Family and Medical Leave Act (FMLA): Proposed Legislation in the 114^th Congress

Contents

• An Overview of the Family and Medical Leave Act
• Legislative History
• Proposals in the 114^th Congress to Amend FMLA
• Proposals to Create New FMLA Leave Entitlements
• Proposals to Expand Qualifying Uses for Leave
• New Qualifying Uses of Leave
• Proposals to Broaden Current FMLA-Qualifying Uses of Leave
• Proposals to Change Eligibility Requirements
• General Eligibility Requirements
• Eligibility Requirements for Specific Worker Groups

Summary

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.

The 114^th Congress is considering several proposals to amend FMLA leave in various ways:

• Additional leave entitlements. Two bills would create a new entitlement to take leave for certain family members' school or community activities (H.R. 5535, H.R. 5518) and for the employee's own routine medical needs or that of certain family members (H.R. 5518 only).
• New FMLA-qualifying uses of the existing leave entitlement. Several proposals would allow employees to use the existing entitlement for new categories of leave, including bereavement (S. 1302/H.R. 2260, S. 473), domestic violence and its effects (S. 473), family involvement (S. 473; in addition to new leave entitlements in H.R. 5535, H.R. 5518), and medical leave for veterans with service-connected disabilities rated at 30% or higher (H.R. 5165).
• Broader application of existing FMLA-qualifying uses of leave. Five bills would expand employee's options for using the current set of FMLA-qualifying uses of leave by either expanding the set of relationships for which an employee may use family leave (S. 473, H.R. 5519, H.R. 5701) or amending definitions referenced in the descriptions of the current entitlement (S. 473, H.R. 5519, and H.R. 5701 amend the definition of son or daughter to include adult children; and S. 2584/H.R. 4616 amends the definition of serious health condition to reference the recovery from organ donation surgery as a possible condition).
• Less-restrictive eligibility requirements, generally, and separate requirements for certain worker groups. For general eligibility, H.R. 5518 would reduce the minimum number of employees required within 75 miles of an employee's worksite from 50 employees to 15 employees and H.R. 5496 would amend the general hours-of-service requirement to remove the minimum of "1,250 hours of service ... during the previous 12-month period" and allow eligible workers to be "part-time or full-time" employees. H.R. 5165 provides new eligibility requirements for certain veterans that would allow them to use FMLA leave for medical treatment related to a service-connected disability rated at 30% or higher sooner than the standard 12-month employment requirement. S. 3444 would create a separate hours-of-service requirement for educational support professionals.

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Family and Medical Leave Act (FMLA): Proposed Legislation in the 114^th Congress

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.¹

The 114^th Congress is considering several bills to amend the FMLA. These proposals seek 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.

An Overview of the Family and Medical Leave Act

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:

• the birth and care of the employee's newborn child, provided that leave is taken within 12 months of the child's birth;
• the placement of an adopted or fostered child with the employee, provided that leave is taken within 12 months of the child's placement;
• to care for a spouse, child (generally a minor child), or parent with a serious health condition;
• the employee's own serious health condition that renders the employee unable to perform the essential functions of his or her job; and
• qualified military exigencies if the employee's spouse, child,² or parent is a covered military member on covered active duty.

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

• work for a covered employer;
• have 1,250 hours of service in the 12 months prior to the start of leave;³
• work at a location where the employer has 50 or more employees within 75 miles of the worksite; and
• have worked for the employer for 12 months.

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.

Legislative History

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.

Proposals in the 114^th Congress to Amend FMLA

Several bills have been introduced in the 114^th Congress to amend the FMLA. These proposals seek 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 amend the act in multiple areas; bill-by-bill summaries are in Table A-1.

