The Family and Medical Leave Act: Current
Legislative Activity
Gerald Mayer
Analyst in Labor Policy
February 14, 2011
Congressional Research Service
7-5700
www.crs.gov
RL31760
CRS Report for Congress
P
repared for Members and Committees of Congress
The Family and Medical Leave Act: Current Legislative Activity
Summary
Time off to care for one’s own health problems or those of family members is not a job-protected
entitlement. Thus, employees sometimes have jeopardized their continued employment to be
away from the workplace to address health-related matters. With passage of the Family and
Medical Leave Act of 1993 (FMLA, P.L. 103-3), Congress mandated in Title I that private
employers with at least 50 employees and public employers of any size provide
job-protected unpaid leave for 12 workweeks in a 12-month period to employees who meet the length-of-
service and hours-of-work eligibility requirement in order to care for their own, a child’s,
spouse’s, or parent’s serious health condition; to care for a newborn, newly adopted, or newly
placed foster child; and upon the birth or placement of an adopted or foster child. Employees in
the federal government’s executive branch generally are covered under Title II of the FMLA,
which is administered by the Office of Personnel Management (OPM).
The Department of Labor, which administers Title I of the act, replaced its 1995 regulation
effective January 16, 2009. The final rule contains many changes and addresses regulatory issues
raised by enactment of amendments to the FMLA in the National Defense Authorization Act
(NDAA) of FY2008. The NDAA provided (1) 12 workweeks of FMLA leave to Title I FMLA-
eligible employees dealing with issues arising from family members in the Guard or Reserves
being called to active duty as a result of a qualifying exigency and (2) 26 workweeks of FMLA
leave to Title I and Title II FMLA-eligible employees and next of kin caring for seriously injured
or ill service members in the Armed Forces, Guard, or Reserves. Relatedly, in August 2009, OPM
proposed regulations about military family caregiver leave for eligible civil service employees.
In October 2009, the President signed into law the NDAA for FY2010, which contained further
changes to the FMLA. P.L. 111-84 extends qualifying exigency leave to FMLA-eligible family
members of regular and reserve members of the Armed Forces deployed to a foreign country and
extends military family caregiver leave to eligible family members and next of kin of recent
veterans of the Armed Forces, Guard, or Reserves. These provisions apply to employers covered
by Title I and Title II of the FMLA.
The 111th Congress approved the Airline Flight Crew Technical Corrections Act, which the
President signed in December 2009 (P.L. 111-119). The law recognizes that because the work
hours of flight attendants and pilots were being calculated for the purpose of FMLA eligibility
based on in-flight time only, full-time flight attendants and pilots were unable to take leave under
the act because they usually work less than 1,250 hours.
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The Family and Medical Leave Act: Current Legislative Activity
Contents
Introduction ................................................................................................................................ 1
The Act’s Major Provisions and Regulations ............................................................................... 1
Coverage and Reasons for Leave........................................................................................... 2
Breaks in Service ............................................................................................................ 3
Substitution of Paid Leave for Unpaid FMLA Leave ....................................................... 4
Length and Form of Leave .................................................................................................... 4
Notifications ......................................................................................................................... 5
Medical Certifications of Serious Health Conditions ............................................................. 6
Enforcement ......................................................................................................................... 7
FMLA Policy Issues.................................................................................................................... 7
Expanding the FMLA ........................................................................................................... 7
Coverage and Eligibility.................................................................................................. 7
Reasons for Leave........................................................................................................... 8
Care Recipient Groups .................................................................................................... 8
Paid Leave ...................................................................................................................... 9
Clarifying or Tightening the FMLA....................................................................................... 9
Serious Health Condition ................................................................................................ 9
Intermittent Leave......................................................................................................... 11
Employer Response Time to Notification of Need for Leave ......................................... 12
Legislative Activity................................................................................................................... 12
In the 112th Congress........................................................................................................... 12
In the 111th Congress ........................................................................................................... 13
In the 110th Congress........................................................................................................... 15
Contacts
Author Contact Information ...................................................................................................... 15
Acknowledgments .................................................................................................................... 15
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The Family and Medical Leave Act: Current Legislative Activity
Introduction
Congress passed the Family and Medical Leave Act (FMLA, P.L. 103-3) as a means of helping
individuals more easily balance their family and work obligations. Over the past few decades,
married mothers with young children increasingly have strived to fulfill both workplace and
child-rearing obligations. With the enactment of welfare reform legislation, greater numbers of
single parents also have had to meet the challenge of caring for their children while holding down
jobs. Further, the aging of the population and lengthening life spans have made it more likely that
workers will assume caregiving duties for elderly relatives, friends, and neighbors.
Time off to care for one’s own health problems or those of family members is
not a job-protected
entitlement. That is to say, employees sometimes have jeopardized their continued employment to
take time away from work to deal with health-related matters. As of March 2010, 62% of
employees in the private sector had access to paid sick leave. Significantly fewer (10%) of these
employees had access to paid family leave.1
With passage of the FMLA in 1993, Congress mandated that some employers provide eligible
employees
job-protected unpaid leave to attend to their own serious medical problems as well as
those of certain family members; to care for a newborn, newly adopted, or newly placed foster
child; and upon the birth or placement of an adopted or foster child. More than a decade later as
part of the FY2008 and FY2010 Department of Defense (DOD) authorization bills, Congress
further required FMLA-covered employers to give eligible employees leave under the act for
reasons connected with certain family members serving in recent military actions.
