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Friday, January 8, 2010

The Family and Medical Leave Act: Current Legislative Activity

Linda Levine
Specialist in Labor Economics

Time off to care for one's own health problems or those of family members is not a job-protected entitlement. Thus, employees sometimes have jeopardized their continued employment to be away from the workplace to address health-related matters. With passage of the Family and Medical Leave Act of 1993 (FMLA, P.L. 103-3), Congress mandated in Title I that private employers with at least 50 employees and public employers of any size provide job-protected unpaid leave for 12 workweeks in a 12-month period to employees who meet the length-ofservice and hours-of-work eligibility requirement in order to care for their own, a child's, spouse's, or parent's serious health condition; to care for a newborn, newly adopted, or newly placed foster child; and upon the birth or placement of an adopted or foster child. Civil service employees are entitled to the same leave benefits under Title II of the FMLA, which is administered by the Office of Personnel Management (OPM).

DOL replaced the act's 1995 regulation effective January 16, 2009. The final rule contains many changes and addresses regulatory issues raised by enactment of amendments to the FMLA in the National Defense Authorization Act (NDAA) of FY2008 (P.L. 110-181). The NDAA provided (1) 12 workweeks of FMLA leave to Title I FMLA-eligible employees dealing with issues arising from family members in the Guard or Reserves being called to active duty as a result of a qualifying exigency and (2) 26 workweeks of FMLA leave to Title I and Title II FMLA-eligible employees and next of kin caring for seriously injured or ill service members in the Armed Forces, Guard, or Reserves. Relatedly, in August 2009, OPM proposed regulations about military family caregiver leave for eligible civil service employees and requested comments on whether it should pursue legislation to extend P.L. 110-181's exigency leave to employees covered under Title II of the FMLA. The comment period ended on October 26, 2009.

On October 28, 2009, the President signed into law the NDAA for FY2010, which contained further changes to the FMLA. P.L. 111-84 extends qualifying exigency leave to FMLA-eligible family members of regular and reserve members of the Armed Forces deployed to a foreign country and extends military family caregiver leave to eligible family members and next of kin of recent veterans of the Armed Forces, Guard, or Reserves. These provisions apply not only to private sector employers with at least 50 employees and public agencies (Title I of the FMLA), but also to civil service employees (Title II of the FMLA).

The Airline Flight Crew Technical Corrections Act was the only other legislation to amend the FMLA that advanced beyond committee referral in the 110th Congress. Because a flight crewmember's work hours are based on in-flight time despite their spending more time at work (e.g., between flights), a full-time flight attendant or pilot usually works less than the 1,250 hours required for FMLA eligibility. The House again approved the reintroduced bill (H.R. 912) early in the 111th Congress. In July 2009, a very similar bill of the same title, S. 1422, was introduced in the Senate. The Senate passed S. 1422 in November, and the House passed it by voice vote on December 2, 2009. The bill states that airline flight crewmembers who have worked or been paid for not less than 60% of their total monthly guarantee for the prior 12 months and who have worked or been paid for not less than 504 hours in the prior 12 months (excluding personal commute time and vacation, and medical or sick leave) will be considered to have fulfilled the FMLA's hours-of-work requirement.

Date of Report: December 22, 2009
Number of Pages: 43
Order Number: RL30624
Price: $29.95

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