Legislation (524L)-Fall 2000

Professor Martha Dragich

FINAL EXAMINATION

General Instructions

This is a closed book examination. You may not refer to any materials whatsoever (other than those provided as part of this examination), including textbook, notes, or outlines. This examination is governed by provisions of the law school's Honor Code. This examination counts for 100% of your final grade for the course (subject to adjustment for participation, as explained in the course information sheet).

The examination consists of one question and 20 pages. Please check immediately to make certain that your copy includes all the pages. You must return the examination along with your bluebooks at the end of the examination. You will have four (4) hours in which to complete the examination.

Do not remove any pages from your bluebooks. If you have written matter that, upon reflection, you do not wish me to read, please draw an "X" across it and write "OMIT" in the margin. I will neither read nor consider any material so marked.

This examination question presents a significant amount of material to read. You would be well-advised to spend considerable time reading this material carefully and thinking about your answer. It is possible to write a very good answer, thorough and precise, in a relatively few pages. Your analysis should discuss all issues that, in your judgment, are necessary to a sound construction of the statute. In addition to presenting your client's position, your analysis should refute any major counter-arguments likely to be raised by the other side. I have provided a variety of materials that I think an attorney would consult in attempting to answer this question. All are potentially relevant, but a good answer need not necessarily draw on all of them.

In the course of answering the question, you may find it necessary to rely on facts or assumptions not included in the examination materials. I will accept as true any fact or assumption you state, so long as it is not flatly contradicted by the materials I have provided. Likewise, for purposes of plain meaning analysis (if any), you may state the common meaning for a term. I will accept any reasonable definition you supply. I have elected not to provide any dictionary definitions.

In grading, primary emphasis will be placed on the content of the answer, including identification of issues and cogency of analysis. Less weight will be placed on polished writing, but that does not mean that clarity of expression is irrelevant.

Facts

Pamela Garnett had worked full-time (2,000 hours per year) as a nurse for the University of Academia, a state-supported institution of higher education in the State of Grace, since 1987. During her employment, she received several promotions, including one as recently as June 1997, when she was promoted to Director of OB/GYN/Neonatal Nursing Services. In August 1998, Garnett was diagnosed with breast cancer and underwent a lumpectomy and continued radiation and chemotherapy treatment through January 1999.

Garnett requested medical leave from Academia on August 21, 1998, providing medical certification of her diagnosis. Academia granted the request, and her leave began on that date. Academia's leave policy allowed employees with six months of service to take leave for up to four months. The leave policy required employees on leave to submit requests for extensions of leave every thirty days. Garnett complied with that requirement, requesting extensions of leave on September 21, October 21, and November 21, 1998. Each request for an extension was granted. The University did not, however, notify Garnett of her leave eligibility under the FMLA or her right to have leave designated as FMLA leave.

On December 21, 1998 Garnett filed another request for an extension of leave because her treatment continued and she was unable to return to work. To her shock, she was informed that she would be terminated because she had exhausted her four months of University-provided leave. On this occasion, for the first time, Garnett inquired about FMLA leave. She was informed that she had requested and utilized all of her available leave. Academia maintained that Garnett's FMLA leave ran concurrently with her University-provided leave and, in fact, expired before the end of her University-provided leave period. Upon termination, Garnett became responsible for paying all costs associated with her medical, dental, and life insurance policies (formerly provided as a benefit at no cost to her), and her participation in the University's retirement program ended.

Garnett's physician released her to work in March of 1999, and she has been actively employed in full-time positions since March 10, 1999. To date, however, she has been able to find only less responsible positions, and earns a significantly lower salary than she did while employed with Academia. Garnett is no longer being treated for cancer and is currently capable of working without restrictions.

Garnett is married and has two teenaged children. Her salary formerly contributed about 40% of the household income. Her current salary contributes approximately 30% of the household income.

Garnett alleges that the University of Academia violated the FMLA by failing to place her on FMLA leave beginning on December 21, 1998 for a maximum of 12 weeks, and thereby hold her job open until she was able to return to work. Alternatively, Garnett alleges that Academia was obligated to offer her an equivalent position upon her return following the requested FMLA leave. She seeks damages and equitable relief.