The FMLA prescribes a minimum benefit. Employees in jurisdictions that have enacted more
comprehensive family and medical leave statutes (e.g., provide leave for additional reasons) and
those who work for employers that offer more expansive family and medical leave (e.g., provide
a longer period of absence) are entitled to the more generous benefits.
This report begins with a brief overview of the major features of the FMLA and its regulations.
The various proposals made to amend the act since its inception are then categorized and
discussed. It closes with a review of legislative activity.
The Act’s Major Provisions and Regulations
This section of the report describes the FMLA and its regulations at 29 C.F.R. Part 825.2 Select
features of the revised final rule the Department of Labor (DOL) issued on November 17, 2008,
which became effective on January 16, 2009,3 are specifically noted (e.g., those related to court
decisions rendered after FMLA regulations were first issued in January 1995, amendments to the
FMLA contained in the NDAA of FY2008).
1 Paid family leave is granted to an employee to care for a newborn or adopted child or a sick child or adult relative.
U.S. Department of Labor, Bureau of Labor Statistics,
National Compensation Survey: Employee Benefits in the United
States, March 2010, Bulletin 2752, Private Industry Tables, September 2010, Table 32, available at
http://www.bls.gov/ncs/ebs/benefits/2010/ebbl0046.pdf.
2 The FMLA is at Title 29 U.S.C. Chapter 28.
3 Department of Labor, “The Family and Medical Leave Act; Final Rule,” 73
Federal Register 67934, November 17,
2008.
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The Family and Medical Leave Act: Current Legislative Activity
Coverage and Reasons for Leave
Title I of the act requires employers in the private sector (1) who have had 50 or more employees
on their payrolls for at least 20 workweeks in the current or preceding calendar year, and (2) who
are engaged directly or indirectly in commerce, to extend job-protected,4 unpaid leave to
employees who have worked for them
• at least 12 (not necessarily consecutive) months,
• a minimum of 1,250 hours (excluding paid or unpaid leave time) in the 12
months preceding the start of their FMLA leave,
and
• at a facility where 50 or more persons are employed by the employer within 75
miles
for the following reasons:
• the birth of a child of the employee and to care for the newborn child;
• the placement with the employee of a child for adoption or foster care and to care
for the newly placed child;
• to care for an immediate family member—spouse, child under age 18 (or of any
age if incapable of self-care due to an activity-limiting disability), or parent—
with a “serious health condition”;
• to care for the employee’s own serious health condition (including maternity-
related disability) that makes them unable to perform the functions of their
position;5
• a qualifying exigency related to an employee’s family member in the National
Guard or Reserves or retired from the regular Armed Forces or Reserves being
called (or notified of an impending call or order) to active duty in support of a
contingency operation;6 or
• to care for current members of the regular Armed Forces, National Guard, or
Reserves and members of the regular Armed Forces, National Guard, or Reserves
on temporary disability retired lists who incurred a serious injury or illness if the
employee is the spouse, child,7 parent, or next of kin8 of the service member.9
4 Generally, employees returning from FMLA leave must be restored to their original jobs or to jobs equivalent in pay,
benefits, and other terms/conditions of employment. An exception exists for “key employees.”
5 The definition of a serious health condition is discussed later in “Clarifying or Tightening the FMLA.”
6 Qualifying exigencies are defined in the final rule to include short-notice deployment, military events and related
activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-
deployment activities.
7 Because the FMLA’s definition of a child would have severely limited the availability of leave, DOL developed a
separate definition for this type of leave: a child of a covered service member can be of any age.
8 Next of kin is the service member’s nearest blood relative other than the member’s spouse, parent, or child in the
following order: blood relatives who have been granted legal custody, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the service member designated in writing another blood relative as his or her nearest
blood relative.
9 DOL did not explicitly require temporal proximity between the covered service member’s injury or illness and
treatment, recuperation, or therapy. It reasoned that limiting the provision of care to current service members and those
(continued...)
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The Family and Medical Leave Act: Current Legislative Activity
Title I of the FMLA also requires employers in the public sector (e.g., state and local
governments, including local education agencies) to provide leave to eligible employees
regardless of the size of their organizations. To be eligible for leave, public employees must fulfill
the act’s requirements concerning length of service; hours of work;
and proximity to the
employer’s other facilities, at which at least 50 employees must work.
Federal employees in the government’s executive branch generally are covered under Title II of
the act. The Office of Personnel Management (OPM), rather than DOL, administers Title II. OPM
issues separate regulations at 5 CFR Part 630, Subpart L. While the National Defense
Authorization Act (NDAA) of FY2008 (P.L. 110-181) entitled employees covered under Title I of
the FMLA to the two above-described military-related reasons for leave, the NDAA entitled civil
service employees only to military family caregiver leave. On August 26, 2009, OPM proposed
regulations about military family caregiver leave for eligible civil service employees and
requested comments on whether it should pursue legislation to extend P.L. 110-181’s exigency
leave to employees covered under Title II of the FMLA.10 The comment period ended on October
26, 2009.
FMLA coverage of legislative branch employees, excluding those at the Government
Accountability Office (GAO) and the Library of Congress (LOC), is provided by the
Congressional Accountability Act of 1995. The Office of Compliance administers the act for
these individuals. (Although GAO and LOC employees are covered under Title I of the FMLA,
the Comptroller General and the Librarian of Congress administer the act for their respective
organization’s employees.)
