Table Of Content

'"^dSr HOUSE OF REPRESENTAIWES 1 [ FAMILY AND MEDICAL LEAVE ACT OF 1992 — August 10, 1992. Ordered tobeprinted Mr. Clay, from the committee ofconference, submitted the following CONFERENCE REPORT [To accompany S. 5] The committee of conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S. 5) to grant employees family and temporary medical leave under certain circumstances, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: That the Senate recede from its disagreement to the amendment of the House and agree to the same with an amendment as follows: In lieu of the matter proposed to be inserted by the House amendment, insert the following: SECTION1. SHORTTIT—LE; TABLEOFCONTENTS. (a) Short Title. This Act may be cited as the "Family and Medical Leave Act of1992"—. (h) Table of Contents. Sec. L Short title; tableofcontents. Sec. 2. Findingsandpurposes. TITLEI—GENERALREQUIREMENTSFORLEAVE Sec. 101. Definitions. Sec. 102. Leave requirement. Sec. 103. Certification. Sec. 104. Employmentand benefitsprotection. Sec. 105. Prohibitedacts. Sec. 106. Investigativeauthority. Sec. 107. Enforcement. Sec. 108. Specialrulesconcerningemployeesoflocaleducationalagencies. Sec. 109. Notice. Sec. 110. Regulations. TITLEII—LEAVEFOR CIVILSERVICEEMPLOYEES Sec. 201. Leaverequirement. 59-006 TITLEIII—COMMISSIONONLEAVE Sec. SOL Establishment. Sec. 302. Duties. Sec. SOS. Membership. Sec. SO4. Compensation. Sec. SOS. Powers. Sec. SOS. Termination. TITLEIV—MISCELLANEOUSPROVISIONS Sec. 4OL Effectonotherlaws. Sec. 402. Effectonexistingemployment benefits. Sec. iOS. Encouragementofmoregenerous leavepolicies. Sec. 404' Regulations. Sec. 405. Effectivedates. TITLE V—COVERAGEOFCONGRESSIONALEMPLOYEES Sec. 501. LeaveforcertainSenateemployees. Sec. 502. Leaveforcertaincongressionalemployees. SEC. 2. FINDINGS—ANDPURPOSES. — (a)Findings. Congress finds that (V the number of single-parent households and two-parent households in which the single parent or both parents work is increasingsignificantly; (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 offamily members who have serious health conditions; (3) the lack of employment policies to accommodate working parents can force individuals to choose betweenjob security and parenting; (4) there is inadequatejob security for employees who have serious health conditions that prevent them from working for temporaryperiods; (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 thatgender.— — (b)Purposes. It is thepurpose ofthis Act (V to balance the demands ofthe workplace with the needs of families, topromote the stability and economic security offami- lies, and to promote national interests in preserving family in- tegrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption ofa 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 ofemployers; (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 3 for employment discrimination on the basis ofsex 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. As used in this title—: (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 ofcommerce, and include "commerce" and any "industry affecting commerce", as defined in paragraphs (3) and (1), respectively, of section 120 of the Labor Management Relations Act, 19^7 (29 U.S.C. U2 (3) and (1)1 (2)Eligible employe—e.— (A) In general. The term "eligible employee" means any "employee", as defined in section 3(e) ofthe Fair Labor Standa—rds Act of1938 (29 U.S.C. 203(e)), who has been employed (i) for at least 12 months by the employer with re- spect to whom leave is requested under section 102; and (ii) for at least 1,250 hours ofservice with such employer during —theprevious 12-monthperiod. (B) Ex—clusions. The term "eligible employee" does not include (i) any Federal officer or employee covered under sub- chapter V of chapter 63 of title 5, United States Code (as added by title IIofthis Act); or (ii) any employee ofan employer who is employed at a worksite at which such employer employs less than 50 employees ifthe total number ofemployees 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 ofservice 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. (3) Employ; state.—The terms "employ" and "State" have the same meanings given such terms in subsections (g) and (c), respectively, of section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C 2—03 (g) and (c)). (4) Employee. The term "employee" means any individual employed by an e—mployer. (5)Employer. (A)In general.—The term "employer"— 4 (i) means anyperson 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 pre- cedingcalenda—ryear; (ii) includes (I) anyperson who acts, directly or indirectly, in the interest ofan employer to any ofthe employees ofsuch employer; and (II) any successor in interest ofan employer; and (Hi) 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. — (6) 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 ofan 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)). — (7) Heal—th care provider. The term "health care provider" means (A) a doctor ofmedicine or osteopathy who is authorized topractice medicine or surgery (as appropriate) by the State in which the doctorpractices; or (B) any otherperson determined by the Secretary to be ca- pable ofpr—oviding health care services. (8) Parent. The term "parent" means the biological parent of an employee or an individual who stood in loco parentis to an employee w—hen the employee was a son ordaughter. (9) Person. The term "person" has the same meaninggiven such term in section 3(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(a)). — (10) Reduced leave schedule. The term "reduced leave schedule" means leave that reduces the usual number ofhours per workweek, or h—oursper workday, ofan employee. (11) Secretary. The term "Secretary" means the Secretary ofLabor. — (12) Serious health condition. The term "serious health condition" means