I 

108TH CONGRESS 

1ST SESSION H. R. 35

To amend the Family and Medical Leave Act of 1993 to clarify the Act, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 7, 2003

Mrs. BIGGERT introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committees on House Administration and Government Reform, for a period to 

be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL

To amend the Family and Medical Leave Act of 1993 to 

clarify the Act, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Family and Medical 

5 Leave Clarification Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 
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1 (1) The Family and Medical Leave Act of 1993 

2 (hereinafter referred to as the ‘‘Act’’) is not working 

3 as the Congress intended when it passed the Act in 

4 1993. Many employers, including those employers 

5 that are nationally recognized as having generous 

6 family-friendly benefit and leave programs, are expe7 riencing serious problems complying with the Act. 

8 (2) The Secretary of Labor’s overly broad regu9 lations and interpretations have caused many of 

10 these problems by greatly expanding the Act’s cov11 erage to apply to many nonserious health conditions. 

12 (3) Between 1996 and 2002, six congressional 

13 hearings—two in the Senate and four in the House 

14 of Representatives—documented numerous imple15 mentation problems with the Act due to the Depart16 ment of Labor’s misapplication of the Act through 

17 some of its regulations and interpretations. 

18 (4) Documented problems generated by the Act 

19 include significant new administrative and personnel 

20 costs, loss of productivity, scheduling difficulties, un21 necessary paperwork and recordkeeping, and other 

22 compliance problems. 

23 (5) The Act often conflicts with employers’ paid 

24 sick leave policies, prevents employers from man25 aging absences through their absence control plans, 
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1 and results in most leave under the Act becoming 

2 paid leave. 

3 (6) Administrative problems associated with the 

4 use of intermittent leave under the Act are a well5 documented issue. Approximately three-quarters (76 

6 percent) of respondents to a 2000 survey by the So7 ciety for Human Resource Management said they 

8 would find compliance easier if the Department of 

9 Labor allowed covered leave to be offered and 

10 tracked in half-day increments rather than minutes. 

11 (7) In 1996, the Commission on Leave, estab12 lished by title III of the Act (29 U.S.C. 2631 et 

13 seq.), reported few compliance difficulties with the 

14 Act, but the Commission only based its findings on 

15 leave taken between January 1994 and June 1995. 

16 Only after the final regulations became effective in 

17 early 1995, and after the issuance of contradictory 

18 interpretations of what constitutes a serious health 

19 condition, did employers begin to encounter most 

20 compliance difficulties. As a result, the Commission 

21 report failed to identify many compliance problems, 

22 because the findings were primarily based on leave 

23 taken before the final regulations became effective. 

24 (8) A more recent Department of Labor survey, 

25 released in January 2001 as an update requested by 
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1 Congress to the 1996 Commission on Leave report, 

2 found that between 1995 and 2000, there had been 

3 a 21.5 percent decline in the share of covered estab4 lishments reporting that it was somewhat easy or 

5 very easy to comply with the Act. 

6 SEC. 3. DEFINITION OF SERIOUS HEALTH CONDITION. 

7 Section 101(11) of the Family and Medical Leave Act 

8 of 1993 (29 U.S.C. 2611(11)) is amended—

9 (1) by redesignating subparagraphs (A) and 

10 (B) as clauses (i) and (ii), respectively; 

11 (2) by inserting ‘‘(A)’’ before ‘‘The term’’; 

12 (3) by adding at the end the following: 

13 ‘‘(B) Such term includes an illness, injury, 

14 impairment, or physical or mental condition 

15 that involves care or treatment described in 

16 subparagraph (a), such as a heart attack, a 

17 heart condition requiring heart bypass or valve 

18 operations, a back condition requiring extensive 

19 therapy or a surgical procedure, a stroke, a se20 vere respiratory condition, a spinal injury, ap21 pendicitis, pneumonia, emphysema, severe ar22 thritis, a severe nervous disorder, an injury 

23 caused by a serious accident on or off the job, 

24 an ongoing pregnancy, a miscarriage, and a 

25 complication or illness related to pregnancy 
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1 (such as severe morning sickness, a need for 

2 prenatal care, childbirth, and recovery from 

3 childbirth); and 

4 ‘‘(C) Such term does not include a short5 term illness, injury, impairment, or condition 

6 for which treatment and recovery are very 

7 brief.’’. 

