FMLA – Family Medical Leave Act

Source: United States Department of Labor

 

Wage and Hour Division (WHD)

The Family and Medical Leave Act of 1993, as amended

Public Law 103-3
Enacted February 5, 1993

As Amended by Section 585 of the National Defense Authorization Act for FY
2008, Public Law [110-181] Enacted January 28, 2008

As Amended by Section 565 of the National Defense
Authorization Act for Fiscal Year 2010, Public Law [111-84] Enacted October 28,
2009

As Amended by the Airline Flight Crew Technical Corrections
Act, Public Law [111-119] Enacted December 21, 2009

The original text of the Family and Medical Leave Act of 1993 is set in the
Verdana typeface. Amended language as enacted by subsequent amendments
is represented as follows:

Amendments

Typeface Used

Public Law

Date Enacted

Statute Citation

2008

Verdana Boldface
Italics

110-181

01/28/2008

122 Stat. 128

2009

Century
Gothic

111-84

10/28/2009

123
Stat. 2309

2009

Courier New

111-119

12/21/2009

123 Stat. 3476

 

An Act

To grant family and temporary medical leave under certain circumstances.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.–This Act may be cited as the “Family and Medical
Leave Act of 1993”.

(b) TABLE OF CONTENTS.–The table of contents is as follows:

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SEC. 2. FINDINGS AND PURPOSES.

  • (a) FINDINGS.–Congress finds that–
    • (1) the number of single-parent households and two-parent
      households in which the single parent or both parents work is increasing
      significantly;
    • (2) it is important for the development of children and
      the family unit that fathers and mothers be able to participate in early
      childrearing and the care of family members who have serious health
      conditions;
    • (3) the lack of employment policies to accommodate
      working parents can force individuals to choose between job security and
      parenting;
    • (4) there is inadequate job security for employees who
      have serious health conditions that prevent them from working for
      temporary periods;
    • (5) due to the nature of the roles of men and women in
      our society, the primary responsibility for family caretaking often falls
      on women, and such responsibility affects the working lives of women more
      than it affects the working lives of men; and
    • (6) employment standards that apply to one gender only
      have serious potential for encouraging employers to discriminate against
      employees and applicants for employment who are of that gender.
  • (b) PURPOSES.–It is the purpose of this Act–
    • (1) to balance the demands of the workplace with the
      needs of families, to promote the stability and economic security of
      families, and to promote national interests in preserving family
      integrity;
    • (2) to entitle employees to take reasonable leave for
      medical reasons, for the birth or adoption of a child, and for the care
      of a child, spouse, or parent who has a serious health condition;
    • (3) to accomplish the purposes described in paragraphs
      (1) and (2) in a manner that accommodates the legitimate interests of
      employers;
    • (4) to accomplish the purposes described in paragraphs
      (1) and (2) in a manner that, consistent with the Equal Protection Clause
      of the Fourteenth Amendment, minimizes the potential for employment
      discrimination on the basis of sex by ensuring generally that leave is
      available for eligible medical reasons (including maternity-related
      disability) and for compelling family reasons, on a gender-neutral basis;
      and
    • (5) to promote the goal of equal employment opportunity
      for women and men, pursuant to such clause.
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TITLE I–GENERAL REQUIREMENTS FOR LEAVE

  • SEC. 101. DEFINITIONS.
    • (1) COMMERCE.–The terms “commerce” and
      “industry or activity affecting commerce” mean any activity,
      business, or industry in commerce or in which a labor dispute would
      hinder or obstruct commerce or the free flow of commerce, and include
      “commerce” and any “industry affecting commerce”, as
      defined in paragraphs (1) and (3) of section 501 of the Labor Management
      Relations Act, 1947 (29 U.S.C. 142 (1) and (3)).
    • (2) ELIGIBLE EMPLOYEE.–
      • (A) IN GENERAL.–The term “eligible employee”
        means an employee who has been employed

        • (i) for at least 12 months by the employer with respect
          to whom leave is requested under section 102; and
        • (ii) for at least 1,250 hours of service with such
          employer during the previous 12-month period.
      • (B) EXCLUSIONS.–The term “eligible employee”
        does not include

        • (i) any Federal officer or employee covered under
          subchapter V of chapter 63 of title 5, United States Code (as added by
          title II of this Act); or
        • (ii) any employee of an employer who is employed at a
          worksite at which such employer employs less than 50 employees if the
          total number of employees employed by that employer within 75 miles of
          that worksite is less than 50.
      • (C) DETERMINATION.–For purposes of determining whether
        an employee meets the hours of service requirement specified in
        subparagraph

        • (A)(ii), the legal standards established under section
          7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) shall apply.
      • (D) Airline Flight Crews.—
        • (i) Determination.—For purposes of
          determining whether an employee who is a flight attendant or flight
          crewmember (as such terms are defined in regulations of the Federal
          Aviation Administration) meets the hours of service requirement
          specified in subparagraph (A)(ii), the employee will be considered to
          meet the requirement if—

          • (I) the
            employee has worked or been paid for not less than 60 percent of the
            applicable total monthly guarantee, or the equivalent, for the
            previous 12-month period, for or by the employer with respect to whom
            leave is requested under section 102; and
          • (II) the
            employee has worked or been paid for not less than 504 hours (not
            counting personal commute time or time spent on vacation leave or
            medical or sick leave) during the previous 12-month period, for or by
            that employer.
        • (ii) File.—Each employer of an
          employee described in clause (i) shall maintain on file with the
          Secretary (in accordance with such regulations as the Secretary may
          prescribe) containing information specifying the applicable monthly
          guarantee with respect to each category of employee to which such
          guarantee applies.
        • (iii) Definition.—In this
          subparagraph, the term ‘applicable monthly guarantee’ means—

          • (I) for an
            employee described in clause (i) other than an employee on reserve
            status, the minimum number of hours for which an employer has agreed
            to schedule such employee for any given month; and
          • (II) for an
            employee described in clause (i) who is on reserve status, the number
            of hours for which an employer has agreed to pay such employee on
            reserve status for any given month, as established in the applicable
            collective bargaining agreement or, if none exists, in the employer’s
            policies.
    • (3) EMPLOY; EMPLOYEE; STATE.–The terms
      “employ”, “employee”, and “State” have the
      same meanings given such terms in subsections (c), (e), and (g) of
      section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(c), (e),
      and (g)).
    • (4) EMPLOYER.–
      • (A) IN GENERAL.–The term “employer”
        • (i) means any person engaged in commerce or in any
          industry or activity affecting commerce who employs 50 or more
          employees for each working day during each of 20 or more calendar
          workweeks in the current or preceding calendar year;
        • (ii) includes–
          • (I) any person who acts, directly or indirectly, in
            the interest of an employer to any of the employees of such employer;
            and
          • (II) any successor in interest of an employer; and
        • (iii) includes any “public agency”, as
          defined in section 3(x) of the Fair Labor Standards Act of 1938 (29
          U.S.C. 203(x)).
      • (B) PUBLIC AGENCY.–For purposes of subparagraph
        (A)(iii), a public agency shall be considered to be a person engaged in
        commerce or in an industry or activity affecting commerce.
    • (5) EMPLOYMENT BENEFITS.–The term “employment
      benefits” means all benefits provided or made available to employees
      by an employer, including group life insurance, health insurance,
      disability insurance, sick leave, annual leave, educational benefits, and
      pensions, regardless of whether such benefits are provided by a practice
      or written policy of an employer or through an “employee benefit plan”,
      as defined in section 3(3) of the Employee Retirement Income Security Act
      of 1974 (29 U.S.C. 1002(3)).
    • (6) HEALTH CARE PROVIDER.–The term “health care
      provider” means–