an illness, in—jury, impairment, orphysical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical carefacility; or (B) continuing trea—tment by a health careprovider. (13) Son or daughter. The term "son or daughter"means a biological, adopted, orfoster child, a stepchild, a le—gal ward, or a child ofaperson standing in locoparentis, who is (A) under 18years ofage; or 5 (B) 18 years ofage or older and incapable ofself-care because ofa mental orphysical disability. SEC. 102. LEAVEREQ—UIREMENT. (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 ofthe following: (A) Because of the birth ofa son or daughter of the employee and in order to care forsuch son or daughter. (B) Because of the placement of a son or daughter with the employee for adoption orfoster 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 ofa serious health condition that makes the employee unable to perform the functions of the position of such employee. — (2) Expiration of entitlement. The entitlement to leave under subparagraphs (A) and (B) ofparagraph (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 ofsuch birth or placement. — (3)Intermittentlea—ve. (A)In general. Leave under subparagraph (A) or (B) of paragraph (1) shall not be taken by an employee intermittently unless the employee and the employer ofthe employee agree otherwise. Subject to subparagraph (B), subsection (e), and section 103(b)(5), leave undersubparagraph (C) or (D) of paragraph (1) may be taken intermittently when medically necessary. — (B) Alternative position. If an employee requests intermittent leave under subparagraph (C) or (D) ofparagraph (1) that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternativeposition of- fered by—the employer for which the employee is qualified and that (i) has equivalentpay and benefits; and (ii) better accommodates recurring periods of leave than the —regular employment position of the employee. (b)Reduced Leave. On agreement between the employer and the employee, leave under subsection (a) may be taken on a reduced leave schedule. Such reduced leave schedule shall not result in a re- duction in the total amount of leave to which the employee is entitled undersubsection (a). — (c) Unpaid Leave Permitted. Except as provided in subsection (d), leave granted under subsection (a) may consist of unpaid leave. (d)Relationship to Pa—id 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 beprovided without compensation. 6 — (2) Substitution ofp—aid leave. (A) In general. An eligible employee may elect, or an employer^ may require the employee, to substitute any ofthe accruedpaid vacation leave, personal leave, or family leave ofthe employee for leaveprovided under subparagraph (A), (B), or (C) of subsection (a)(1) for any part of the 12-week period ofsuch leave undersuch 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 ofthe employee for leaveprovided under subparagraph (C) or (D) ofsubsection (a)(1) for any part of the 12-week period of such leave under such subsection, except that nothing in this Act shall require an employer toprovidepaid sick leave orpaid medical leave in any situation in which such employer would not normally provide any suchp—aid leave. (e)Foreseeable Leave. — (1) Requirement of notice. In any case in which the necessity for leave under subparagraph (A) or (B) ofsubsection (a)(1) is foreseeable based on an expected birth or adoption, the employee shall provide the employer with not less than SO 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 adoption requires leave to begin in less than 30 days, the employee shallprovide such notice as ispracticable. — (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 onplanned 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 ofthe health careprovider of the employee or the health careprovider ofthe son, daughter, spouse, orparent ofthe employee; and (B) shallprovide the employer with not less than SO 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 SO days, the employee shallprovide such notice as ispracticable. — Spouses Employed by the Same Employer. In any case in (f) which a husband and wife entitled to leave under subsection (a) are employed by the same employer, the aggregate number ofworkweeks of leave to which both may be entitled may be limited —to 12 workweeks during any 12-monthperiod, ifsuch leave is taken (1) undersubparagraph (A) or (B) ofsubsection (a)(1); or (2) to care for a sick parent under subparagraph (C) ofsuch subsection. SEC. 103. CERTIFICATI—ON. (a) In General. An employer may require that a request for leave under subparagraph (C) or (D) ofsection 102(a)(1) be supported by a certification issued by the health care provider of the eligible 7 employee or of the son, daughter, spouse, orparent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy ofsuch certification to the e—mployer. (b) Sufficient Certification. Certi—fication provided under subsection (a)shall be sufficient ifit states (V the date on which the serious health condition commenced; (2) theprobable duration ofthe condition; (3) the appropriate medical facts within the knowledge of the health careprovider regarding the condition; (4)(A) forpurposes of leave under section 102(a)(1)(C), a state- ment 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, orparent; and (B) for purposes of leave under section 102(a)(1)(D), a state- ment that the employee is unable to perform the functions of theposition ofthe employee; and (5) in the case of certification for intermittent leave for planned medical treatment, the dates on which such treatment is expected to begi—ven and the duration ofsuch treatment. (c) Second Opinion. — (1) In general. In any ccLse in which the employer has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) ofsection 102(a)(1), the employer may require, at the expense of the employer, that the eligible employee obtain