Breaks in Service
The First Circuit Court of Appeals held in
Rucker v. Lee Holding Co. that the complete separation
of an employee from his or her employer does not prevent the employee from counting earlier
periods (here five years) toward the FMLA’s 12-month length-of-service requirement. In its
December 2006 opinion, the court urged DOL to decide whether it is permissible under the act to
count a continuous break of longer than five years. DOL determined, but for two exceptions, that
employment periods prior to a break in service of seven or more years need not be counted
toward the length-of-service requirement.
One exception involves an employee fulfilling his or her National Guard or Reserve service
obligations.11 Because the Uniformed Services Employment and Reemployment Rights Act
(USERRA) of 1994 entitles returning service members to the rights and benefits they would have
had if they had been continuously employed, the number of hours and months they would have
worked for the employer if they had not been absent for National Guard or Reserve service must
be counted toward their eligibility for FMLA leave.12 In other words, the time members of the
(...continued)
on the temporary retired disability list (where they can remain for no more than five years) had that effect.
10 Office of Personnel Management, “Absence and Leave; Family and Medical Leave,” 164
Federal Register 43064,
August 26, 2009.
11 The second exception is existence of a written agreement (including a collective bargaining agreement) specifying
the employer’s intention to rehire the employee after a break in service taken, for example, to further the employee’s
education or for childrearing purposes.
12 U.S. Department of Labor, “Uniformed Services Employment and Reemployment Rights Act of 1994; Final Rules,”
(continued...)
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National Guard or Reserves spend absent from their civilian jobs due to military service is not
deemed a break in employment.
Substitution of Paid Leave for Unpaid FMLA Leave
Employees may elect, and employers may require, substitution of accrued paid leave (vacation,
personal, sick) for the unpaid leave mandated by the statute. If substitution occurs, the paid leave
accrued by the employee runs concurrently with the unpaid FMLA leave.
When accrued paid leave is substituted for unpaid FMLA leave, the employer must inform the
employee that he or she must satisfy any customary notice and procedural requirements of the
employer’s paid leave policy. For example, in the case of sick leave, the employee must call a
specific phone number or contact a specific person; in the case of vacation leave, the employee
must take the time off in full-day increments if that is the employer’s usual policy.
Length and Form of Leave
The maximum leave that can be taken under the statute is 12 workweeks in any 12-month period
for every reason for leave but one. The exception is to care for an eligible service member with a
serious injury or illness. Leave for this purpose can total up to 26 workweeks in a single 12-
month period.13 The 26 workweeks of unpaid leave to care for a service member is calculated on
a per-covered-member, per-injury basis. Thus, an employee may take more than one military
caregiver leave period if he or she is caring for different service members, or caring for the same
service member who subsequently incurs another injury.
When there is a medical need to do so, employees are entitled to take their leave time
intermittently or work a reduced schedule (e.g., part-time) to care for their own or an eligible
relative’s serious health condition, or to care for a covered service member with a serious injury
or illness. The employer’s agreement is required when the employee wants to take leave
intermittently or on a reduced schedule after the birth, placement for adoption, or foster care of a
healthy child.
The employer must provide FMLA leave using increments no longer than the shortest period used
to account for other forms of leave provided the increment is one hour or less. In those instances
when it is impossible for an employee on intermittent leave or working a reduced schedule to start
or end work part-way through a shift (e.g., a flight attendant or pilot is scheduled to work on an
airplane), the entire period the employee is forced to be absent is counted against the employee’s
leave entitlement. If an employee on intermittent leave or working a reduced schedule would
customarily be required to work overtime but cannot because of an FMLA-qualifying reason, the
overtime hours not worked are counted against the employee’s leave entitlement.14
(...continued)
70
Federal Register 75308, December 19, 2005.
13 A single 12-month period begins on the first day the employee takes leave to care for a service member.
14 The final rule incorporates discussion from the preamble to the 1995 regulations about counting against the FMLA
entitlement overtime hours employees would have been required to work but for use of leave under the act.
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Employers may require employees on intermittent or reduced-schedule leave to transfer
temporarily to another position for which the employees are qualified that better accommodates
their new hours. The alternative position must afford the employee equivalent wages and benefits.
Employers transferring employees to discourage them from taking leave or otherwise create a
hardship for them will be considered to have committed a prohibited action. When an employee
no longer needs to continue on FMLA leave, they generally must be placed in the same job or one
equivalent to the position which he or she left.
Notifications
When the need for leave is foreseeable, employees must provide employers with at least 30 days’
verbal notice or, if that is not possible, such notice as is practicable. If the need for leave is
unforeseeable, employees must provide such notice as is practicable. In neither instance does the
2009 regulation retain the 1995 regulation’s reference to “practicable,” ordinarily meaning within
one or two business days. Instead, it is generally expected to be practicable for employees to give
notice within the customary time prescribed by the employer’s leave policy. Employees also are
generally expected to follow the employer’s established procedures for requesting leave (e.g.,
contacting a specific individual within the firm). As noted in opinion letter FMLA-2009-1-A,
[t]o the degree that Wage and Hour Opinion Letter FMLA-101 has been interpreted to create
a flat “two-day rule,” the Department is hereby rescinding it. ...It is our opinion that unless
unusual circumstances prevented the employee from providing notice consistent with the
employer’s policy, the employer may deny FMLA leave for the absence.
Whether the request for leave is foreseeable or unforeseeable, employees should provide
employers with sufficient information to allow them to determine whether the leave is for an
FMLA-qualifying reason. As in the past, employees do not have to refer to the FMLA when
notifying employers. In the case of unforeseeable leave, calling in “sick” without providing more
information will not trigger an employer’s responsibilities under the statute.