      • (A) a doctor of medicine or osteopathy who is authorized
        to practice medicine or surgery (as appropriate) by the State in which
        the doctor practices; or
      • (B) any other person determined by the Secretary to be
        capable of providing health care services.
    • (7) PARENT.–The term “parent” means the
      biological parent of an employee or an individual who stood in loco
      parentis to an employee when the employee was a son or daughter.
    • (8) PERSON.–The term “person” has the same
      meaning given such term in section 3(a) of the Fair Labor Standards Act
      of 1938 (29 U.S.C. 203(a)).
    • (9) REDUCED LEAVE SCHEDULE.–The term “reduced leave
      schedule” means a leave schedule that reduces the usual number of
      hours per workweek, or hours per workday, of an employee.
    • (10) SECRETARY.–The term “Secretary” means the
      Secretary of Labor.
    • (11) SERIOUS HEALTH CONDITION. The term “serious
      health condition” means an illness, injury, impairment, or physical
      or mental condition that involves

      • (A) inpatient care in a hospital, hospice, or
        residential medical care facility; or
      • (B) continuing treatment by a health care provider.
    • (12) SON OR DAUGHTER.–The term “son or
      daughter” means a biological, adopted, or foster child, a stepchild,
      a legal ward, or a child of a person standing in loco parentis, who is–

      • (A) under 18 years of age; or
      • (B) 18 years of age or older and incapable of self-care
        because of a mental or physical disability.
    • (13) SPOUSE.–The term “spouse” means a husband
      or wife, as the case may be.
    • (14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means–
      • (A) in the case of a member of a regular component of
        the Armed Forces, duty during the deployment of the member with the
        Armed Forces to a foreign country; and
      • (B) in the case of a member of the reserve component
        of the Armed Forces, duty during the deployment of the member with the
        Armed Forces to a foreign country under a call or order to active duty
        under a provision of law referred to in section 101(a)(13)(B) of title
        10, United States Code.
    • (15) COVERED SERVICEMEMBER.—The term
      “covered servicemember” means

      • (A) a member of the Armed Forces (including a member
        of the National Guard or Reserves) who is undergoing medical treatment,
        recuperation, or therapy, is otherwise in outpatient status, or is
        otherwise on the temporary disability retired list, for a serious injury
        of illness; or
      • (B) a veteran who is undergoing medical treatment,
        recuperation, or therapy, for a serious injury or illness and who was a
        member of the Armed Forces (including a member of the National Guard or
        Reserves) at any time during the period of 5 years preceding the date on
        which the veteran undergoes that medical treatment, recuperation, or
        therapy.
    • (16) OUTPATIENT STATUS.—The term “outpatient status”,
      with respect to a covered servicemember, means the status of a member of
      the Armed Forces assigned to—

      • (A) a military medical treatment facility as an
        outpatient; or
      • (B) a unit established for the purpose of
        providing command and control of members of the Armed Forces receiving
        medical care as outpatients.
    • (17) NEXT OF KIN.—The term ”next of kin”, used with
      respect to an individual, means the nearest blood relative of that
      individual.
    • (18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or
      illness’—

      • (A) in the case of a member of the Armed Forces
        (including a member of the National Guard or Reserves), means an injury
        or illness that was incurred by the member in line of duty on active
        duty in the Armed Forces (or existed before the beginning of the
        member’s active duty and was aggravated by service in line of duty on
        active duty in the Armed Forces) and that may render the member
        medically unfit to perform the duties of the member’s office, grade,
        rank, or rating; and
      • (B) in the case of a veteran who was a member of the
        Armed Forces (including a member of the National Guard or Reserves) at
        any time during a period described in paragraph (15)(B), means a
        qualifying (as defined by the Secretary of Labor) injury or illness that
        was incurred by the member in line of duty on active duty in the Armed
        Forces (or existed before the beginning of the member’s active duty and
        was aggravated by service in line of duty on active duty in the Armed
        Forces) and that manifested itself before or after the member became a
        veteran.
    • (19)
      VETERAN.—The term ‘veteran’ has the meaning given the term in section 101
      of title 38, United States Code.
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  • SEC. 102. LEAVE REQUIREMENT .
    • (a) IN GENERAL.–
      • (1) ENTITLEMENT TO LEAVE.–Subject to section 103, an
        eligible employee shall be entitled to a total of 12 workweeks of leave
        during any 12-month period for one or more of the following:

        • (A) Because of the birth of a son or daughter of the
          employee and in order to care for such son or daughter.
        • (B) Because of the placement of a son or daughter with
          the employee for adoption or foster care.
        • (C) In order to care for the spouse, or a son,
          daughter, or parent, of the employee, if such spouse, son, daughter, or
          parent has a serious health condition.
        • (D) Because of a serious health condition that makes
          the employee unable to perform the functions of the position of such
          employee.
        • (E) Because of any qualifying exigency (as the
          Secretary shall, by regulation, determine) arising out of the fact that
          the spouse, or a son, daughter, or parent of the employee is on
          covered active
          duty
          (or has been notified of an impending call or order to
          covered active
          duty
          ) in the Armed Forces.
      • (2) EXPIRATION OF ENTITLEMENT.–The entitlement to leave
        under subparagraphs (A) and (B) of paragraph (1) for a birth or
        placement of a son or daughter shall expire at the end of the 12-month
        period beginning on the date of such birth or placement.
      • (3) SERVICEMEMBER FAMILY LEAVE.—Subject to
        section 103, an eligible employee who is the spouse, son, daughter,
        parent, or next of kin of a covered servicemember shall be entitled to a
        total of 26 workweeks of leave during a 12-month period to care for the
        servicemember. The leave described in this paragraph shall only be
        available during a single 12-month period.
      • (4) COMBINED LEAVE TOTAL.—During the single
        12-month period described in paragraph (3), an eligible employee shall
        be entitled to a combined total of 26 workweeks of leave under
        paragraphs (1) and (3). Nothing in this paragraph shall be construed to
        limit the availability of leave under paragraph (1) during any other
        12-month period.
      • (5) Calculation of leave
        for airline flight crews
        .—The Secretary may provide, by
        regulation, a method for calculating the leave described in paragraph
        (1) with respect to employees described in section 101(2)(D).
    • (b) LEAVE TAKEN INTERMITTENTLY OR ON A REDUCED LEAVE
      SCHEDULE.

      • (1) IN GENERAL.–Leave under subparagraph (A) or (B) of
        subsection (a)(1) shall not be taken by an employee intermittently or on
        a reduced leave schedule unless the employee and the employer of the
        employee agree otherwise. Subject to paragraph (2), subsection (e)(2),
        and subsection (b)(5) or (f) (as appropriate) of section 103,
        leave under subparagraph (C) or (D) of subsection (a)(1) or under
        subsection (a)(3)
        may be taken intermittently or on a reduced
        leave schedule when medically necessary. Subject to subsection
        (e)(3) and section 103(f), leave under subsection (a)(1)(E) may be taken
        intermittently or on a reduced leave schedule.
        The taking of
        leave intermittently or on a reduced leave schedule pursuant to this
        paragraph shall not result in a reduction in the total amount of leave
        to which the employee is entitled under subsection (a) beyond the amount
        of leave actually taken.
      • (2) ALTERNATIVE POSITION. — If an employee requests
        intermittent leave, or leave on a reduced leave schedule, under
        subparagraph (C) or (D) of subsection (a)(1) or under subsection
        (a)(3)
        , that is foreseeable based on planned medical treatment,
        the employer may require such employee to transfer temporarily to an
        available alternative position offered by the employer for which the
        employee is qualified and that–