Garnett has retained your law firm to represent her. The senior partner has assigned you to evaluate the possibility of bringing suit against Academia in federal court on Garnett's behalf for violation of Garnett's rights under the Family and Medical Leave Act.

Assumptions

Please make the following assumptions:

  • Garnett has complied with all procedural and reporting requirements of the FMLA.
  • Congress acted constitutionally (that is, within the powers granted to Congress by the Constitution) in passing the FMLA.
  • The State of Grace has not enacted a family/medical leave law. The cost to state agencies of implementing the FMLA is not known.
  • The FMLA is new legislation which does not amend preexisting law. Congress passed this legislation in 1992, but it was vetoed by President Bush. President Bush's veto message appears at the end of this packet. Congress passed the same measure in 1993, and it was signed into law by President Clinton.
  • Regulations implementing the FMLA were adopted by the Department of Labor in 1995 after a full notice-and-comment rulemaking procedure stretching across two years. Numerous comments were received and considered. There has been no challenge to the rulemaking process, and you should assume that the process was valid.
  • The FMLA sections provided in this packet refer to 29 U.S.C. § 203. This section is part of the Fair Labor Standards Act, originally enacted in 1938. The FLSA governs matters such as minimum wage, maximum hours of work, overtime compensation, and child labor. Relevant excerpts of the FLSA provision are provided. No further knowledge of the FLSA is presumed or required.
  • There are no additional statutory provisions, regulations, legislative history materials, or case law relevant to this examination question.
  • Note: I have modified the provisions of statutes and regulations provided in this packet. You are to assume that the law is as I have given it to you. If you have independent knowledge of the FMLA that conflicts with the information I have provided, that knowledge is not relevant to this examination.

    FOR EDUCATIONAL USE ONLY

    Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

    UNITED STATES CODE ANNOTATED

    TITLE 29. LABOR

    CHAPTER 28--FAMILY AND MEDICAL LEAVE

    SUBCHAPTER I--GENERAL REQUIREMENTS FOR LEAVE

    § 2601. 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.

    (Pub.L. 103-3, § 2, Feb. 5, 1993, 107 Stat. 6.)

    § 2611. Definitions

    As used in this subchapter:

    ...

    (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 2612 of this title; and

    (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

    (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 203 of this title. [See p. 10 of this packet for text of § 203.]

    (4) Employer

    (A) In general

    The term "employer"--

    (i) means any person ... 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 ... any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

    (iii) includes any "public agency", as defined in section 203(x) of this title.

    (8) Person

    The term "person" has the same meaning given such term in section 203(a) of this title.

    ...

    (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.

    (Pub.L. 103-3, Title I, § 101, Feb. 5, 1993, 107 Stat. 7; Pub.L. 104-1, Title II, § 202(c)(1)(A), Jan. 23, 1995, 109 Stat. 9.)

    § 2612. Leave requirement

    (a) In general

    (1) Entitlement to leave

    Subject to section 2613 of this title, 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:

    (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

    ...

    (c) Unpaid leave permitted

    Except as provided in subsection (d) of this section, leave granted under subsection (a) may consist of unpaid leave.

    (d) 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 subchapter may be provided without compensation.

    (2) Substitution of paid leave

    ...

    (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 (D) of subsection (a)(1) of this section for any part of the 12-week period of such leave under such subsection, except that nothing in this subchapter 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.



    (e) Foreseeable leave

    ...



    (2) Duties of employee



    In any case in which the necessity for leave under subparagraph (D) of subsection (a)(1) of this section 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; 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.



    (Pub.L. 103-3, Title I, § 102, Feb. 5, 1993, 107 Stat. 9.)







    § 2613. Certification



    (a) In general



    An employer may require that a request for leave under subparagraph (D) of section 2612(a)(1) of this title be supported by a certification issued by the health care provider of the eligible employee. The employee shall provide, in a timely manner, a copy of such certification to the employer.

    ...



    (e) Subsequent recertification



    The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.



    (Pub.L. 103-3, Title I, § 103, Feb. 5, 1993, 107 Stat. 11.)







    § 2614. Employment and benefits protection



    (a) Restoration to position



    (1) In general



    Any eligible employee who takes leave under section 2612 of this title 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 2612 of this title shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.



    (Pub.L. 103-3, Title I, § 104, Feb. 5, 1993, 107 Stat. 14.)