Employers must, within five business days of receiving an employee’s notice of need for leave,15
inform them whether they are eligible for leave under the act. Similarly, employers now have five
(rather than two) business days from the time they receive adequate information from the
employee to provide him or her with written notice stating that time-off will be counted against
the FMLA entitlement; to detail whether the employee must furnish medical certification; and,
among other things, to explain the employee’s right to substitute accrued paid leave and whether
the employer is requiring such substitution, the employee’s status as a “key employee” and how
they might be denied job restoration upon returning from leave, and the employee’s obligation to
continue making their share of premium payments for maintenance of employer-provided group
health insurance. (Health coverage is the only benefit that employers are required to continue
providing to FMLA leave-takers.)
If employers fail to provide notice, it may constitute interference with the FMLA rights of
employees. Employers may be liable for such things as compensation and benefits lost due to the
violation and for equitable relief tailored to the harm suffered (e.g., employment reinstatement or
promotion of employees). As a result of the Supreme Court’s decision in
Ragsdale v. Wolverine
15 Until the final rule went into effect in January 2009, employers had two business days within which to provide this
notice to employees.
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Worldwide Inc., which was issued in March 2002, DOL deleted provisions in the 1995 rule that
allowed it to deem employees who did not meet the length-of-service and hours-of-work
requirements eligible for FMLA leave when an employer failed to provide the required notice or
correct information.16
Medical Certifications of Serious Health Conditions
In light of the Fifth Circuit Court of Appeals’ decision in
Urban v. Dolgencorp of Texas issued in
December 2004, DOL solicited comments in its proposed rule17 on whether to require employers
to notify employees if medical certifications are not returned by health care providers within 15
days and to give employees seven additional calendar days to provide the certification. The final
rule states that if employers require employees to obtain medical certifications of their own or a
family member’s serious health conditions, employees must do so within 15 calendar days after
the request. If employers consider the certification to be incomplete or insufficient, based on the
definitions of these terms in the rule, the firm must give employees seven calendar days to cure
any deficiency in resubmitted certifications.
After employers have given employees an opportunity to cure any deficiencies, employers may
contact health care providers of the employees or their family members for purposes of
clarification or authentication. This contact must be made through another health care provider, a
human resources professional, a leave administrator, or a management official—but not the
employee’s direct supervisor.
Employers may require employees to obtain and pay for recertifications no more often than every
30 days, or after the minimum duration of the condition indicated on the original certification has
expired if it is longer. If health care providers indicate on the original certification that employees
have conditions expected to last longer than six months (e.g., a lifetime), employers are permitted
to request recertifications every six months. Employers may require employees to obtain
recertifications in less than 30 days in the following circumstances: the employee requests an
extension of leave, circumstances described in the original certification change, or the employer
receives information that casts doubt on the employee’s reason for absence or the validity of the
certification. The following language in the 2009 final regulation incorporates a 2004 opinion
letter:
As part of the information allowed to be obtained on recertification for leave taken because
of a serious health condition, the employer may provide the health care provider with a
record of the employee’s absence pattern and ask the health care provider if the serious
health condition and need for leave is consistent with such a pattern.
16 The divided court ruled that the appropriate remedy for an employer’s failure to designate leave as falling under the
FMLA is not the automatic provision of an additional 12 weeks of absence under the act. The Supreme Court held that
employees must prove they were harmed by the employer’s failure to notify them that their absence would be
subtracted from their FMLA entitlement. The court noted that the duration of FMLA leave was a carefully balanced
compromise which the regulation would have extended for some employees, and that a contrary ruling might have
prompted employers with more generous leave policies to curtail them, which would have been antithetical to the stated
intent of lawmakers.
17 Department of Labor, “The Family and Medical Leave Act; Notice of Proposed Rule Making,” 73
Federal Register 7876, February 11, 2008.
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Enforcement
If private sector, state and local government, and some federal employees believe their employers
have violated the law (e.g., denying them leave under the statute or retaliating against them for
having taken FMLA leave), they may file a complaint with DOL’s Wage and Hour Division. If,
after investigating a complaint, the Wage and Hour Division cannot resolve the matter to its
satisfaction, the Department’s Office of the Solicitor may seek to compel compliance through the
courts.
Private sector, state and local government, and some federal employees may bring a private civil
action without filing a complaint.18 (The right of state employees to sue their employers for
violations of the FMLA was affirmed by the Supreme Court in May 2003, when it decided that
state governments are subject to the act due to their history of sex discrimination.)19 A suit must
be filed within two years after the last action that the employee contends was a violation of the
FMLA, or three years if the violation was willful.
FMLA Policy Issues
Since its inception, proponents and opponents of the FMLA have suggested ways to change the
statute to make it more employee-friendly or more employer-friendly. Some of the proposals are
examined below.
Expanding the FMLA
Coverage and Eligibility
DOL last surveyed employees and employers about their experience with the FMLA in the 1999-
2000 period. According to the surveys, almost 90 million out of 144 million public and private
sector employees worked at covered establishments and met the act’s eligibility criteria in 1999-
2000.20 That left 33.6 million who did not work at covered establishments and 21.5 million
workers who, although working for covered employers, did not fulfill P.L. 103-3’s hours-of-work
and length-of-service requirements. In other words, almost two out of every five employees were
not entitled to leave under the FMLA during the survey period.