        • (A) has equivalent pay and benefits; and
        • (B) better accommodates recurring periods of leave than
          the regular employment position of the employee.
    • (c) UNPAID LEAVE PERMITTED. — Except as provided in
      subsection (d), leave granted under subsection (a) may consist of unpaid
      leave. Where an employee is otherwise exempt under regulations issued by
      the Secretary pursuant to section 13(a)(1) of the Fair Labor Standards
      Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an employer with
      this title by providing unpaid leave shall not affect the exempt status
      of the employee under such section.
    • (d) RELATIONSHIP TO PAID LEAVE.–
      • (1) UNPAID LEAVE.–If an employer provides paid leave for fewer than 12
        workweeks (or 26 workweeks in the case of leave provided under
        subsection (a)(3))
        , the additional weeks of leave necessary to
        attain the 12 workweeks (or 26 workweeks, as appropriate)
        of leave required under this title may be provided without compensation.
      • (2) SUBSTITUTION OF PAID LEAVE.–
        • (A) IN GENERAL.–An eligible employee may elect, or an
          employer may require the employee, to substitute any of the accrued
          paid vacation leave, personal leave, or family leave of the employee
          for leave provided under subparagraph (A), (B), (C), or (E)
          of subsection (a)(1) for any part of the 12-week period of such leave
          under such subsection.
        • (B) SERIOUS HEALTH CONDITION.–An eligible employee may
          elect, or an employer may require the employee, to substitute any of
          the accrued paid vacation leave, personal leave, or medical or sick leave
          of the employee for leave provided under subparagraph (C) or (D) of
          subsection (a)(1) for any part of the 12-week period of such leave
          under such subsection, except that nothing in this title shall require
          an employer to provide paid sick leave or paid medical leave in any
          situation in which such employer would not normally provide any such
          paid leave. An eligible employee may elect, or an employer may
          require the employee, to substitute any of the accrued paid vacation
          leave, personal leave, family leave, or medical or sick leave of the
          employee for leave provided under subsection (a)(3) for any part of the
          26-week period of such leave under such subsection, except that nothing
          in this title requires an employer to provide paid sick leave or paid
          medical leave in any situation in which the employer would not normally
          provide any such paid leave.
    • (e) FORESEEABLE LEAVE.–
      • (1) REQUIREMENT OF NOTICE.–In any case in which the
        necessity for leave under subparagraph (A) or (B) of subsection (a)(1)
        is foreseeable based on an expected birth or placement, the employee
        shall provide the employer with not less than 30 days’ notice, before
        the date the leave is to begin, of the employee’s intention to take
        leave under such subparagraph, except that if the date of the birth or
        placement requires leave to begin in less than 30 days, the employee
        shall provide such notice as is practicable.
      • (2) DUTIES OF EMPLOYEE.–In any case in which the
        necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or
        under subsection (a)(3)
        is foreseeable based on planned medical
        treatment, the employee–

        • (A) shall make a reasonable effort to schedule the
          treatment so as not to disrupt unduly the operations of the employer,
          subject to the approval of the health care provider of the employee or
          the health care provider of the son, daughter, spouse, parent, or covered servicemember of
          the employee, as appropriate; and
        • (B) shall provide the employer with not less than 30
          days’ notice, before the date the leave is to begin, of the employee’s
          intention to take leave under such subparagraph, except that if the
          date of the treatment requires leave to begin in less than 30 days, the
          employee shall provide such notice as is practicable.
      • (3) NOTICE FOR LEAVE DUE TO COVERED ACTIVE DUTY
        OF FAMILY MEMBER.—In any case in which the necessity for leave
        under subsection (a)(1)(E) is foreseeable, whether because the spouse,
        or a son, daughter, or parent, of the employee is on
        covered active
        duty
        , or because of notification of an impending call or order
        to
        covered active duty, the employee shall provide such
        notice to the employer as is reasonable and practicable.
    • (f) SPOUSES EMPLOYED BY THE SAME EMPLOYER.–
      • (1) IN GENERAL.– In any case in which a
        husband and wife entitled to leave under subsection (a) are employed by
        the same employer, the aggregate number of workweeks of leave to which
        both may be entitled may be limited to 12 workweeks during any 12-month
        period, if such leave is taken–

        • (A) under subparagraph (A) or (B) of
          subsection (a)(1); or
        • (B) to care for a sick parent under
          subparagraph (C) of such subsection.
      • (2) SERVICEMEMBER FAMILY LEAVE.–
        • (A) IN GENERAL.–The aggregate number of
          workweeks of leave to which both that husband and wife may be entitled
          under subsection (a) may be limited to 26 workweeks during the single
          12-month period described in subsection (a)(3) if the leave is–

          • (i) leave under subsection (a)(3); or
          • (ii) a combination of leave under subsection
            (a)(3) and leave described in paragraph (1).
        • (B) BOTH LIMITATIONS APPLICABLE.–If the leave
          taken by the husband and wife includes leave described in paragraph
          (1), the limitation in paragraph (1) shall apply to the leave described
          in paragraph (1).
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  • SEC. 103. CERTIFICATION.
    • (a) IN GENERAL.–An employer may require that a request
      for leave under subparagraph (C) or (D) of paragraph (1) or
      paragraph (3) of section 102(a)
      be supported by a certification
      issued by the health care provider of the eligible employee or of the
      son, daughter, spouse, or parent of the employee, or of the next
      of kin of an individual in the case of leave taken under such paragraph
      (3),
      as appropriate. The employee shall provide, in a timely
      manner, a copy of such certification to the employer.
    • (b) SUFFICIENT CERTIFICATION.–Certification provided
      under subsection (a) shall be sufficient if it states

      • (1) the date on which the serious health condition
        commenced;
      • (2) the probable duration of the condition;
      • (3) the appropriate medical facts within the knowledge
        of the health care provider regarding the condition;
      • (4)(A) for purposes of leave under section 102(a)(1)(C),
        a statement that the eligible employee is needed to care for the son,
        daughter, spouse, or parent and an estimate of the amount of time that
        such employee is needed to care for the son, daughter, spouse, or
        parent; and
        (B) for purposes of leave under section 102(a)(1)(D), a statement that
        the employee is unable to perform the functions of the position of the
        employee;
      • (5) in the case of certification for intermittent leave,
        or leave on a reduced leave schedule, for planned medical treatment, the
        dates on which such treatment is expected to be given and the duration
        of such treatment;
      • (6) in the case of certification for intermittent leave,
        or leave on a reduced leave schedule, under section 102(a)(1)(D), a
        statement of the medical necessity for the intermittent leave or leave
        on a reduced leave schedule, and the expected duration of the
        intermittent leave or reduced leave schedule; and
      • (7) in the case of certification for intermittent leave,
        or leave on a reduced leave schedule, under section 102(a)(1)(C), a
        statement that the employee’s intermittent leave or leave on a reduced
        leave schedule is necessary for the care of the son, daughter, parent,
        or spouse who has a serious health condition, or will assist in their
        recovery, and the expected duration and schedule of the intermittent
        leave or reduced leave schedule.
    • (c) SECOND OPINION.–
      • (1) IN GENERAL.–In any case in which the employer has
        reason to doubt the validity of the certification provided under
        subsection (a) for leave under subparagraph (C) or (D) of section
        102(a)(1), the employer may require, at the expense of the employer,
        that the eligible employee obtain the opinion of a second health care
        provider designated or approved by the employer concerning any
        information certified under subsection (b) for such leave.
      • (2) LIMITATION.–A health care provider designated or
        approved under paragraph (1) shall not be employed on a regular basis by
        the employer.
    • (d) RESOLUTION OF CONFLICTING OPINIONS.–
      • (1) IN GENERAL.–In any case in which the second opinion
        described in subsection (c) differs from the opinion in the original
        certification provided under subsection (a), the employer may require,
        at the expense of the employer, that the employee obtain the opinion of
        a third health care provider designated or approved jointly by the
        employer and the employee concerning the information certified under
        subsection (b).
      • (2) FINALITY.–The opinion of the third health care
        provider concerning the information certified under subsection (b) shall
        be considered to be final and shall be binding on the employer and the
        employee.
    • (e) SUBSEQUENT RECERTIFICATION.–The employer may require
      that the eligible employee obtain subsequent recertifications on a
      reasonable basis.
    • (f) CERTIFICATION RELATED TO COVERED ACTIVE
      DUTY
      OR CALL TO
      COVERED ACTIVE DUTY.—An employer may require
      that a request for leave under section 102(a)(1)(E) be supported by a
      certification issued at such time and in such manner as the Secretary may
      by regulation prescribe. If the Secretary issues a regulation requiring
      such certification, the employee shall provide, in a timely manner, a
      copy of such certification to the employer.
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  • SEC. 104. EMPLOYMENT AND BENEFITS PROTECTION.
    • (a) RESTORATION TO POSITION.–
      • (1) IN GENERAL.–Except as provided in subsection (b),
        any eligible employee who takes leave under section 102 for the intended
        purpose of the leave shall be entitled, on return from such leave–