    § 2615. 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 subchapter.

    ...



    (Pub.L. 103-3, Title I, § 105, Feb. 5, 1993, 107 Stat. 14.)







    § 2617. Enforcement



    (a) Liability



    Any employer who violates section 2615 of this title shall be liable to any eligible employee affected--



    (A) for damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation;

    and



    (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.



    (b) Action by Secretary



    (1) Administrative action



    The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 2615 of this title.



    (2) Civil action



    The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in subsection (a) of this section.



    (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.



    (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 2615 of this title, 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.



    (Pub.L. 103-3, Title I, § 107, Feb. 5, 1993.)

    FOR EDUCATIONAL USE ONLY

    Copr. © West 2000 No Claim to Orig. U.S. Govt. Works



    UNITED STATES CODE ANNOTATED

    TITLE 29. LABOR

    CHAPTER 8--FAIR LABOR STANDARDS





    § 203. Definitions



    As used in this chapter--



    (a) "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.

    ...



    (c) "State" means any State of the United States or the District of Columbia or any Territory or possession of the United States.

    ...



    (e)(1) Except as provided in paragraphs (2), (3), and (4) the term "employee" means any individual employed by an employer.



    (2) In the case of an individual employed by a public agency, such term means--

    ...

    (C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency....



    (g) "Employ" includes to suffer or permit to work.

    ...



    (q) "Secretary" means the Secretary of Labor.

    ...



    (x) "Public agency" means the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate Commission), a State, or a political subdivision of a State; or any interstate governmental agency.

    ...



    FOR EDUCATIONAL USE ONLY

    Copr. © West 2000 No Claim to Orig. U.S. Govt. Works



    CODE OF FEDERAL REGULATIONS

    TITLE 29--LABOR

    SUBTITLE B--REGULATIONS RELATING TO LABOR



    PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993



    § 825.101 What is the purpose of the Act?



    (a) FMLA is intended to allow employees to balance their work and family life by taking reasonable unpaid 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. The Act is intended 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. It was intended that the Act accomplish these purposes in a manner that accommodates the legitimate interests of employers, and in a manner consistent with the Equal Protection Clause of the Fourteenth Amendment in minimizing the potential for employment discrimination on the basis of sex, while promoting equal employment opportunity for men and women.



    (b) The enactment of FMLA was predicated on two fundamental concerns--the needs of the American workforce, and the development of high-performance organizations. Increasingly, America's children and elderly are dependent upon family members who must spend long hours at work. When a family emergency arises, requiring workers to attend to seriously-ill children or parents, or to newly-born or adopted infants, or even to their own serious illness, workers need reassurance that they will not be asked to choose between continuing their employment, and meeting their personal and family obligations or tending to vital needs at home.



    (c) The FMLA is both intended and expected to benefit employers as well as their employees. A direct correlation exists between stability in the family and productivity in the workplace. FMLA will encourage the development of high-performance organizations. When workers can count on durable links to their workplace they are able to make their own full commitments to their jobs. The record of hearings on family and medical leave indicate the powerful productive advantages of stable workplace relationships, and the comparatively small costs of guaranteeing that those relationships will not be dissolved while workers attend to pressing family health obligations or their own serious illness.







    § 825.208 Under what circumstances may an employer designate leave, paid or unpaid, as FMLA leave and, as a result, count it against the employee's total FMLA leave entitlement?



    (a) In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.



    (1) An employee giving notice of the need for unpaid FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act. If the employee fails to explain the reasons, leave may be denied. In many cases, in explaining the reasons for a request to use paid leave, especially when the need for the leave was unexpected or unforeseen, an employee will provide sufficient information for the employer to designate the paid leave as FMLA leave. An employee using accrued paid leave, especially vacation or personal leave, may in some cases not spontaneously explain the reasons or their plans for using their accrued leave.



    (2) An employee giving notice of the need for unpaid FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave. An employee requesting or notifying the employer of an intent to use accrued paid leave, even if for a purpose covered by FMLA, would not need to assert such right either.



    (b)(1) Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly notify the employee that the paid leave is designated and will be counted as FMLA leave.



    (2) The employer's notice to the employee that the leave has been designated as FMLA leave may be orally or in writing. If the notice is oral, it shall be confirmed in writing. The written notice may be in any form, including a notation on the employee's pay stub.