Proposals to Create New FMLA Leave Entitlements

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 create an additional entitlement to leave for similar purposes, with some differences:

• Parental Involvement and Family Wellness Leave. H.R. 5518 would, among other things, entitle eligible employees to up to four hours of leave during any 30-day period, with a maximum of 24 hours during any 12-month period to (1) participate in or attend a school conference or an activity that is sponsored by a school or community organization attended by the employee's child or grandchild, or (2) to attend to the employee's own routine medical care needs (including appointments) or those of a spouse, minor child, or grandchild, or the general care needs of an "elderly relative."⁴
• Parental Involvement Leave. H.R. 5535 would entitle eligible employees to up to eight hours of leave during any 30-day period, with a maximum of 48 hours during any 12-month period, to participate in or attend a school conference or an activity that is sponsored by a school or community organization attended by the employee's child or grandchild.⁵

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

Proposals to Expand Qualifying Uses for Leave

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 considering 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.

New Qualifying Uses of Leave

Bills introduced in the 114^th Congress would allow 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

Bereavement

The following proposals would permit eligible employees to use the existing FMLA leave entitlement for the death of a close family member (or members):⁹

• S. 1302/H.R. 2260 would allow employees to use their 12-week entitlements for the death of a son or daughter.¹⁰
• S. 473 would allow employees to use their 12-week entitlements for the death of a son or daughter (of any age), parent, or sibling.¹¹ The bill would not allow employees to use FMLA for the death of a spouse.

Domestic Violence and Its Effects

S. 473 would further allow 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

Family Involvement

S. 473 would grant employees limited use of the existing 12-workweek leave entitlement for family involvement, which the bill defines 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 create an additional entitlement to leave for similar family involvement purposes.

Medical Leave for Veterans with Service-Connected Disabilities

H.R. 5165 would permit 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

Proposals to Broaden Current FMLA-Qualifying Uses of Leave

Several proposals seek 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.

Family Leave for a Broader Group of Relationships

Under current law, an employee may use FMLA leave to assist or provide care to the following sets of family members:

• Leave for the arrival of a new son or daughter by birth or placement. A son or daughter, as defined by the act, is 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."¹⁶
• Leave related to a family member's serious health condition may be taken for the employee's spouse, son or daughter, or parent.
• Military exigency leave (i.e., related to the deployment of certain military members to a foreign country) may be used in relation to a covered military member who is the employee's spouse, son or daughter, or parent.
• Military caregiver leave (i.e., care of a servicemember with a serious illness or injury) may be used for a servicemember who is the employee's spouse, son or daughter, or parent, or for whom the employee is next of kin.

The following legislative proposals would expand 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):

• S. 473 and H.R. 5519 would amend the definition of son or daughter to include the child of a domestic partner (as well as adult children) and would therefore allow the employee to use leave for the arrival by birth or placement of a domestic partner's new child, and the placement of an adult child.
• H.R. 5701 would allow an employee to use leave for the arrival by birth or placement of a grandchild, including the placement of an adult grandchild. Because the bill would amend the FMLA definition of son or daughter to include adult children, leave would also be permitted for the placement of an adult child.

For needs related to a family member's serious health condition:

• S. 473 would add a domestic partner, adult child, child of a domestic partner, parent-in-law, grandparent, and sibling.
• H.R. 5519 would add domestic partner, adult child, child of a domestic partner, parent-in-law, grandparent, grandchild, sibling, and "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."
• H.R. 5701 would add adult child, grandchild, and grandparent.

For military exigency leave:

• S. 473 would add a domestic partner, adult child, child of a domestic partner, parent-in-law, grandchild, and sibling.
• H.R. 5519 would add domestic partner, adult child, child of a domestic partner, parent-in-law, grandchild, sibling, and "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."
• H.R. 5701 would add adult child, grandchild, and grandparent.

For military caregiver leave:

• S. 473 would add a domestic partner, adult child, child of a domestic partner, son-in-law, daughter-in-law, grandparent, and sibling.
• H.R. 5519 would add domestic partner, adult child, child of a domestic partner, son-in-law, daughter-in-law, parent-in-law, grandparent, sibling, and any covered servicemember for whom the employee is in a relationship that is "the equivalent of a family relationship."
• H.R. 5701 would add adult child, grandchild, and grandparent.

Amendments to FMLA Definitions of Son or Daughter and Serious Health Condition

The 114^th Congress is considering legislation that would broaden or clarify 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 amend 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 amend 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, among other things, amend 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 provide 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

Proposals to Change Eligibility Requirements

The 114^th Congress is considering 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.