        • (A) to be restored by the employer to the position of
          employment held by the employee when the leave commenced; or
        • (B) to be restored to an equivalent position with
          equivalent employment benefits, pay, and other terms and conditions of
          employment.
      • (2) LOSS OF BENEFITS.–The taking of leave under section
        102 shall not result in the loss of any employment benefit accrued prior
        to the date on which the leave commenced.
      • (3) LIMITATIONS.–Nothing in this section shall be
        construed to entitle any restored employee to–

        • (A) the accrual of any seniority or employment benefits
          during any period of leave; or
        • (B) any right, benefit, or position of employment other
          than any right, benefit, or position to which the employee would have
          been entitled had the employee not taken the leave.
      • (4) CERTIFICATION.–As a condition of restoration under
        paragraph (1) for an employee who has taken leave under section
        102(a)(1)(D), the employer may have a uniformly applied practice or
        policy that requires each such employee to receive certification from
        the health care provider of the employee that the employee is able to
        resume work, except that nothing in this paragraph shall supersede a
        valid State or local law or a collective bargaining agreement that
        governs the return to work of such employees.
      • (5) CONSTRUCTION.–Nothing in this subsection shall be
        construed to prohibit an employer from requiring an employee on leave
        under section 102 to report periodically to the employer on the status
        and intention of the employee to return to work.
    • (b) EXEMPTION CONCERNING CERTAIN HIGHLY COMPENSATED
      EMPLOYEES.–

      • (1) DENIAL OF RESTORATION.–An employer may deny
        restoration under subsection (a) to any eligible employee described in
        paragraph (2) if–

        • (A) such denial is necessary to prevent substantial and
          grievous economic injury to the operations of the employer;
        • (B) the employer notifies the employee of the intent of
          the employer to deny restoration on such basis at the time the employer
          determines that such injury would occur; and
        • (C) in any case in which the leave has commenced, the
          employee elects not to return to employment after receiving such
          notice.
      • (2) AFFECTED EMPLOYEES.–An eligible employee described
        in paragraph (1) is a salaried eligible employee who is among the
        highest paid 10 percent of the employees employed by the employer within
        75 miles of the facility at which the employee is employed.
    • (c) MAINTENANCE OF HEALTH BENEFITS.–
      • (1) COVERAGE.–Except as provided in paragraph (2),
        during any period that an eligible employee takes leave under section
        102, the employer shall maintain coverage under any “group health
        plan” (as defined in section 5000(b)(1) of the Internal Revenue
        Code of 1986) for the duration of such leave at the level and under the
        conditions coverage would have been provided if the employee had
        continued in employment continuously for the duration of such leave.
      • (2) FAILURE TO RETURN FROM LEAVE.–The employer may
        recover the premium that the employer paid for maintaining coverage for
        the employee under such group health plan during any period of unpaid
        leave under section 102 if–

        • (A) the employee fails to return from leave under
          section 102 after the period of leave to which the employee is entitled
          has expired; and
        • (B) the employee fails to return to work for a reason
          other than–

          • (i) the continuation, recurrence, or onset of a
            serious health condition that entitles the employee to leave under
            subparagraph (C) or (D) of section 102(a)(1) or under section
            102(a)(3)
            ; or
          • (ii) other circumstances beyond the control of the
            employee.
      • (3) CERTIFICATION.–
        • (A) ISSUANCE.–An employer may require that a claim
          that an employee is unable to return to work because of the
          continuation, recurrence, or onset of the serious health condition
          described in paragraph (2)(B)(i) be supported by–

          • (i) a certification issued by the health care provider
            of the son, daughter, spouse, or parent of the employee, as
            appropriate, in the case of an employee unable to return to work
            because of a condition specified in section 102(a)(1)(C); or
          • (ii) a certification issued by the health care
            provider of the eligible employee, in the case of an employee unable
            to return to work because of a condition specified in section
            102(a)(1)(D); or
          • (iii) a certification issued by the health care
            provider of the servicemember being cared for by the employee, in the
            case of an employee unable to return to work because of a condition
            specified in section 102(a)(3).
        • (B) COPY.–The employee shall provide, in a timely
          manner, a copy of such certification to the employer.
        • (C) SUFFICIENCY OF CERTIFICATION.–
          • (i) LEAVE DUE TO SERIOUS HEALTH CONDITION OF
            EMPLOYEE.–The certification described in subparagraph (A)(ii) shall
            be sufficient if the certification states that a serious health
            condition prevented the employee from being able to perform the
            functions of the position of the employee on the date that the leave
            of the employee expired.
          • (ii) LEAVE DUE TO SERIOUS HEALTH CONDITION OF FAMILY
            MEMBER.–The certification described in subparagraph (A)(i) shall be
            sufficient if the certification states that the employee is needed to
            care for the son, daughter, spouse, or parent who has a serious health
            condition on the date that the leave of the employee expired.
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  • SEC. 105. PROHIBITED ACTS.
    • (a) INTERFERENCE WITH RIGHTS.–
      • (1) EXERCISE OF RIGHTS.–It shall be unlawful for any
        employer to interfere with, restrain, or deny the exercise of or the
        attempt to exercise, any right provided under this title.
      • (2) DISCRIMINATION.–It shall be unlawful for any
        employer to discharge or in any other manner discriminate against any
        individual for opposing any practice made unlawful by this title.
    • (b) INTERFERENCE WITH PROCEEDINGS OR INQUIRIES.–It shall
      be unlawful for any person to discharge or in any other manner
      discriminate against any individual because such individual–

      • (1) has filed any charge, or has instituted or caused to
        be instituted any proceeding, under or related to this title;
      • (2) has given, or is about to give, any information in
        connection with any inquiry or proceeding relating to any right provided
        under this title; or
      • (3) has testified, or is about to testify, in any
        inquiry or proceeding relating to any right provided under this title.
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  • SEC. 106. INVESTIGATIVE AUTHORITY.
    • (a) IN GENERAL.–To ensure compliance with the provisions
      of this title, or any regulation or order issued under this title, the
      Secretary shall have, subject to subsection (c), the investigative
      authority provided under section 11(a) of the Fair Labor Standards Act of
      1938 (29 U.S.C. 211(a)).
    • (b) OBLIGATION TO KEEP AND PRESERVE RECORDS.–Any
      employer shall make, keep, and preserve records pertaining to compliance
      with this title in accordance with section 11(c) of the Fair Labor
      Standards Act of 1938 (29 U.S.C. 211(c)) and in accordance with
      regulations issued by the Secretary.
    • (c) REQUIRED SUBMISSIONS GENERALLY LIMITED TO AN ANNUAL
      BASIS.–The Secretary shall not under the authority of this section
      require any employer or any plan, fund, or program to submit to the
      Secretary any books or records more than once during any 12-month period,
      unless the Secretary has reasonable cause to believe there may exist a
      violation of this title or any regulation or order issued pursuant to
      this title, or is investigating a charge pursuant to section 107(b).
    • (d) SUBPOENA POWERS.–For the purposes of any
      investigation provided for in this section, the Secretary shall have the
      subpoena authority provided for under section 9 of the Fair Labor
      Standards Act of 1938
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  • SEC. 107. ENFORCEMENT.
    • (a) CIVIL ACTION BY EMPLOYEES.–
      • (1) LIABILITY.–Any employer who violates section 105
        shall be liable to any eligible employee affected–

        • (A) for damages equal to–
          • (i) the amount of–
            • (I) any wages, salary, employment benefits, or other
              compensation denied or lost to such employee by reason of the
              violation; or
            • (II) in a case in which wages, salary, employment
              benefits, or other compensation have not been denied or lost to the
              employee, any actual monetary losses sustained by the employee as a
              direct result of the violation, such as the cost of providing care,
              up to a sum equal to 12 weeks (or 26 weeks, in a case
              involving leave under section 102(a)(3))
              of wages or salary
              for the employee;
          • (ii) the interest on the amount described in clause
            (i) calculated at the prevailing rate; and
          • (iii) an additional amount as liquidated damages equal
            to the sum of the amount described in clause (i) and the interest
            described in clause (ii), except that if an employer who has violated
            section 105 proves to the satisfaction of the court that the act or
            omission which violated section 105 was in good faith and that the
            employer had reasonable grounds for believing that the act or omission
            was not a violation of section 105, such court may, in the discretion
            of the court, reduce the amount of the liability to the amount and
            interest determined under clauses (i) and (ii), respectively; and
        • (B) for such equitable relief as may be appropriate,
          including employment, reinstatement, and promotion.
      • (2) RIGHT OF ACTION.–An action to recover the damages
        or equitable relief prescribed in paragraph (1) may be maintained
        against any employer (including a public agency) in any Federal or State
        court of competent jurisdiction by any one or more employees for and in
        behalf of–