    (c) If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, or when an employee gives notice of the need for an extension of the paid leave with unpaid FMLA leave, the entire or some portion of the paid leave period may be retroactively counted as FMLA leave, to the extent that the leave period qualified as FMLA leave. In such circumstances, the employee is subject to the full protections of the Act, but the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement.



















    § 825.700 What if an employer provides more generous benefits than required by FMLA?



    (a) An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the Act may not be diminished by any employment benefit program or plan.



    (b) Nothing in this Act prevents an employer from amending existing leave and employee benefit programs, provided they comply with FMLA. However, nothing in the Act is intended to discourage employers from adopting or retaining more generous leave policies.



    END OF DOCUMENT

    FOR EDUCATIONAL USE ONLY

    Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works

    S. Rep. No. 3, 103D Cong., 1st Sess. 1993

    1993 USCC&AN 3





    REPORTS



    P.L. 103-3, FAMILY AND MEDICAL LEAVE ACT OF 1993

    DATES OF CONSIDERATION AND PASSAGE

    House: February 3, 4, 1993

    Senate: February 4, 1993

    Cong. Record Vol. 139 (1993)



    SENATE REPORT NO. 103-3 (excerpts only)

    January 27, 1993



    [To accompany S. 5]

    The Committee on Labor and Human Resources, to which was referred the bill (S. 5) to entitle employees to family and medical leave in certain cases involving a birth, an adoption, or a serious health condition of an employee, a child, a spouse or a parent, with adequate protection of the employees' employment and health benefit rights, having considered the same, reports favorably thereon and recommends that the bill do pass.



    I. SUMMARY OF THE BILL [omitted]



    II. BACKGROUND AND NEED FOR LEGISLATION



    Private sector practices and government policies have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family. This failure continues to impose a heavy burden on families, employees, employers and the broader society. S. 5 provides a sensible response to the growing conflict between work and family by establishing a right to unpaid family and medical leave for all workers covered under the act.



    THE FAMILY AND MEDICAL LEAVE ACT SETS A MINIMUM LABOR STANDARD



    The Family and Medical Leave Act (FMLA) accommodates the important societal interest in assisting families, by establishing a minimum labor standard for leave. The bill is based on the same principle as the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment.

    Each of these standards arose in response to specific problems with broad implications. The minimum wage was enacted because of the societal interest in preventing the payment of exploitative wages. Children were working for long hours, under unsafe conditions, when the child labor laws were enacted. The Social Security Act was based on the belief that workers should be assured a minimum pension at retirement. The Occupational Safety and Health Act created standards to help assure safe and healthy workplaces.

    *****

    There is a common set of principles underlying each of these labor standards. In each instance, a Federal labor standard directly addresses a serious societal problem, such as the exploitation of child labor, or the exposure of workers to toxic substances. Voluntary corrective actions on the part of employers had proven inadequate, with experience failing to substantiate the claim that, left alone, all employers would act responsibly. Finally, each law was enacted with the needs of employers in mind. Care was taken to establish a standard that employers could meet.

    *****

    The Family and Medical Leave Act was drafted with these principles in mind and fits squarely within the tradition of the labor standards laws that have preceded it. In the past, Congress has responded to changing economic realities by enacting labor standards that are now widely accepted. In drawing on this tradition, the FMLA proposes a minimum labor standard to address significant new developments in today's workplace.

    *****

    TESTIMONY ON THE NEED FOR FAMILY AND MEDICAL LEAVE



    The Subcommittee on Children, Family, Drugs and Alcoholism conducted nine hearings since 1987 on similar family and medical leave legislation. In addition, the subcommittee conducted a hearing on January 22, 1993 on S. 5. There, the need for family and medical leave and the effects of family leave on business were explored in further detail. At this hearing and at the nine other subcommittee hearings held since 1987, witnesses testified about the difficulties they faced in attempting to meet the needs of their families and the demands of their jobs. Their experiences provide a human dimension on the need for a national policy on family and medical leave for each of the circumstances covered under the bill.