8 SEC. 4. INTERMITTENT LEAVE. 

9 Section 102(b)(1) of the Family and Medical Leave 

10 Act of 1993 (29 U.S.C. 2612(b)(1)) is amended by insert11 ing before the period at the end of the second sentence 

12 the following: ‘‘, as certified under section 103 by the 

13 health care provider after each leave occurrence. An em14 ployer may require an employee to take intermittent leave 

15 in increments of up to half a workday. An employer may 

16 require an employee who travels as part of the normal day17 to-day work or duty assignment of the employee and who 

18 requests intermittent leave or leave on a reduced schedule 

19 to take leave for the duration of that work or assignment 

20 if the employer cannot reasonably accommodate the em21 ployee’s request’’. 

22 SEC. 5. REQUEST FOR LEAVE. 

23 Section 102(e) of the Family and Medical Leave Act 

24 of 1993 (29 U.S.C. 2612(e)) is amended by inserting after 

25 paragraph (2) the following: 
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1 ‘‘(3) REQUEST FOR LEAVE.—If an employer 

2 does not exercise, under subsection (d)(2), the right 

3 to require an employee to substitute other employer4 provided leave for leave under this title, the em5 ployer may require the employee who wants leave 

6 under this title to request the leave in a timely man7 ner. if an employer requires a timely request under 

8 this paragraph, an employee who fails to make a 

9 timely request may be denied leave under this title. 

10 For purposes of this paragraph, a request for leave 

11 shall be considered timely if—

12 ‘‘(A) in the case of foreseeable leave, the 

13 employee—

14 ‘‘(i) provides the applicable advance 

15 notice required by paragraphs (1) and (2); 

16 and 

17 ‘‘(ii) submits any written application 

18 required by the employer for the leave not 

19 later than 5 working days after providing 

20 the notice to the employer; and 

21 ‘‘(B) in the case of unforeseeable leave, the 

22 employee—

23 ‘‘(i) notifies the employer orally of the 

24 need for the leave—
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1 ‘‘(I) not later than the date the 

2 leave commences; or 

3 ‘‘(II) during such additional pe4 riod as may be necessary, if the em5 ployer is physically or mentally in6 capable of providing the notification; 

7 and 

8 ‘‘(ii) submits any written application 

9 required by the employer for the leave—

10 ‘‘(I) not later than 5 working 

11 days after providing the notice to the 

12 employer; or 

13 ‘‘(II) during such additional pe14 riod as may be necessary, if the em15 ployee is physically or mentally in16 capable of submitting the applica17 tion.’’. 

18 SEC. 6. SUBSTITUTION OF PAID LEAVE. 

19 Section 102(d)(2) of the Family and Medical Leave 

20 Act of 1993 (29 U.S.C. 2612(d)(2)) is amended by adding 

21 at the end the following: 

22 ‘‘(C) PAID ABSENCE.—Notwithstanding 

23 subparagraphs (A) and (B), with respect to 

24 leave provided under subparagraph (D) of sub25 section (a)(1), where an employer provides a 
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1 paid absence under the employer’s collective 

2 bargaining agreement, a welfare benefit plan 

3 under the Employee Retirement Income Secu4 rity Act of 1974 (29 U.S.C. 1001 et seq.), or 

5 under any other sick leave, sick pay, or dis6 ability plan, program, or policy of the employer, 

7 the employer may require the employee to 

8 choose between the paid absence and unpaid 

9 leave provided under this title.’’. 

10 SEC. 7. REGULATIONS. 

11 (a) REVISED REGULATIONS.—The Secretary of 

12 Labor shall issue revised regulations that implement the 

13 Family and Medical Leave Act of 1993 and reflect the 

14 amendments made by this Act. In issuing such revised reg15 ulations, the Secretary shall—

16 (1) not later than 90 days after the date of en17 actment of this Act—

18 (A) review all regulations issued before 

19 such date of enactment, including the regula20 tions published in sections 825.114 and 

21 825.115 of title 29, Code of Federal Regula22 tions; and 

23 (B) issue proposed regulations; and 

24 (2) not later than 180 days after the date of 

25 enactment of this Act, issue final regulations, which 
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1 shall take effect not later than 90 days after the 

2 date of their issuance. 

3 (b) APPLICATION OF EXISTING REGULATIONS.—

4 Regulations and opinion letters issued by the Secretary 

5 of Labor before the effective date of the revised regula6 tions under subsection (a) shall not apply to actions taken 

7 by an employer after the effective date of such revised reg8 ulations with respect to leave under the Family and Med9 ical Leave Act of 1993. 

10 SEC. 8. EFFECTIVE DATE OF AMENDMENTS. 

11 The amendments made by this Act shall take effect 

12 on the date of issuance of the final regulations required 

13 under section 7(a)(2).

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