        • (A) the employees; or
        • (B) the employees and other employees similarly
          situated.
      • (3) FEES AND COSTS.–The court in such an action shall,
        in addition to any judgment awarded to the plaintiff, allow a reasonable
        attorney’s fee, reasonable expert witness fees, and other costs of the
        action to be paid by the defendant.
      • (4) LIMITATIONS.–The right provided by paragraph (2) to
        bring an action by or on behalf of any employee shall terminate–

        • (A) on the filing of a complaint by the Secretary in an
          action under subsection (d) in which restraint is sought of any further
          delay in the payment of the amount described in paragraph (1)(A) to
          such employee by an employer responsible under paragraph (1) for the
          payment; or
        • (B) on the filing of a complaint by the Secretary in an
          action under subsection (b) in which a recovery is sought of the
          damages described in paragraph (1)(A) owing to an eligible employee by
          an employer liable under paragraph (1), unless the action described in
          subparagraph (A) or (B) is dismissed without prejudice on motion of the
          Secretary.
    • (b) ACTION BY THE SECRETARY.–
      • (1) ADMINISTRATIVE ACTION.–The Secretary shall receive,
        investigate, and attempt to resolve complaints of violations of section
        105 in the same manner that the Secretary receives, investigates, and
        attempts to resolve complaints of violations of sections 6 and 7 of the
        Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207).
      • (2) CIVIL ACTION.–The Secretary may bring an action in
        any court of competent jurisdiction to recover the damages described in
        subsection (a)(1)(A).
      • (3) SUMS RECOVERED.–Any sums recovered by the Secretary
        pursuant to paragraph (2) shall be held in a special deposit account and
        shall be paid, on order of the Secretary, directly to each employee
        affected. Any such sums not paid to an employee because of inability to
        do so within a period of 3 years shall be deposited into the Treasury of
        the United States as miscellaneous receipts.
    • (c) LIMITATION.–
      • (1) IN GENERAL.–Except as provided in paragraph (2), an
        action may be brought under this section not later than 2 years after
        the date of the last event constituting the alleged violation for which
        the action is brought.
      • (2) WILLFUL VIOLATION.–In the case of such action
        brought for a willful violation of section 105, such action may be
        brought within 3 years of the date of the last event constituting the
        alleged violation for which such action is brought.
      • (3) COMMENCEMENT.–In determining when an action is
        commenced by the Secretary under this section for the purposes of this
        subsection, it shall be considered to be commenced on the date when the
        complaint is filed.
    • (d) ACTION FOR INJUNCTION BY SECRETARY.–The district
      courts of the United States shall have jurisdiction, for cause shown, in
      an action brought by the Secretary–

      • (1) to restrain violations of section 105, including the
        restraint of any withholding of payment of wages, salary, employment
        benefits, or other compensation, plus interest, found by the court to be
        due to eligible employees; or
      • (2) to award such other equitable relief as may be
        appropriate, including employment, reinstatement, and promotion.
    • (e) SOLICITOR OF LABOR.–The Solicitor of Labor may
      appear for and represent the Secretary on any litigation brought under
      this section.
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  • SEC. 108. SPECIAL RULES CONCERNING
    EMPLOYEES OF LOCAL EDUCATIONAL AGENCIES.

    • (a) APPLICATION.–
      • (1) IN GENERAL.–Except as otherwise provided in this
        section, the rights (including the rights under section 104, which shall
        extend throughout the period of leave of any employee under this
        section), remedies, and procedures under this title shall apply to–

        • (A) any “local educational agency” (as
          defined in section 1471(12) of the Elementary and Secondary Education
          Act of 1965 (20 U.S.C. 2891(12))) and an eligible employee of the
          agency; and
        • (B) any private elementary or secondary school and an
          eligible employee of the school.
      • (2) DEFINITIONS.–For purposes of the application
        described in paragraph (1):

        • (A) ELIGIBLE EMPLOYEE.–The term “eligible
          employee” means an eligible employee of an agency or school
          described in paragraph (1).
        • (B) EMPLOYER.–The term “employer” means an
          agency or school described in paragraph (1).
    • (b) LEAVE DOES NOT VIOLATE CERTAIN OTHER FEDERAL LAWS.–
      A local educational agency and a private elementary or secondary school
      shall not be in violation of the Individuals with Disabilities Education
      Act (20 U.S.C. 1400 et seq.), section 504 of the Rehabilitation Act of
      1973 (29 U.S.C. 794), or title VI of the Civil Rights Act of 1964 (42
      U.S.C. 2000d et seq.), solely as a result of an eligible employee of such
      agency or school exercising the rights of such employee under this title.
    • (c) INTERMITTENT LEAVE OR LEAVE ON A REDUCED SCHEDULE FOR
      INSTRUCTIONAL EMPLOYEES.–

      • (1) IN GENERAL.–Subject to paragraph (2), in any case
        in which an eligible employee employed principally in an instructional
        capacity by any such educational agency or school requests leave under
        subparagraph (C) or (D) of section 102(a)(1) or under section
        102(a)(3)
        that is foreseeable based on planned medical
        treatment and the employee would be on leave for greater than 20 percent
        of the total number of working days in the period during which the leave
        would extend, the agency or school may require that such employee elect
        either–

        • (A) to take leave for periods of a particular duration,
          not to exceed the duration of the planned medical treatment; or
        • (B) to transfer temporarily to an available alternative
          position offered by the employer for which the employee is qualified,
          and that–

          • (i) has equivalent pay and benefits; and
          • (ii) better accommodates recurring periods of leave
            than the regular employment position of the employee.
      • (2) APPLICATION.–The elections described in
        subparagraphs (A) and (B) of paragraph (1) shall apply only with respect
        to an eligible employee who complies with section 102(e)(2).
    • (d) RULES APPLICABLE TO PERIODS NEAR THE CONCLUSION OF AN
      ACADEMIC TERM.–The following rules shall apply with respect to periods
      of leave near the conclusion of an academic term in the case of any
      eligible employee employed principally in an instructional capacity by
      any such educational agency or school:

      • (1) LEAVE MORE THAN 5 WEEKS PRIOR TO END OF TERM.–If
        the eligible employee begins leave under section 102 more than 5 weeks
        prior to the end of the academic term, the agency or school may require
        the employee to continue taking leave until the end of such term, if–

        • (A) the leave is of at least 3 weeks duration; and
        • (B) the return to employment would occur during the
          3-week period before the end of such term.
      • (2) LEAVE LESS THAN 5 WEEKS PRIOR TO END OF TERM.–If
        the eligible employee begins leave under subparagraph (A), (B), or (C)
        of section 102(a)(1) or under section 102(a)(3) during
        the period that commences 5 weeks prior to the end of the academic term,
        the agency or school may require the employee to continue taking leave
        until the end of such term, if–