    *****



    LEAVE FOR THE EMPLOYEE'S OWN SERIOUS ILLNESS



    In addition to the family leave purposes described above, S. 5 provides for unpaid job protected leave and the continuation of any existing health insurance coverage during an employee's serious illness. The fundamental rationale for such a policy is that it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working. Job loss because of illness has a particularly devastating effect on workers who support themselves and on families where two incomes are necessary to make ends meet or where a single parent heads the household. As Eleanor Holmes Norton testified:

    For the single parent, usually a woman, losing her job when she is unable to work during a time of serious health condition can often mean borrowing beyond prudence, going on welfare, or destitution for herself and her family. Indeed, it is hard to understand how single parents, who have no choice but to work to support their families, have survived under the present system. For this highly vulnerable group, whose numbers have exploded, a job guarantee for periods when they or their children have serious health conditions is urgently necessary. The high rates of single parenthood among minority families and of labor force participation by minority single mothers make job-guaranteed leaves especially critical for minorities.

    *****

    EMPLOYERS FIND FAMILY LEAVE POLICIES COST-EFFECTIVE



    The subcommittee received testimony from a wide range of employers that already provide family and medical leave. Many of the witnesses testified in dual capacities, as small employers providing leave and as experts in other areas relevant to the legislation. From this testimony, and from a wide body of study and research data, the committee concludes that family and medical leave is cost-effective in terms of reduced hiring and training costs, turnover, and absenteeism. *****



    FAMILY LEAVE LAWS IN THE STATES



    Since Federal family leave legislation was first introduced, numerous States have begun to consider similar family leave initiatives. Approximately 30 States, the District of Columbia and Puerto Rico have adopted some form of family or medical leave.

    *****



    IV. COMMITTEE VIEWS

    *****

    SUBSTITUTION OF PAID LEAVE



    Section 102(d) [29 U.S.C. § 2612(d)] provides for the substitution of certain paid leaves for the unpaid leave mandated by this legislation. When an employer has required or an employee has elected to substitute for unpaid leave appropriate paid leave of less than 12 weeks duration, the employer need only provide an additional period of unpaid leave so that the total of paid and unpaid leave provided equals 12 weeks.

    Section 102(d)(2)(B) allows substitution of paid vacation leave, personal leave or medical or sick leave for any part of the leave required under section 102(a)(1)(D). As stated in section 102(d)(2)(B), nothing in the act requires an employer to provide paid sick leave or medical leave in any situation in which the employer does not normally provide such leave.

    The purpose of section 102(d) is to provide that specified paid leaves which have accrued but have not yet been taken, may be substituted for the unpaid leave under the act in order to mitigate the financial impact of wage loss due to family and temporary medical leaves. The employer may not trade shorter periods of paid leave for the longer periods of unpaid leave prescribed by the act. Section 102(d) assures that an employee is entitled to the benefits of applicable paid leave, plus any remaining leave time made available by the act on an unpaid basis.

    *****



    MEANING OF SERIOUS HEALTH CONDITION



    The definition of "serious health condition" in section 101(10) [29 U.S.C. § 2611(10)] is broad and intended to cover various types of physical and mental conditions.

    With respect to an employee, the term "serious health condition" is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery. ...

    Examples of serious health conditions include but are not limited to heart attacks, heart conditions, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, the need for prenatal care, childbirth and recovery from childbirth. ...

    All of these health conditions require absences from work either for the condition or operation itself or for continuing medical treatment or supervision (e.g., physical therapy for accident victims or severe arthritis patients). Because continuing treatment or supervision may sometimes take the form of intermittent visits to the doctor, section 102(b)(1) specifically permits an employee to take the leave covered by section 102(a)(1)(D) "intermittently or on a reduced leave schedule when medically necessary." Only the time actually taken is charged against the employee's entitlement.



    EMPLOYMENT AND BENEFITS PROTECTION



    An employee taking leave under this bill is entitled, upon return from such leave, to be restored to his or her previous position or to "an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." Section 104(a)(1). This provision is central to the entitlement provided in this bill.

    The committee recognizes that it will not always be possible for an employer to store an employee to the precise position held before taking leave. On the other hand, employees would be greatly deterred from taking leave without the assurance that upon return from leave, they will be reinstated to a genuinely equivalent position. Accordingly, the bill contains an appropriately stringent standard for assigning employees returning from leave to jobs other than the precise positions which they previously held. First, the standard of "equivalence"-not merely "comparability" or "similarity"-necessarily requires a correspondence to the duties and other terms, conditions and privileges of an employee's previous position. Second, the standard encompasses all "terms and conditions" of employment, not just those specified.