General Eligibility Requirements

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 114^th Congress is considering two proposals to amend these general eligibility requirements for employees seeking to use FMLA leave. They are

• 1. H.R. 5518, which would reduce the minimum number of employees (of the same employer) within 75 miles of an employee's worksite from 50 employees to 15 employees; and
• 2. H.R. 5496, which would amend the general hours-of-service requirement to remove reference to "1,250 hours of service ... during the previous 12-month period", and include part-time and full-time employees as "eligible employees."²³ The bill does not propose changes to hours-of-service requirements for airline flight crew.²⁴

Eligibility Requirements for Specific Worker Groups

Two bills propose new eligibility requirements for certain veterans with service-connected disabilities and for education support professionals.

Veterans with Certain Service-Connected Disabilities

As described earlier, H.R. 5165 would provide a new FMLA-qualifying use of leave for veterans with a service-connected disability rated at 30% or higher. The bill further provides separate eligibility requirements that would allow 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

For employees who are veterans with a service-connected disability rated at 30% or higher by the Secretary of Veterans Affairs:

• A veteran with a service-connected disability rated at 30%-50% would be eligible to use leave for medical care related to his or her service-connected disability if employed for 8 months (with the current employer) and for least 833 hours in the previous 8 month period.
• A veteran with a service-connected disability rated at 60% or higher would be eligible to use leave for medical care related to his or her service-connected disability if employed for 6 months (with the current employer) and for least 625 hours in the previous 6-month period.
• Employees using leave for medical needs related to a service-connected disability rated at 30% or higher would be required to provide certification from a VA medical provider or from a non-Department of Veterans Affairs (VA) medical facility "through which the Secretary of Veterans Affairs has furnished hospital care or medical services".

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:

• A veteran whose service-connected disability was rated at 30%-50% at the time of retirement would be eligible to use leave for medical care related to his or her service-connected disability if employed for 8 months (with the current employer) and for least 833 hours in the previous 8-month period.
• A veteran whose service-connected disability was rated at 60% or higher at the time of retirement would be eligible to use leave for medical care related to his or her service-connected disability if employed for 6 months (with the current employer) and for least 625 hours in the previous 6-month period.
• Employees using leave for medical needs related to a service-connected disability rated at 30% or higher at the time of retirement would be required to provide certification from the Department of Defense that describes the terms of the veteran's retirement from the Armed Forces.

The effect of the separate eligibility requirement is twofold. First, it would permit 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 facilitate some veterans' year-to-year use of this leave.²⁶

Education Support Professionals

S. 3444 would create a separate hours-of-service requirement for educational support professionals (ESP). The bill defines 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 allow 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.

Appendix. FMLA Bills in the 114^th Congress

Author Contact Information

Footnotes

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 defines grandchild, but does not define elderly nor the criteria for establishing a relationship between the employee and an elderly individual (e.g., blood relation, legal relationship including in-laws). The set of family members for whom leave may be taken to attend to family medical needs does not include a parent, unless the parent is considered to be an elderly relative, which may not be the case for some employees in their early careers.
5.	H.R. 5535 defines a grandchild as "a son or daughter of an employee's son or daughter" this definition limits the set of grandchildren for whom this leave may be used because FMLA defines a son or daughter as a child "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." See 29 U.S.C. §2611(12).
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 amend related FMLA provisions, including employee's notification responsibilities, certification requirements, the conditions under which leave may be used intermittently, and others.
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 amend the FMLA definition of son or daughter to include children of any age.
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 create separate eligibility requirements for this type of leave for certain veterans; see the "Veterans with Certain Service-Connected Disabilities" section of this report for a discussion.
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 prohibit discrimination against living organ donors in life insurance, disability insurance, and long-term care insurance coverage, access, and premium rate determinations. The bills define the term living organ donor to mean "an individual who has donated all or part of an organ and is not deceased."
21.	The bills do not indicate that the organ donation surgery is a "physical or mental condition" as referenced in the statutory definition of a serious health condition.
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.