Proponents of the FMLA’s approach to work-family balance would like to extend it to additional
workers. To make the leave entitlement an option for more employees, it has been suggested that
the threshold for coverage of private sector employers be lowered from at least 50, to at least 25,
employees. Other suggested ways to afford more employees the opportunity to take FMLA leave
include (1) eliminating the requirement that employees must have worked 1,250 hours in the
18 Federal executive branch employees are not entitled to sue and can only obtain appellate judicial review of Merit
Systems Protection Board decisions in the federal circuit.
19 For more information, see CRS Report RL31604,
Suits Against State Employers Under the Family and Medical
Leave Act: Analysis of Nevada Department of Human Resources v. Hibbs, by Jody Feder.
20 U.S. Department of Labor,
Balancing the Needs of Families and Employers: Family and Medical Leave Surveys,
2000 Update. A summary of the results appears in CRS Report RL30893,
Explanation of and Experience Under the
Family and Medical Leave Act, by Linda Levine.
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preceding 12 months, (2) prorating the 12-week leave entitlement based on the number of hours
worked by part-time employees, and (3) eliminating or reducing the requirement that employees
must have been on an employer’s payroll for 12 months.
Reasons for Leave
Broadening the situations for which FMLA leave can be taken could well increase what some
view as the law’s low utilization rate. According to the DOL survey of employees, those who took
FMLA leave in 1999-2000 accounted for 11.7% of all leave-takers and 1.9% of all employees.21
The rate of leave-taking under P.L. 103-3, according to DOL’s survey of employers, was 6.5
FMLA leave-takers per 100 covered employees.
A health-related problem was the explanation most often provided by employees in one study
who took time off to care for family members. Nonetheless, the reason accounted for a minority
(29%) of employees’ absences associated with family caregiving.22 Another 26% of caregiving
absences from work was related to the provision of transportation or other instrumental support
for family members; 22%, to school/child care problems; 15%, to the provision of emotional or
other support for family members; 5%, to the provision of elder care; and 3%, to coping with a
family member’s death. Thus, some members of the public policy community have suggested that
employees be able to use FMLA leave for such reasons as attending parent-teacher conferences,
participating in children’s educational and extracurricular activities, taking children or elderly
relatives to routine medical or dental appointments, and participating in activities that result from
domestic violence.
Care Recipient Groups
According to the same study by Heymann, 15% of employee absences resulted from caring for
parents; 12% for spouses or partners; 7% for grandchildren; and 24% for other family members.
The remaining 42% of employee absences were linked to caring for not only a child’s health, but
also for a child’s educational, childcare, and other needs.23 Reflecting the broad range of
individuals to whom employees provide assistance, it has been proposed that the care recipient
groups under the statute be extended to include elderly relatives besides the employee’s own
parents (e.g., a parent-in-law or grandparent), domestic partners, and non-disabled children age
18 or older.
Employers could well oppose loosening firm coverage or employee eligibility requirements,
broadening the qualifying reasons, or increasing the care recipient groups. If these expansions
were to increase utilization of the statute, it would impose a greater administrative and
operational burden on more employers (e.g., determining whether leave qualifies under the
FMLA and arranging for leave-takers’ duties to be accomplished while they are absent).
21 Leave-takers were defined as individuals, regardless of their status under the FMLA, who took leave during the
survey period for FMLA-qualifying reasons.
22 Jody S. Heymann,
The Widening Gap: Why American Working Families are in Jeopardy and What Can be Done
About It (New York: Basic Books, 2000). (Hereafter cited as Heymann,
The Widening Gap.)
23 Ibid. Note: “Children” included those of preschool and school age as well as adult children.
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Paid Leave
About two-thirds of employees who took leave for FMLA reasons received some compensation
during their absence, principally through an employer’s sick leave plan, according to the DOL
employee survey. Most paid leave-takers (72%) received their full paychecks for the whole
period, but 58% of leave-takers who received no or partial pay reported difficulty making ends
meet. “Lack of money” was the reason offered most often by those who needed but did not take
leave in 1999-2000 for FMLA reasons.
Three approaches have been advanced to provide employees with paid time off for all or some
FMLA-qualifying reasons. The approaches are briefly described below but not discussed further
in this report because they do not involve the FMLA.
• One approach would require employers to provide leave with pay to employees
caring for their own health and the health of other eligible individuals. Two
different methods have been proposed: one mandating employers to offer their
employees a paid sick leave benefit (broadly defined); the other imposing a
payroll tax to establish a trust fund from which the government would
compensate eligible employees while on leave for FMLA-qualifying reasons.
(See H.R. 2460/S. 1152, 111th Congress), The Healthy Families Act; and H.R.
1723, The Family Leave Insurance Act.)
• Another alternative would initiate a grant program to assist states interested in
supplementing the income of individuals who take leave for family-related
reasons. (See H.R. 2339, 111th Congress), The Family Income to Respond to
Significant Transitions Act, and the Labor Department’s FY2011 budget request
for $50 million for a paid leave fund.)
• A third approach would amend the Fair Labor Standards Act of 1938, which
requires private sector employers to pay an overtime premium to hourly
employees who work more than 40 hours in a week. Instead of giving employees
their overtime in cash, private employers would be allowed to offer them
compensatory time off that employees could use for whatever reasons they saw
fit. (See H.R. 933, 111th Congress), The Family-Friendly Workplace Act.)
