such leave at least seven days in advance of the leave, where possible. This 7-day notice requirement is shorter than the 30-day notice required, where possible, for a foreseeable need to use FMLA leave for the arrival of a new child, a serious health condition, or the serious injury or illness of a servicemember.6
Under current law, eligible employees may use FMLA leave to care for and bond with a new child, for a serious health condition that renders the employee unable to perform at least one essential function of his or her job, to provide care to a close family member with a serious health condition, and for certain military family needs.7 Congress is consideringThe 114th Congress considered several proposals to expand this set of qualifying uses of FMLA leave by (1) creating new leave categories, and (2) broadening the circumstances under which employees may use existing leave categories.
Bills introduced in the 114th Congress would allowhave allowed employees to use the existing FMLA leave entitlement for bereavement, needs related to domestic violence experienced by the employee or a close family member, family involvement, and medical needs related to certain service-connected disabilities for veterans.8
The following proposals would permithave permitted eligible employees to use the existing FMLA leave entitlement for the death of a close family member (or members):9
S. 473 would have further allowallowed employees to use the existing 12-workweek entitlement to address medical, legal, and other needs related to domestic violence experienced by the employee or the employee's child (including an adult child) or parent.12
S. 473 would granthave granted employees limited use of the existing 12-workweek leave entitlement for family involvement, which the bill definesdefined as leave to (1) participate in school-related activities or school-sponsored extracurricular activities for a son or daughter, where school refers to an elementary or secondary school, Head Start program, or a licensed child care facility; or (2) provide transportation to or attend a medical or dental appointment for a spouse, child of any age, or a parent.13 Employees would be able to use family involvement leave for up to 24 hours in a 12-month period.14
The bills discussed in the "Proposals to Create New FMLA Leave Entitlements" section of this report would createhave created an additional entitlement to leave for similar family involvement purposes.
H.R. 5165 would have permittedpermit employees to use the current 12-workweek entitlement for "hospital care or medical services as a veteran for a service-connected disability" that is currently rated at 30% or for which the veteran retired from the Armed Forces by reason of service-connected disability and which was rated at 30% or higher at the time of retirement.15
Several proposals seeksought to expand employees' options for using the current set of FMLA-qualifying uses of leave by either (1) expanding the set of relationships for which an employee may use family leave or (2) amending definitions related to the current entitlement.
Under current law, an employee may use FMLA leave to assist or provide care to the following sets of family members:
The following legislative proposals would expandhave expanded the groups of family members for whom FMLA leave may be used for caregiving purposes.
For the arrival of a new son or daughter by birth or placement (within 12 months of arrival):
For needs related to a family member's serious health condition:
For military exigency leave:
For military caregiver leave:
The 114th Congress is consideringconsidered legislation that would broaden or clarifyhave broadened or clarified current FMLA-qualifying uses of leave by amending FMLA definitions of son or daughter and serious health condition.
Under current law, FMLA defines son or daughter as 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."17 As noted elsewhere in this report, S. 473, H.R. 5519, and H.R. 5701 would amendhave amended the FMLA definition of son or daughter to include children of "any age," effectively expanding current FMLA-qualifying uses of leave to include adult children. S. 473 and H.R. 5519 would also amendhave amended the definition to include a child of a domestic partner; likewise broadening the applicability of this leave.
The act defines serious health condition as "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."18 Neither the act nor its accompanying regulations provide an exhaustive list of conditions that meet this definition; consequently, the determination of a serious health condition is typically treated on a case-by-case basis.19 S. 2584 and H.R. 4616 would have, among other things, amended the act to specify that a "physical or mental condition" as referenced in the statutory definition of a serious health condition includes recovery from surgery related to organ donation. 20 S. 2584 and H.R. 4616 would not providehave provided that such recovery, on its own, constitutes a serious health condition; statutory tests concerning inpatient care or continuing treatment by a health care provider would still need to be met.21
The 114th Congress is consideringconsidered two proposals to amend general eligibility requirements for employees seeking to use FMLA leave and two proposals to amend eligibility requirements for specific worker groups.
In general, to be eligible for FMLA leave, an employee must work for a covered employer; have at least 1,250 hours of service in the 12 months prior to the start of leave;22 have worked for the employer for 12 months; and work at a location where the employer has 50 or more employees within 75 miles of the worksite. The 114th Congress is consideringconsidered two proposals to amend these general eligibility requirements for employees seeking to use FMLA leave. They are
Two bills proposeproposed new eligibility requirements for certain veterans with service-connected disabilities and for education support professionals.
As described earlier, H.R. 5165 wouldproposed to provide a new FMLA-qualifying use of leave for veterans with a service-connected disability rated at 30% or higher. The bill further providesprovided separate eligibility requirements that would allowhave allowed certain veterans to access this new FMLA-protected leave without meeting the standard 12 months and 1,250 hours (over the last 12 months) of employment requirement.25
ForThe bill proposed that for employees who are veterans with a service-connected disability rated at 30% or higher by the Secretary of Veterans Affairs:
For employees who are veterans with a service-connected disability that is not currently rated at 30% or higher by the Secretary of Veterans Affairs, but retired from the Armed Forces by reason of service-connected disability that was rated at 30% or higher using the schedule in use by the VA at the time of retirement, the bill proposed that:
The effect of the separate eligibility requirement is twofold. First, it would permithave permitted veterans (e.g., who are new employees) to access FMLA leave for service-connected-disability medical needs sooner than the standard 12-month requirement. Second, because the hours-of-service requirement is also adjusted, it may facilitatemight have facilitated some veterans' year-to-year use of this leave.26
S. 3444 would createhave created a separate hours-of-service requirement for educational support professionals (ESP). The bill definesdefined an ESP as an employee of "a public elementary or secondary school or public institution of higher education, that may include (aa) a para educator that provides instructional or non-instructional support; and (bb) a member of the secretarial, clerical, or administrative support staff."27
Pursuant to S. 3444, an ESP would meet the hours-of-service requirement for eligibility if during the previous 12 months, the employee worked (for the current employer), at least (1) an average of 60 hours per month or (2) 60% of the "applicable total monthly hours expected for the employee's job description and duties (as assigned for the school year preceding the school year during which the hours of service are calculated)" on average. The proposal would also allowhave allowed the Secretary of Labor to create separate rules for calculating the leave entitlement of ESPs, but would not change the size of the entitlement available to them.