        • (A) the leave is of greater than 2 weeks duration; and
        • (B) the return to employment would occur during the
          2-week period before the end of such term.
      • (3) LEAVE LESS THAN 3 WEEKS PRIOR TO END OF TERM.–If
        the eligible employee begins leave under subparagraph (A), (B), or (C)
        of section 102(a)(1) or under section 102(a)(3) during
        the period that commences 3 weeks prior to the end of the academic term
        and the duration of the leave is greater than 5 working days, the agency
        or school may require the employee to continue to take leave until the
        end of such term.
    • (e) RESTORATION TO EQUIVALENT EMPLOYMENT POSITION.–For
      purposes of determinations under section 104(a)(1)(B) (relating to the
      restoration of an eligible employee to an equivalent position), in the
      case of a local educational agency or a private elementary or secondary
      school, such determination shall be made on the basis of established
      school board policies and practices, private school policies and
      practices, and collective bargaining agreements.
    • (f) REDUCTION OF THE AMOUNT OF LIABILITY.–If a local
      educational agency or a private elementary or secondary school that has
      violated this title proves to the satisfaction of the court that the
      agency, school, or department had reasonable grounds for believing that
      the underlying act or omission was not a violation of this title, such
      court may, in the discretion of the court, reduce the amount of the
      liability provided for under section 107(a)(1)(A) to the amount and
      interest determined under clauses (i) and (ii), respectively, of such
      section.
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  • SEC. 109. NOTICE.
    • (a) IN GENERAL.–Each employer shall post and keep
      posted, in conspicuous places on the premises of the employer where
      notices to employees and applicants for employment are customarily
      posted, a notice, to be prepared or approved by the Secretary, setting
      forth excerpts from, or summaries of, the pertinent provisions of this
      title and information pertaining to the filing of a charge.
    • (b) PENALTY.–Any employer that willfully violates this
      section may be assessed a civil money penalty not to exceed $100 for each
      separate offense.

—————«»—————

 


TITLE II–LEAVE FOR CIVIL SERVICE EMPLOYEES

SEC. 201. LEAVE REQUIREMENT.

(a) CIVIL SERVICE EMPLOYEES.–

IN GENERAL.–Chapter 63 of title 5, United States Code, is amended by adding at the end the following new subchapter:

SUBCHAPTER V–FAMILY AND MEDICAL LEAVE

“6381. Definitions

For the purpose of this subchapter–

  1. “the term ’employee’ means any individual who–
    • ” is an ’employee’, as defined by section 6301(2), including
      any individual employed in a position referred to in clause (v)
      or (ix) of section 6301(2), but excluding any individual employed
      by the government of the District of Columbia and any individual
      employed on a temporary or intermittent basis; and
    • ” has completed at least 12 months of service as an
      employee (within the meaning of subparagraph (A));
  2. ” the term ‘health care provider’ means–
    • ” a doctor of medicine or osteopathy who is authorized
      to practice medicine or surgery (as appropriate) by the State
      in which the doctor practices; and
    • ” any other person determined by the Director of the
      Office of Personnel Management to be capable of providing health
      care services;
  3. ” the term ‘parent’ means the biological parent of an
    employee or an individual who stood in loco parentis to an employee
    when the employee was a son or daughter;
  4. ” the term ‘reduced leave schedule’ means a leave schedule
    that reduces the usual number of hours per workweek, or hours per
    workday, of an employee;
  5. ” the term ‘serious health condition’ means an illness,
    injury, impairment, or physical or mental condition that involves–

    • ” inpatient care in a hospital, hospice, or residential
      medical care facility; or
    • ” continuing treatment by a health care provider; and
  6. ” the term ‘son or daughter’ means a biological, adopted,
    or foster child, a stepchild, a legal ward, or a child of a person
    standing in loco parentis, who is–

    • ” under 18 years of age; or
    • ” 18 years of age or older and incapable of self-care
      because of a mental or physical disability.

“6382. Leave requirement

(a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following:

  • ” Because of the birth of a son or daughter of the employee
    and in order to care for such son or daughter.
  • ” Because of the placement of a son or daughter with
    the employee for adoption or foster care.
  • ” In order to care for the spouse, or a son, daughter,
    or parent, of the employee, if such spouse, son, daughter, or
    parent has a serious health condition.
  • ” Because of a serious health condition that makes the
    employee unable to perform the functions of the employee’s position.

“(2) The entitlement to leave under subparagraph (A) or (B) of paragraph (1) based on the birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.

“(b)(1) Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on
a reduced leave schedule unless the employee and the employing agency of the employee agree otherwise. Subject to paragraph (2),
subsection (e)(2), and section 6383(b)(5), leave under subparagraph
(C) or (D) of subsection (a)(1) may be taken intermittently or on a reduced leave schedule when medically necessary. In the case
of an employee who takes leave intermittently or on a reduced
leave schedule pursuant to this paragraph, any hours of leave
so taken by such employee shall be subtracted from the total amount
of leave remaining available to such employee under subsection
(a), for purposes of the 12-month period involved, on an hour-for-hour
basis.

“(2) If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of
subsection (a)(1); that is foreseeable based on planned medical treatment, the employing agency may require such employee to transfer
temporarily to an available alternative position offered by the employing agency for which the employee is qualified and that–

  • “has equivalent pay and benefits; and
  • ” better accommodates recurring periods of leave than
    the regular employment position of the employee.
  • ” Except as provided in subsection (d), leave granted
    under subsection (a) shall be leave without pay.
  • ” An employee may elect to substitute for leave under
    subparagraph (A), (B), (C), or (D) of subsection (a)(1) any of
    the employee’s accrued or accumulated annual or sick leave under
    subchapter I for any part of the 12-week period of leave under
    such subsection, except that nothing in this subchapter shall
    require an employing agency to provide paid sick leave in any
    situation in which such employing agency would not normally provide
    any such paid leave.
  • “(1) In any case in which the necessity for leave under
    subparagraph (A) or (B) of subsection (a)(1) is foreseeable based
    on an expected birth or placement, the employee shall provide
    the employing agency with not less than 30 days’ notice, before
    the date the leave is to begin, of the employee’s intention to
    take leave under such subparagraph, except that if the date of
    the birth or placement requires leave to begin in less than 30
    days, the employee shall provide such notice as is practicable.

“(2) In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) is foreseeable based
on planned medical treatment, the employee–

  • ” shall make a reasonable effort to schedule the treatment
    so as not to disrupt unduly the operations of the employing agency,
    subject to the approval of the health care provider of the employee
    or the health care provider of the son, daughter, spouse, or parent
    of the employee, as appropriate; and
  • ” shall provide the employing agency with not less than
    30 days’ notice, before the date the leave is to begin, of the
    employee’s intention to take leave under such subparagraph, except
    that if the date of the treatment requires leave to begin in less
    than 30 days, the employee shall provide such notice as is practicable.

“6383. Certification

“(a) An employing agency may require that a request for
leave under subparagraph (C) or (D) of section 6382(a)(1) be supported
by certification issued by the health care provider of the employee
or of the son, daughter, spouse, or parent of the employee, as
appropriate. The employee shall provide, in a timely manner, a
copy of such certification to the employing agency.

“(b) A certification provided under subsection (a) shall be sufficient if it states–

  1. ” the date on which the serious health condition commenced;
  2. ” the probable duration of the condition;
  3. ” the appropriate medical facts within the knowledge
    of the health care provider regarding the condition;
  4. “(A) for purposes of leave under section 6382(a)(1)(C),
    a statement that the employee is needed to care for the son, daughter,
    spouse, or parent, and an estimate of the amount of time that
    such employee is needed to care for such son, daughter, spouse,
    or parent; and
    “(B) for purposes of leave under section 6382(a)(1)(D),
    a statement that the employee is unable to perform the functions
    of the position of the employee; and
  5. ” in the case of certification for intermittent leave,
    or leave on a reduced leave schedule, for planned medical treatment,
    the dates on which such treatment is expected to be given and
    the duration of such treatment.

“(c)(1) In any case in which the employing agency has reason
to doubt the validity of the certification provided under subsection
(a) for leave under subparagraph (C) or (D) of section 6382(a)(1),
the employing agency may require, at the expense of the agency,
that the employee obtain the opinion of a second health care provider
designated or approved by the employing agency concerning any
information certified under subsection (b) for such leave.

“(2) Any health care provider designated or approved under
paragraph (1) shall not be employed on a regular basis by the
employing agency.

“(d)(1) In any case in which the second opinion described
in subsection (c) differs from the original certification provided
under subsection (a), the employing agency may require, at the
expense of the agency, that the employee obtain the opinion of
a third health care provider designated or approved jointly by
the employing agency and the employee concerning the information
certified under subsection (b).