Clarifying or Tightening the FMLA
Serious Health Condition
A “serious health condition” is defined as an illness, impairment, injury or mental/physical
condition that involves
• inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential mental
facility; or
• continuing treatment by (or under the supervision of) a health care provider,
which includes (1) a period of incapacity of more than three consecutive, full
calendar days and any subsequent treatment or period of incapacity due to the
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same condition;24 (2) any period of incapacity due to pregnancy or for prenatal
care; (3) any period of incapacity or treatment due to a chronic serious health
condition that requires visits at least twice a year for treatment by (or under the
supervision of) a health care provider, continues over an extended period, and
may cause episodic (rather than continuing) periods of incapacity (e.g., asthma,
diabetes); (4) a period of incapacity that is permanent or long-term due to a
condition for which treatment may not be effective (e.g., Alzheimer’s disease,
terminal stages of a disease); and (5) any period of absence to receive multiple
treatments (including any period of recovery there from) by a health care
provider for a condition that likely would result in incapacity of more than three
consecutive days absent medical intervention (e.g., chemotherapy, physical
therapy for severe arthritis, dialysis for kidney disease).
Some have argued that DOL expanded the meaning of the term beyond the kinds of health
problems envisioned by lawmakers.25 At a February 15, 2000 oversight hearing of the House
Government Reform Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs, it was asserted that a DOL opinion letter effectively said that the underlying
medical condition (e.g., a cold or an earache) did not matter if other requirements were met. It has
been claimed that, as a result, employees are able to use their FMLA entitlement for minor health
problems and to thereby abuse their employer’s sick leave policy.26
In recognition of the charge that employees may take FMLA leave for something other than a
serious condition, DOL’s employee survey asked individuals who gave health-related reasons for
taking leave under the act (excluding disability due to pregnancy) whether their condition
required care from a doctor or an overnight stay in a hospital. Virtually all (99%) those who took
leave in 1999-2000 to deal with their own or a family member’s illness responded that a doctor’s
care was required. About two-thirds reported that they or a family member had to be hospitalized
overnight.
To remedy the perceived problem—which allegedly permits abuse of the act, increases
employers’ administrative burden, and sparks litigation—it has been proposed that the regulation
be clarified. One idea that has been advanced would explicitly state in the statute that an illness,
injury, impairment or condition for which treatment and recovery are brief (e.g., fewer than seven
or 14 days) does not constitute a serious health condition.
It further has been suggested that the law be revised to list specific examples of serious health
conditions. In responding to questions posed during a hearing held by the Subcommittee on
Children and Families of the Senate Committee on Health, Education, Labor, and Pensions on
July 14, 1999, the Deputy Administrator of the DOL’s Wage and Hour Division expressed
concern that such a list might imply that illnesses that “everyone would agree are normally not
serious conditions” could never warrant FMLA leave. He pointed out that the flu—an often-used
24 The meaning of continuing treatment is clarified in the final rule issued in November 2008. It must involve treatment
by a health care provider at least twice within 30 days of the first day of incapacity (unless extenuating circumstances
exist) or at least once if it results in a continuing regimen of care, provided that the first (or only) visit is an in-person
visit which occurs within seven days of the first day of incapacity.
25 Deborah Billings, “Business Groups Tell OMB Manufacturers Would Benefit From Overhaul of FMLA Rules,”
Daily Labor Report, August 5, 2004. (Hereafter cited as Billings,
Business Groups Tell OMB.)
26 Cindy Skrzycki, “The Regulators: Businesses Sore About Medical Leave,”
Washington Post, February 4, 2003.
(Hereafter cited as Skrzycki,
The Regulators.)
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example of a non serious condition for which FMLA leave currently can be taken if it lasts more
than three days and requires the continuing treatment of a health care provider—kills tens of
thousands of people each year. He also mentioned that examples of serious health conditions are
included in the regulations.
Intermittent Leave
As previously noted, the DOL regulation states that employers must account for intermittent leave
in the smallest increment that their payroll systems use to account for other absences, as long as it
is 1 hour or less. It has been argued that keeping track of such short segments of time is
burdensome, particularly if the firm’s payroll and attendance systems are not integrated or if the
system for recording leave is not automated. However, a minority of employees take leave on an
intermittent basis under the statute: according to the DOL’s employee survey, about one-fifth of
FMLA leaves were taken on an intermittent basis in 1999-2000. And, HR professionals reported a
statistically significant decline between the SHRM’s 2000 and 2003 FMLA surveys in the degree
of difficulty scheduling intermittent leave in minutes.27
In order to lessen the record-keeping burden, a suggestion has been made to extend the minimum
increment of leave under the act.28 Others have countered that lengthening the increment would
substantially penalize leave-takers by withholding, for example, half a day’s pay when the
employee only needed to be absent for 30 minutes. The size of the penalty could potentially
discourage some employees from taking leave intermittently.
One argument that has been put forth against intermittent leave—particularly when employees
provide little notice—is that it deprives employers of the ability to mitigate work disruptions, and
consequently, can have significant negative effects on the duties and schedules of a leave-taker’s
co-workers who typically must pick up the slack. This, in turn, could adversely affect labor
productivity and the morale of a leave-taker’s co-workers. HR professionals who participated in a
SHRM survey noted that fewer than half of FMLA leave-takers scheduled it in advance (48%),29
but DOL’s employee survey found that co-workers of leave-takers generally did not think the act
adversely affected them. If the use of intermittent leave remains unchanged despite extension of
the minimum increment and instead, leave-takers were absent for four hours rather than 30
minutes, for example, then the act’s reported burden on co-workers might worsen.