the opinion ofa 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 underparagraph (1) shall not be employed on a regular basis by the employer. — (d)Resolution of C—onflicting Opinions. (1) In general. In any case in which the second opinion described in subsection (c) differs from the opinion in the original certificationprovided 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 ap- provedjointly by the employer and the employee concerning the information cer—tified undersubsection (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. SEC. 104. EMPLOYMENTANDBENEFI—TSPROTECTION, (a)Restoration to—Position. (1)In general. Any eligible employee who takes leave under section 102 for the intended pu—rpose of the leave shall be entitled, on return from such leave 8 (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 ofemployment. (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 t—his section shall be construed to entitle any restored employee to (A) the accrual of any seniority or employment benefits during anyperiod ofleave; 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 ofrestoration underparagraph (1), the employer may have a uniformly applied practice or policy that requires each employee to receive certification from the health careprovider ofthe 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 bar- gaining agreement that governs the return to work ofemployees taking leave underse—ction 102(a)(1)(D). (5) Construction. Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave under section 102 to reportperiodically to the employer on the status and intention ofthe employee to return to work. (b) Exe—mption Concerning Certain Highly Compensated Em- ployees. (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 ofthe intent ofthe 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 o—fHealthBenefits. (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 pro- 9 vided ifthe employee had continued in employment continuous- ly from the date the employee commenced the leave until the date the employee is restored undersubse—ction (a). (2) Failure to return from leave. The employer may re- cover thepremium that the employerpaid for maintaining coverage for the employee under such group health plan during anyperiod ofunpaid leave undersection 102 if— (A) the employee fails to return from leave under section 102 after theperiod 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 ofa serious health condition that entitles the employee to leave undersubparagraph (C) or (D) ofsection 102(a)(1); or (ii) other circumstances beyond the control ofthe employee. — (S) Certification.— (A) Issuance. An employer may require that a claim that an employee is unable to return to work because ofthe continuation, recurrence, or onset of the serious healt—h condition described inparagraph (2)(B)(i) be supported by (i) 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(aXl)(D); or (ii) a certification issued by the health care provider of the son, daughter, spouse, orparent of the employee in the case ofan employee unable to return to work because of—a condition specified in section 102(a)(1)(C). (B) Copy. The employee shall provide, in a timely manner, a copy ofsuch certification t—o the employer. (C)Sufficiency of certification. (i) Lea—ve due to serious health condition of employee. The certification described in subparagraph (AXi) 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 ofthe employee expired. (ii) Leave due—to serious health condition of FAMILY MEMBER. The Certification described in subparagraph (A)(ii) 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 ofthe employee expired. SEC. 105. PROHIBITEDACTS. — (a)Interference WithRight—s. (1) Exercise of rights. It shall be unlawful for any employer to interfere with, restrain, or deny the exercise ofor the attempt to exercise, any rightprovided under this title. 10 — (2) Discrimination. It shall he unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title. — (h) Interference With Proceedings or Inquiries. It shall be unlawful for any person to discharge or in any other ma—nner discriminate against any individual because such individual (V has filed any charge, or has instituted or caused to be instituted anyproceeding, under or related to this title; (2) has given, or is about to give, any information in connec- ^ tion 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 rightprovided under this title. SEC. 106. INVESTIGATI—VEAUTHORITY. (a) In General. To ensure compliance with the provisions of this title, or any regulation or order issued under this title, the Sec- retary shall have, subject to subsection (c), the investigative author- ityprovided under section 11(a) ofthe Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)). (b) Obligation To Keep and Preserve Records.—Any employer shall keep and preserve records in accordance with section 11(c) of the Fair Labor Standards Act of1938 (29 U.S.C. 211(c)) and in accordance with regulations issued by the Secretary. (c) R—equired Submissions Generally Limited to an Annual Basis. The Secretary shall not under the authority of this section require any employer or anyplan, fund, orprogram 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 thepurposes ofany investigationpro- vided for in this section, the Secretary shall have the subpoena authority provided for under section 9 of the Fair Labor Standards Act of1938 (29 U.S.C. 209). sec. 107. ENFORCEMENT. — (a) Civil Actionb—yEmployees. (1) Liability. Any employer who viol—ates section 105 shall be liable to any eligible employe—e 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 ofthe 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 mone- tary losses sustained by the employee as a direct result of the violation, such as the cost ofprovid- ing care, up to a sum equal to 12 weeks ofwages or salaryfor the employee;