“(2) The opinion of the third health care provider concerning
the information certified under subsection (b) shall be considered
to be final and shall be binding on the employing agency and the
employee.

“(e) The employing agency may require, at the expense of the agency, that the employee obtain subsequent recertifications on a reasonable basis.

“6384. Employment and benefits protection

” Any employee who takes leave under section 6382 for the intended purpose of the leave shall be entitled, upon return
from such leave–

  1. ” to be restored by the employing agency to the position
    held by the employee when the leave commenced; or
  2. ” to be restored to an equivalent position with equivalent
    benefits, pay, status, and other terms and conditions of employment.

” The taking of leave under section 6382 shall not result
in the loss of any employment benefit accrued prior to the date
on which the leave commenced.

” Except as otherwise provided by or under law, nothing in this section shall be construed to entitle any restored employee to–

  1. ” the accrual of any employment benefits during any
    period of leave; or
  2. ” any right, benefit, or position of employment other
    than any right, benefit, or position to which the employee would
    have been entitled had the employee not taken the leave.

” As a condition to restoration under subsection (a)
for an employee who takes leave under section 6382(a)(1)(D), the
employing agency may have a uniformly applied practice or policy
that requires each such employee to receive certification from
the health care provider of the employee that the employee is
able to resume work.

” Nothing in this section shall be construed to prohibit
an employing agency from requiring an employee on leave under
section 6382 to report periodically to the employing agency on
the status and intention of the employee to return to work.

“6385. Prohibition of coercion

“(a) An employee shall not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce,
any other employee for the purpose of interfering with the exercise
of any rights which such other employee may have under this subchapter.

“(b) For the purpose of this section–

  1. ” the term “intimidate, threaten, or coerce’ includes
    promising to confer or conferring any benefit (such as appointment,
    promotion, or compensation), or taking or threatening to take
    any reprisal (such as deprivation of appointment, promotion, or
    compensation); and
  2. ” the term ’employee’ means any ’employee’, as defined
    by section 2105.

“6386. Health insurance

“An employee enrolled in a health benefits plan under chapter
89 who is placed in a leave status under section 6382 may elect
to continue the health benefits enrollment of the employee while
in such leave status and arrange to pay currently into the Employees
Health Benefits Fund (described in section 8909), the appropriate
employee contributions.

“6387. Regulations

“The Office of Personnel Management shall prescribe regulations
necessary for the administration of this subchapter. The regulations
prescribed under this subchapter shall, to the extent appropriate,
be consistent with the regulations prescribed by the Secretary
of Labor to carry out title I of the Family and Medical Leave
Act of 1993.”.

TABLE OF CONTENTS.–The table of contents for chapter 63 of title 5, United States Code, is amended by adding at the end the following:

  • “SUBCHAPTER V–FAMILY AND MEDICAL LEAVE
  • “6381. Definitions.
  • “6382. Leave requirement.
  • “6383. Certification.
  • “6384. Employment and benefits protection.
  • “6385. Prohibition of coercion.
  • “6386. Health insurance.
  • “6387. Regulations.”.

EMPLOYEES PAID FROM NONAPPROPRIATED FUNDS.–Section 2105(c)(1) of title 5, United States Code, is amended–

  1. by striking “or” at the end of subparagraph (C);
    and
  2. by adding at the end the following new subparagraph:

“(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable
programs for employees paid from nonappropriated funds; or”.


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TITLE III–COMMISSION ON LEAVE

SEC. 301. ESTABLISHMENT.

There is established a commission to be known as the Commission on Leave (referred to in this title as the “Commission”).

SEC. 302. DUTIES.

The Commission shall–

  1. conduct a comprehensive study of–
    • existing and proposed mandatory and voluntary policies relating
      to family and temporary medical leave, including policies provided
      by employers not covered under this Act;
    • the potential costs, benefits, and impact on productivity,
      job creation and business growth of such policies on employers and
      employees;
    • possible differences in costs, benefits, and impact on productivity,
      job creation and business growth of such policies on employers based
      on business type and size;
    • the impact of family and medical leave policies on the availability
      of employee benefits provided by employers, including employers
      not covered under this Act;
    • alternate and equivalent State enforcement of title I with
      respect to employees described in section 108(a);
    • methods used by employers to reduce administrative costs of
      implementing family and medical leave policies;
    • the ability of the employers to recover, under section 104(c)(2),
      the premiums described in such section; and
    • the impact on employers and employees of policies that provide
      temporary wage replacement during periods of family and medical
      leave.
  2. not later than 2 years after the date on which the Commission
    first meets, prepare and submit, to the appropriate Committees of
    Congress, a report concerning the subjects listed in paragraph (1).


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SEC. 303. MEMBERSHIP.

COMPOSITION.–

APPOINTMENTS.–The Commission shall be composed of 12 voting members and 4 ex officio members to be appointed not later than 60 days after the date of the enactment of this Act as follows:

SENATORS.–One Senator shall be appointed by the Majority Leader of the Senate, and one Senator shall be appointed by the Minority

Leader of the Senate.

MEMBERS OF HOUSE OF REPRESENTATIVES.–One Member of the House
of Representatives shall be appointed by the Speaker of the House
of Representatives, and one Member of the House of Representatives
shall be appointed by the Minority Leader of the House of Representatives.

ADDITIONAL MEMBERS.–

  • APPOINTMENT.–Two members each shall be appointed by
    • the Speaker of the House of Representatives;
    • the Majority Leader of the Senate;
    • the Minority Leader of the House of Representatives;
      and
    • the Minority Leader of the Senate.
  • EXPERTISE.–Such members shall be appointed by virtue of
    demonstrated expertise in relevant family, temporary disability,
    and labor management issues. Such members shall include representatives
    of employers, including employers from large businesses and from
    small businesses.

EX OFFICIO MEMBERS.–The Secretary of Health and Human Services,
the Secretary of Labor, the Secretary of Commerce, and the Administrator
of the Small Business Administration shall serve on the Commission
as nonvoting ex officio members.

VACANCIES.–Any vacancy on the Commission shall be filled in
the manner in which the original appointment was made. The vacancy
shall not affect the power of the remaining members to execute the
duties of the Commission.

CHAIRPERSON AND VICE CHAIRPERSON.–The Commission shall elect
a chairperson and a vice chairperson from among the members of the
Commission.

QUORUM.–Eight members of the Commission shall constitute a
quorum for all purposes, except that a lesser number may constitute
a quorum for the purpose of holding hearings.


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SEC. 304. COMPENSATION.

  • PAY.–Members of the Commission shall serve without compensation.
  • TRAVEL EXPENSES.–Members of the Commission shall be allowed
    reasonable travel expenses, including a per diem allowance, in accordance
    with section 5703 of title 5, United States Code, when performing
    duties of the Commission.


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SEC. 305. POWERS.

  • MEETINGS.–The Commission shall first meet not later than 30
    days after the date on which all members are appointed, and the Commission
    shall meet thereafter on the call of the chairperson or a majority
    of the members.
  • HEARINGS AND SESSIONS.–The Commission may hold such hearings,
    sit and act at such times and places, take such testimony, and receive
    such evidence as the Commission considers appropriate. The Commission
    may administer oaths or affirmations to witnesses appearing before
    it.
  • ACCESS TO INFORMATION.–The Commission may secure directly from
    any Federal agency information necessary to enable it to carry out
    this title, if the information may be disclosed under section 552
    of title 5, United States Code. Subject to the previous sentence,
    on the request of the chairperson or vice chairperson of the Commission,
    the head of such agency shall furnish such information to the Commission.
  • USE OF FACILITIES AND SERVICES.–Upon the request of the Commission,
    the head of any Federal agency may make available to the Commission
    any of the facilities and services of such agency.
  • PERSONNEL FROM OTHER AGENCIES.–On the request of the Commission,
    the head of any Federal agency may detail any of the personnel of
    such agency to serve as an Executive Director of the Commission or
    assist the Commission in carrying out the duties of the Commission.
    Any detail shall not interrupt or otherwise affect the civil service
    status or privileges of the Federal employee.
  • VOLUNTARY SERVICE.–Notwithstanding section 1342 of title 31,
    United States Code, the chairperson of the Commission may accept for
    the Commission voluntary services provided by a member of the Commission.