Unscheduled intermittent leave continues to be one of its most controversial features of the law,
according to comments made by business and employee representatives during a June 2005
roundtable discussion convened by the Senate Health, Education, Labor, and Pensions
Committee. A hospital’s HR director stated that “on any given day, 25 people [medical assistants
who had obtained certifications from doctors that their chronic conditions required use of
intermittent leave] could call in, and there’s nothing you can do about it,” and a manufacturer’s
representative asserted that employees utilized the FMLA to circumvent disciplinary procedures
in their collective bargaining agreement.30 In contrast, an employee described how her ability to
take intermittent leave for the years during which her child was being treated for cancer also
27 Communication between CRS and SHRM about its 2000 and 2003 surveys.
28 Billings,
Business Groups Tell OMB.
29 Society for Human Resource Management,
SHRM 2003 FMLA Survey. 30 Fawn H. Johnson, “‘Roundtable’ Panel Debates Usefulness of ‘Intermittent Leave’ in Family Leave Law,”
Daily
Labor Report, June 24, 2005, p. A-10.
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enabled her to continue working and receiving paychecks. Jody Heymann, Director of Harvard
University’s Center for Society and Health Policy, noted that with the prevalence of chronic
health conditions increasing and hospitalizations decreasing, access to intermittent leave “allows
the worker to miss as little work as possible.”31
On the basis of surveys conducted by SHRM in 2006 and 2007, it appears that HR professionals
continue to have difficulty administering the act and report negative consequences more often
when leave is taken intermittently for chronic health conditions as opposed to catastrophic health
conditions or when leave is taken to care for a newborn or newly placed adopted or foster child.
The short notice (less than one week) employees often give for taking time off for episodic
conditions—which reportedly makes it difficult for companies to deal with absences—may partly
be the cause of these findings.32 The employer community also raised these issues in their
responses to DOL’s request for information, issued in December 2006, on the need for possible
changes to the act.33
Employer Response Time to Notification of Need for Leave
Under the 1995 regulations, employers had to respond in writing within two business days to an
employee’s notification of the need for leave. Some asserted that this was an extremely short
period in which to determine whether the leave falls under the FMLA and to provide further
guidance to employees, particularly as employees do not have to mention the FMLA in their
notification and especially if employees informally tell their immediate supervisors rather than
directly informing the employers’ HR personnel who process the paperwork.
It was suggested that employer’s response time be lengthened. As previously discussed, the
regulations that became effective in January 2009 extend the employer response period to five
business days. DOL also has been urged to require employees to request FMLA leave
specifically.34
Legislative Activity
In the 112th Congress
Legislation introduced in the 112th Congress would provide federal and other employees with
paid leave for the birth or adoption of a child and allow these employees to substitute paid leave
for unpaid leave.
H.R. 616, the Federal Employees Paid Parental Leave Act of 2011, would allow federal
employees four weeks of paid parental leave for the birth of a child or the placement of a child for
31 Ibid., p. A-11.
32 Society for Human Resource Management,
FMLA: An Overview of the 2007 FMLA Survey, May 2007. See also
Family Medical Leave, SHRM Weekly Online Survey, January 9, 2007, and
Leave Administration under the FMLA,
SHRM Weekly Online Surveys, November 7 and 15, 2006.
33 “Request for Information on the Family and Medical Leave Act of 1993,” 71
Federal Register 69504, December 1,
2006.
34 Skrzycki,
The Regulators.
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adoption or foster care. It would also allow federal employees to substitute accumulated paid
annual or sick leave for unpaid leave. The legislation would amend the FMLA and the
Congressional Accountability Act to allow employees of the Government Accountability Office
(GAO) and the Library of Congress and congressional employees to receive the same amount of
paid parental leave as federal employees. It would also allow these employees to substitute paid
annual or sick leave for unpaid leave.
In the 111th Congress
The NDAA for FY2010 (P.L. 111-84), which the President signed into law on October 28, 2009,
makes further amendments to the FMLA. Included in the NDAA for FY2010 (H.R. 2647) that the
House passed in June 2009 were provisions that extended qualifying exigency leave to eligible
family members of regular and reserve members of the Armed Forces deployed to a foreign
country and extended military family caregiver leave to eligible family members and next of kin
of recent veterans of the Armed Forces, Guard, or Reserves; the provisions applied only to
employees covered under Title I of the FMLA. (The NDAA passed by the Senate on July 23 did
not contain FMLA amendments.) Introduced on July 30, the Supporting Military Families Act
(H.R. 3403/S. 1543) would have applied the FMLA amendments in H.R. 2647 not only to
employees of private sector firms with 50 or more employees and public agencies (Title I), but
also to civil service employees (Title II).35 P.L. 111-84 does just that, namely, it enables eligible
employees covered under Title I and Title II of the FMLA to take
• qualifying exigency leave in connection with regular and reserve members of the
Armed Forces deployed to a foreign country; and
• military family caregiver leave in connection with veterans who were members
of the Armed Forces (including those in the Guard or Reserves) at any time
during the period of five years preceding the date on which the veteran undergoes
medical treatment, recuperation, or therapy.
The Airline Flight Crew Technical Corrections Act was the only other legislation to amend the
FMLA that advanced beyond committee referral in the 110th Congress. Because a flight
crewmember’s work hours are based on in-flight time despite their spending more time at work
(e.g., between flights), a full-time flight attendant or pilot usually works less than the 1,250 hours
required for FMLA eligibility. The House again approved the reintroduced bill (H.R. 912) early in
the 111th Congress. In July 2009, a very similar bill of the same title, S. 1422, was introduced in
the Senate. The Senate passed S. 1422 in November, and the House passed it by voice vote on
December 2, 2009. Later that month, the Airline Flight Crew Technical Corrections Act was
signed into law as P.L. 111-119. The amendment to the FMLA states that airline flight
crewmembers who have worked or been paid for not less than 60% of their total monthly
guarantee for the prior 12 months and who have worked or been paid for not less than 504 hours
in the prior 12 months (excluding personal commute time and vacation, and medical or sick
leave) will be considered to have fulfilled the FMLA’s hours-of-work requirement. On July 29,
2010, H.R. 5944 was introduced to apply provisions like those in the Airline Flight Crew
Technical Corrections Act to railroad employees subject to the hours of service laws under
chapter 211 of title 49, United States Code.
