The Family and Medical Leave Act of 1993

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The Family and Medical Leave Act of 1993

Legislation

Date: February 5, 2003

Source: United States Department of Labor. "The Family and Medical Leave Act of 1993." <http://www.dol.gov/esa/regs/statutes/whd/fmla.htm> (accessed May 31, 2006).

About the Author: The Congress of the United States was established by Article 1 of the United States Constitution of 1787. It is the legislative arm of the U.S. Federal Government.

INTRODUCTION

American workers today enjoy a wide range of rights and protections. Many of these rights, largely taken for granted, came into existence during the 1960's. For example, prior to 1963, employers could legally pay a woman lower wages for performing the same work as a man, and employers frequently chose to do this. Following the passage of the Equal Pay Act in June of that year, employers could no longer legally discriminate in compensation practices on the basis of gender.

Other legislation during this period and in the following decades banned other forms of discrimination. The Civil Rights Act of 1964 dealt with a variety of issues; Title VII specifically addressed discrimination in employment practices, prohibiting discrimination in hiring or other work-related practices on the basis of race, religion, sex, or national origin. While few employers today would consider openly discriminating against an applicant based on one of these traits, this practice was both common and legal prior to 1964. These and other pieces of legislation passed during the 1960's laid the groundwork for labor laws and the rights enjoyed by employees today.

Building on this foundation, additional legislation in the following decades expanded worker protections in a variety of situations, including old age and pregnancy. For example, the Americans with Disabilities Act (ADA) was enacted in 1990. ADA requires employers to make reasonable accommodations for workers, such as providing a larger computer monitor for a visually impaired employee. It also requires new public construction to include accessibility for individuals in wheelchairs. The law's goal is to expand work-place opportunities for persons with disabilities.

Many of the work-related laws passed since the 1960's dealt with specific groups of individuals, including the elderly, minorities, and the physically disabled. One of the broadest pieces of employment legislation was passed in 1993, and potentially applies to every employee in America. The Family and Medical Leave Act (FMLA) was created to help employees address pressing family issues without endangering their employment.

FMLA allows an employee to take up to twelve weeks of unpaid leave during any twelve month period without losing his job. Employers are required to grant this request and continue providing group health benefits if offered. Following the leave, the employee is entitled to an equivalent position with pay and benefits equal to the job previously held. FMLA allows leave for family-related health issues, including the birth or adoption of a child, a family member's illness, or personal health problems. In cases where an employer offers benefits, such as maternity leave, workers are allowed to take their FMLA leave in addition to the employer provided leave.

PRIMARY SOURCE

SEC. 2. FINDINGS AND PURPOSES.

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.
PURPOSES.—It is the purpose of this Act—
1. to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;
2. to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;
3. to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers;
4. to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and
5. to promote the goal of equal employment opportunity for women and men, pursuant to such clause.

TITLE I—GENERAL REQUIREMENTS FOR LEAVE

SEC. 101. DEFINITIONS.

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)).
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.
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)).
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 subpara-graph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.
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)).
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.
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.
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)).
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.
SECRETARY.—The term "Secretary" means the Secretary of Labor.
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.
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.
SPOUSE.—The term "spouse" means a husband or wife, as the case may be.

SEC. 102. LEAVE REQUIREMENT.

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:
2. (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
3. (B) Because of the placement of a son or daughter with the employee for adoption or foster care.
4. (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.
5. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
6. 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.
(b)LEAVE TAKEN INTERMITTENTLY OR ON A REDUCED LEAVE SCHEDULE.
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 section 103(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. 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.
ALTERNATIVE POSITION.—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 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—
1. has equivalent pay and benefits; and
2. better accommodates recurring periods of leave than the regular employment position of the employee.
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.
RELATIONSHIP TO PAID LEAVE.—
1. UNPAID LEAVE.—If an employer provides paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required under this title may be provided without compensation.
2. SUBSTITUTION OF PAID LEAVE.—
3. (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), or (C) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.
4. (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 sub-paragraph (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.
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 sub-paragraph, 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) is foreseeable based on planned medical treatment, the employee—
3. (A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
4. (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.
SPOUSES EMPLOYED BY THE SAME EMPLOYER.—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—
under subparagraph (A) or (B) of subsection (a)(1); or
to care for a sick parent under subparagraph (C) of such subsection.

SIGNIFICANCE

As two-income families and single parent homes have become more common, family issues have taken an increasingly central role in quality-of-life discussions. Americans are also marrying later and waiting longer to have children, meaning that more mid-career employees face difficult choices about balancing work and home life. The Family and Medical Leave Act is an attempt to recognize the importance of home life and to honor personal needs such as caring for a dying family member. It attempts to provide options to employees facing difficult situations.

Like all federal legislation, FMLA is in a constant state of re-examination and revision. In some cases, employees have alleged noncompliance by their employers and taken them to court. The U.S. Department of Labor reports that the average cost to defend an FMLA lawsuit is more than $75,000, and employees denied leave have been awarded as much as $19 million in damages. Courts have also penalized individual supervisors up to $500,000 for their actions at work. However, some employee suits have been unsuccessful when courts found that they did not give the required thirty days notice prior to taking leave. Disputes have also arisen over what constitutes a serious medical condition and whether a combination of minor conditions might constitute a single serious one under FMLA's provisions.

The future of FMLA appears bright. Court rulings have repeatedly supported worker rights under FMLA, and some organizations lobby for expanded protections under the bill, including extending its coverage to smaller businesses and including more situations under its definitions of a family emergency. A Department of Labor report issued in 2000 found that a large majority of employers supported the FMLA and that it had no impact on workplace productivity. This finding was despite the fact that thirty-five million American workers took leave under the act in its first seven years of existence. In contrast, approximately this same number of employees remain uncovered by the act's provisions.

FURTHER RESOURCES

Books

Bernstein, Anya. The Moderation Dilemma: Legislative Coalitions and the Politics of Family and Medical Leave. Pittsburgh, Penn.: University of Pittsburgh Press, 2001.

Decker, Kurt H. Family and Medical Leave in a Nutshell. St. Paul, Minn.: West Publishing, 2000.

Family and Medical Leave Act, edited by Robert M. Hale, Michael J. Ossip, and Gail V. Coleman. Washington, D.C.: BNA Books, 2006.

Periodicals

Armour, Stephanie. "Family, Medical Leave Act at Center of Hot Debate." USA Today (May 26, 2005): b1.

Gaspers, Karen. "FMLA Use on the Rise: Costs Employers $21 Billion." Safety & Health 171 (2005): 14–16.

Make, Jonathan. "Push to Revamp FMLA Is in Limbo." Workforce Management 84 (2005): 24.

Web sites

United States Department of Labor. "Compliance Assistance— Family and Medical Leave Act (FMLA)." <http://www. dol.gov/esa/whd/fmla/> (accessed Maty 24, 2006).

The U.S. Equal Employment Opportunity Commission. "Title VII of the Civil Rights Act of 1964." <http://www.eeoc. gov/policy/vii.html> (accessed May 31, 2006).

Social Policy: Essential Primary Sources