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SEC. 306. TERMINATION.

  • The Commission shall terminate 30 days after the date of the submission
    of the report of the Commission to Congress.


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TITLE IV–MISCELLANEOUS PROVISIONS

SEC. 401. EFFECT ON OTHER LAWS.

  • FEDERAL
    AND STATE ANTIDISCRIMINATION LAWS
    .–Nothing in this Act or any amendment
    made by this Act shall be construed to modify or affect any Federal
    or State law prohibiting discrimination on the basis of race, religion,
    color, national origin, sex, age, or disability.
  • STATE
    AND LOCAL LAWS
    .–Nothing in this Act or any amendment made by this
    Act shall be construed to supersede any provision of any State or local
    law that provides greater family or medical leave rights than the rights
    established under this Act or any amendment made by this Act.


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SEC. 402. EFFECT ON EXISTING EMPLOYMENT BENEFITS.

  • MORE PROTECTIVE.–Nothing in this Act or any amendment made by
    this Act shall be construed to diminish the obligation of an employer
    to comply with any collective bargaining agreement or any employment
    benefit program or plan that provides greater family or medical leave
    rights to employees than the rights established under this Act or any
    amendment made by this Act.
  • LESS PROTECTIVE.–The rights established for employees under this
    Act or any amendment made by this Act shall not be diminished by any
    collective bargaining agreement or any employment benefit program or
    plan.


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SEC. 403. ENCOURAGEMENT OF MORE GENEROUS LEAVE POLICIES.

Nothing in this Act or any amendment made by this Act shall be construed
to discourage employers from adopting or retaining leave policies more
generous than any policies that comply with the requirements under this
Act or any amendment made by this Act.


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SEC. 404. REGULATIONS.

The Secretary of Labor shall prescribe such regulations as are necessary
to carry out title I and this title not later than 120 days after the
date of the enactment of this Act.


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SEC. 405. EFFECTIVE DATES.

TITLE III.–Title III shall take effect on the date of the enactment of this Act.

OTHER TITLES.–

  1. IN GENERAL.–Except as provided in paragraph (2), titles I, II,
    and V and this title shall take effect 6 months after the date of the
    enactment of this Act.
  2. COLLECTIVE BARGAINING AGREEMENTS.–In the case of a collective
    bargaining agreement in effect on the effective date prescribed by paragraph
    (1), title I shall apply on the earlier of

    • the date of the termination of such agreement; or
    • the date that occurs 12 months after the date of the enactment
      of this Act.


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TITLE V–COVERAGE OF CONGRESSIONAL EMPLOYEES

SEC. 501. LEAVE FOR CERTAIN SENATE EMPLOYEES.

COVERAGE.–The rights and protections established under sections
101 through 105 shall apply with respect to a Senate employee and an
employing office. For purposes of such application, the term “eligible
employee” means a Senate employee and the term “employer”
means an employing office.

CONSIDERATION OF ALLEGATIONS.

  1. APPLICABLE PROVISIONS.–The provisions of sections 304 through
    313 of the Government Employee Rights Act of 1991 (2 U.S.C. 1204-1213)
    shall, except as provided in subsections (d) and (e)–

    • apply with respect to an allegation of a violation of a provision
      of sections 101 through 105, with respect to Senate employment of
      a Senate employee; and
    • apply to such an allegation in the same manner and to the
      same extent as such sections of the Government Employee Rights Act
      of 1991 apply with respect to an allegation of a violation under
      such Act.
  2. ENTITY.–Such an allegation shall be addressed by the Office
    of Senate Fair Employment Practices or such other entity as the Senate
    may designate.

RIGHTS OF EMPLOYEES.–The Office of Senate Fair Employment Practices
shall ensure that Senate employees are informed of their rights under
sections 101 through 105.

LIMITATIONS.–A request for counseling under section 305 of such
Act by a Senate employee alleging a violation of a provision of sections
101 through 105 shall be made not later than 2 years after the date
of the last event constituting the alleged violation for which the counseling
is requested, or not later than 3 years after such date in the case
of a willful violation of section 105.

APPLICABLE REMEDIES.–The remedies applicable to individuals who
demonstrate a violation of a provision of sections 101 through 105 shall
be such remedies as would be appropriate if awarded under paragraph
(1) or (3) of section 107(a).

EXERCISE OF RULEMAKING POWER.–The provisions of subsections (b),
(c), (d), and (e), except as such subsections apply with respect to
section 309 of the Government Employee Rights Act of 1991 (2 U.S.C.
1209), are enacted by the Senate as an exercise of the rulemaking power
of the Senate, with full recognition of the right of the Senate to change
its rules, in the same manner, and to the same extent, as in the case
of any other rule of the Senate. No Senate employee may commence a judicial
proceeding with respect to an allegation described in subsection (b)(1),
except as provided in this section.

SEVERABILITY.–Notwithstanding any other provision of law, if
any provision of section 309 of the Government Employee Rights Act of
1991 (2 U.S.C. 1209), or of subsection (b)(1) insofar as it applies
such section 309 to an allegation described in subsection (b)(1)(A),
is invalidated, both such section 309, and subsection (b)(1) insofar
as it applies such section 309 to such an allegation, shall have no
force and effect, and shall be considered to be invalidated for purposes
of section 322 of such Act (2 U.S.C. 1221).

DEFINITIONS.–As used in this section:

  1. EMPLOYING OFFICE.–The term “employing office” means
    the office with the final authority described in section 301(2) of
    such Act (2 U.S.C. 1201(2)).
  2. SENATE EMPLOYEE.–The term “Senate employee” means
    an employee described in subparagraph (A) or (B) of section 301(c)(1)
    of such Act (2 U.S.C. 1201(c)(1)) who has been employed for at least
    12 months on other than a temporary or intermittent basis by any employing
    office.


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SEC. 502. LEAVE FOR CERTAIN HOUSE EMPLOYEES.

  • IN GENERAL.–The rights and protections under sections 102 through
    105 (other than section 104(b)) shall apply to any employee in an employment
    position and any employing authority of the House of Representatives.
  • ADMINISTRATION.–In the administration of this section, the remedies
    and procedures under the Fair Employment Practices Resolution shall
    be applied.
  • DEFINITION.–As used in this section, the term “Fair Employment
    Practices Resolution” means rule LI of the Rules of the House of
    Representatives.


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TITLE VI–SENSE OF CONGRESS

SEC. 601. SENSE OF CONGRESS.

  • It is the sense of the Congress that:
    • The Secretary of Defense shall conduct a comprehensive review
      of current departmental policy with respect to the service of homosexuals
      in the Armed Forces;
    • Such review shall include the basis for the current policy of
      mandatory separation; the rights of all service men and women, and
      the effects of any change in such policy on morale, discipline, and
      military effectiveness;
    • The Secretary shall report the results of such review and consultations
      and his recommendations to the President and to the Congress no later
      than July 15, 1993;
    • The Senate Committee on Armed Services shall conduct (i) comprehensive
      hearings on the current military policy with respect to the service
      of homosexuals in the military services; and (ii) shall conduct oversight
      hearings on the Secretary’s recommendations as such are reported.

Approved February 5, 1993.

LEGISLATIVE HISTORY–H.R. 1(S. 5):

HOUSE REPORTS: No. 103-8, Pt. 1 (Comm. on Education and Labor) and
Pt. 2 (Comm. on Post Office and Civil Service).

SENATE REPORTS: No. 103-3 accompanying S. 5 (Comm. on Labor and Human
Resources).

CONGRESSIONAL RECORD, Vol. 139 (1993):

  • Feb. 2, S. 5 considered in Senate.
  • Feb. 3, considered in Senate; H.R. 1 considered and passed House.
  • Feb. 4, H.R. 1 considered and passed Senate, amended, in lieu of
    S. 5. House concurred in Senate amendment.
  • WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 29 (1993):
  • Feb. 5, Presidential remarks and statement.

—————«»—————

 


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