Bill Number |
Leave Entitlement |
Creates a New Use of Leave |
Amends an Existing Use of Leave |
Amends Eligibility Requirements |
— |
|
|
— |
|
— |
|
— |
— |
|
— |
— |
|
— |
|
— |
— |
— |
|
|
|
— |
— |
Would |
|
— |
— |
Would |
— |
|
|
— |
— |
— |
|
— |
Would |
— |
Would |
|
— |
— |
Would |
— |
|
Would |
— |
— |
Would |
Source: Congressional Research Service.
Author Contact Information
1. |
See 29 U.S.C. Chapter 28. For additional information on the Family and Medical Leave Act (FMLA), see CRS Report R44274, The Family and Medical Leave Act: An Overview of Title I, by [author name scrubbed]. |
2. |
Current Department of Labor (DOL) regulations permit that son or daughter refers to children of any age for purpose of military exigency leave and military caregiver leave. See 29 C.F.R. §825.102. |
3. |
Separate hours-of-service requirements apply to airline flight crew employees. |
4. |
The proposal |
5. |
H.R. 5535 |
6. |
See 29 U.S.C. §2612(e)(1) and (2). |
7. |
A serious health condition is one that requires inpatient care or continuing treatment by a health care provider; see 29 U.S.C. §2611(11). |
8. |
In many cases, the proposals |
9. |
Bereavement, on its own, is not an FMLA-qualifying reason for leave under current law. However, an employee may qualify for FMLA leave if the death of a family member (or other event) led to a serious health condition that rendered the employee unable to do his or her job. In this case, the employer of the bereaved employee is entitled to require documentation of the serious health condition. |
10. |
Under current definitions, a son or daughter generally refers to a child under the age of 18 years. However, there is precedent for a broader regulatory interpretation of son or daughter that includes a child of any age. See footnote 2. |
11. |
S. 473 would |
12. |
As used in S. 473, the term domestic violence refers to domestic violence and dating violence, as defined at 42 U.S.C. §13925(8) and (9). |
13. |
S. 473, in many places, amends the act to replace references to "spouse" with "spouse or domestic partner;" it does not reference domestic partners in the definition of family involvement leave. |
14. |
Because the limit on family involvement leave is expressed in hours, it effectively allows part-time workers to use a larger share of their 12-workweek entitlement for family involvement activities when compared with full-time workers. |
15. |
H.R. 5165 would also |
16. |
29 U.S.C. §2611(12). |
17. |
29 U.S.C. §2611(12). |
18. |
29 U.S.C. §2611(11). |
19. |
DOL regulations note certain conditions (e.g., pregnancy at 29 C.F.R. §825.115(b)) that are included in the definition of a serious health conditions and others (e.g., cosmetic surgery at 29 C.F.R. §825.113(d)) that are not included unless additional conditions are met. |
20. |
More broadly, S. 2584 and H.R. 4616 |
21. |
The bills |
22. |
Separate hours-of-services requirements apply to airline flight crew employees. |
23. |
This amendment would have two primary effects on the pool of eligible workers. It would (1) extend eligibility to workers who worked fewer than 1,250 hours in the previous 12-months (assuming these workers also meet the 12-months employment requirement), and (2) remove a requirement that an employee has any recent work relationship with the employer. For example, under current DOL regulations, the amendment contained in H.R. 5496 means that an employee would meet the general eligibility requirement at 29 U.S.C. §2611(2)(A) as long as the employee had accumulated 12-months of experience sometime in the last seven years; see 29 C.F.R. §825.110(b). |
24. |
See 29 U.S.C. §2611(2)(D) |
25. |
Veterans would need to meet the standard eligibility requirements at 29 U.S.C. §2611(2)(A) and (B) in order to use existing FMLA-qualifying leave categories at 29 U.S.C. §2612(a)(1)(A)-(E) and (3). |
26. |
An employee who worked 833 hours in the last 8 months of the 12-month period, but—because of his or her use of FMLA leave or other reasons—fell short of the 417 hours in the 4 months that began the 12-month period needed to achieve 1,250 hours in the last 12 months would not be eligible to use FMLA leave under standard eligibility conditions. However, per the H.R. 5165 amendments, if that employee was a veteran with a service-connected disability rated at 30% or higher—and had not exhausted his or her FMLA leave entitlement—he or she would be eligible to use FMLA-protected leave for medical care or services related to the service-connected disability. |
27. |
The amendment would not change the hours-of-service requirement for educational support professionals (ESP) employed in private schools or institutions of higher education. It also would effectively create separate eligibility requirements for secretarial, clerical, or administrative support staff working in public-sector educational institutions and employees in the same occupational categories working for other public- and private-sector organizations. |