35 As previously noted, OPM included in its proposed regulations about military family caregiver leave for eligible civil
service employees a request for comments on whether it should pursue legislation to extend P.L. 110-181’s exigency
leave to employees covered under Title II of the FMLA.
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Other bills introduced during the 111th Congress would, among other things, effectively increase
the number of employees eligible to take FMLA leave by such means as changing the hours-of-
work requirement, adding new reasons for time-off, and increasing the groups of eligible
employees.
• H.R. 389 would eliminate the hours-of-service requirement, thereby entitling to
12 workweeks of FMLA leave both part-time and full-time employees who
worked for a covered employer for at least 12 months.
• H.R. 626/S. 354 would (1) allow federal employees to substitute paid leave for
unpaid leave available for the birth of a child or the placement of a child for
adoption or foster care, and (2) amend the Congressional Accountability Act as
well as the Family and Medical Leave Act to allow the same substitution for
covered congressional employees and employees of the Government
Accountability Office and the Library of Congress.
• H.R. 824 would allow employees to (1) take “parental involvement leave” to
participate in or attend their children’s and grandchildren’s educational and
extracurricular activities sponsored by schools and community organizations, and
(2) take “family wellness leave” to meet routine family medical care needs (e.g.,
medical appointments of the employee’s son, daughter, spouse, or grandchild) as
well as attend to the care of elderly relatives (e.g., visits to nursing homes).
FMLA leave taken for these reasons would not exceed four hours in any 30-day
period, and not exceed 24 hours in any 12-month period.
• H.R. 2132/S. 3680 would extend leave under the FMLA to care for a same-sex
spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who
has a serious health condition.
• H.R. 2515 would allow FMLA leave for the purpose of addressing domestic
violence, sexual assault, or stalking and their effects. It would include domestic
partners and same-sex spouses under the statute as well.
• H.R. 2776 would amend the FMLA to permit leave to make organ donations.
• Among the provisions in H.R. 3047 are amendments to the FMLA. These include
lowering the size threshold for employer coverage to those with 15 or more
workers, reducing the hours-of-work requirement to 1,050 in a 12-month period,
extending the eligible groups for whom leave could be taken to care for serious
health conditions (see H.R. 2132), and authorizing parental involvement and
family wellness leave (see H.R. 824) as well as domestic violence leave (see
H.R. 2515).
H.R. 2161 focuses on the DOL regulations which became effective in January 2009. It would
repeal changes made to the original regulations regarding, for example, paid leave substitution,
employee notice requirements for leave, and clarification of medical certification; in those cases,
the bill would reinstate the provisions promulgated in 1995. Regarding the frequency of a medical
recertification, the bill would permit employers to require one only after the expiration of the
period indicated in the original certification, or one year after obtaining the original certification
if it indicated the medical condition would last longer than one year. Regarding the frequency of
visits to a health care provider when the employee has a serious health condition or a chronic
condition, the bill would delete the specific number of visits stated in the rule.
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In the 110th Congress
Foreign military operations involving members of the National Guard and Reserves conducted in
the last several years prompted congressional interest in modifying the FMLA. In May 2007, the
House included in the FY2008 DOD authorization bill (H.R. 1585), at Section 675, an FMLA
amendment that would enable employees already eligible under the act to take leave to deal with
matters arising from the call to duty (e.g., making child-care arrangements). In contrast, the leave
programs mandated temporarily in H.R. 1585, as passed by the Senate in October 2007, did not
amend the FMLA.
The conference report (H.Rept. 110-477) included Section 675 and substituted a slightly modified
S. 1975 for the language contained in the Senate-passed version of H.R. 1585. S. 1975 was one of
several bills to amend the FMLA introduced in response to a recommendation of the President’s
Commission on Care for America’s Returning Wounded Warriors (Dole-Shalala Commission).
One of the recommendations contained in the commission’s report was to lengthen the FMLA
leave period from 12 workweeks to six months for otherwise FMLA-eligible spouses and parents
caring for seriously injured or ill service members.
President Bush vetoed H.R. 1585 in December 2007. The following month, he signed a revised
National Defense Authorization Act (NDAA) of FY2008 (H.R. 4986) into law. P.L. 110-181
contained both military-related amendments to the FMLA at Section 585. Specifically, the NDAA
of FY2008 provided
• 12 workweeks of unpaid leave to eligible employees covered under Title I of the
FMLA (i.e., employees at private sector firms with at least 50 employees and at
public agencies) who are dealing with issues arising from family members in the
Guard or Reserves being called to active duty as a result of a qualifying exigency,
and
• 26 workweeks of unpaid leave to eligible employees (and next of kin) covered
under Title I and Title II (i.e., civil service employees) of the FMLA who are
caring for seriously injured or ill service members in the Armed Forces, Guard,
or Reserves.
Author Contact Information
Gerald Mayer
Analyst in Labor Policy
gmayer@crs.loc.gov, 7-7815
Acknowledgments
This report is an update of a CRS report originally written by Linda Levine.
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