    *****



    VIII. COMMITTEE ACTION



    On January 26, 1993, the Chairman of the Committee on Labor and Human Resources, Senator Kennedy, convened an Executive Session of the committee to consider S. 5.

    The committee considered a motion to favorably report the bill. By roll call vote of 13 to 4, the committee agreed to the motion.

    FOR EDUCATIONAL USE ONLY

    Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works

    (Cite as: 139 Cong. Rec. H379-02)



    Congressional Record --- House of Representatives

    Proceedings and Debates of the 103rd Congress, First Session

    Wednesday, February 3, 1993



    *H379 FAMILY AND MEDICAL LEAVE ACT OF 1993



    The SPEAKER.

    Pursuant to House Resolution 58 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 1.



    Mr. CLAY.

    Madam Chairman, as America's work force changes to meet the economic realities of the 1990's, it is critical that the work force adapt to accommodate those changes. The Family and Medical Leave Act, of which I have been a principal sponsor for the past 8 years, will provide a minimum labor standard to ease the new workplace burden of balancing the demands of work and family. We are not mandating anything. What we are doing is imposing a standard of work conditions which is just and fair for our work force.

    H.R. 1 is fair and humane legislation. It would provide job security for those who need to take time away from work during a family or medical emergency. It is a compassionate response to the new dynamic of today's working family. In a world where tragedy can strike at any time and it is no longer a certainty that someone will be at home to take care of the family, H.R. 1 is the least we in Congress can require.

    When this important legislation is signed into law, people will never again have to make the unconscionable choice between their jobs, which they desperately need, and the health and well-being of their families, which they desperately want.

    Parents will be able to be where they are supposed to be when tragedy strikes their kids, and that is at their bedsides. ...

    Madam Chairman, it is time to move forward on this legislation. We have been debating the issue for too long. While we in Washington were bickering, our global competitors were enacting family and medical leave laws for their citizens.

    The United States alone stands among all industrialized countries in not having this minimum labor standard for its workers.

    This is an embarrassment we can no longer afford.

    I am pleased, Madam Chairman, that President Clinton has pledged to sign this bill once it reaches his desk. It is high time that America has a national Family and Medical Leave Act.

    Madam Chairman, I urge my colleagues to support H.R. 1 and oppose any weakening amendments.





    Mr. DORNAN.

    Madam Chairman, I rise today in opposition to H.R. 1, the Parental and Medical Leave Act of 1993.

    At first glance, this piece of legislation sounds like a lifesaver to the average worker. It would require employers to provide up to 12 weeks of unpaid leave per year for the care of a newborn baby, an adopted child, an ill family member, or an employee with a serious illness. Additionally, employees on leave would continue to receive health benefits, and the same or equivalent job would be waiting for them when they return. Sounds reasonable, right? Wrong.

    A closer look shows that this bill does nothing but benefit the few employees who can actually afford unpaid leave. Moreover, this bill would further cripple American businesses who for years have been victims of a government which thrives on intrusive and overburdensome regulations.

    Not surprisingly, American companies are furious about this kind of Government intervention. Can you blame them? Since when does Government know what is best for our Nation's businesses? Or better yet, for our families? It is this kind of Government intervention that has crippled businesses and the American families in the first place. Mandated leave imposes an enormous burden on businesses throughout the country. Indeed, new labor costs associated with the mandate are estimated to exceed $3.3 billion in the first year alone, resulting in a loss of nearly 60,000 jobs. This hardship is added to the estimated $500 billion a year American businesses already spend on Government regulation. Furthermore, violation of this new law could result in an onslaught of outrageous litigation expenses for businesses. These costs will surely be passed on to workers and consumers alike.

    Do not be fooled by those who will tell you that H.R. 1 is profamily legislation. Tightening the leash on our Nation's businesses is no way to help the American family. I ask that my colleagues join me in preventing this destructive measure from being passed.



    Mr. OWENS.

    Madam Chairman, I rise in strong support of H.R. 1, the Family and Medical Leave Act.

    Madam Chairman, I would like to note that this is a compromise. This is the lowest common denominator, as other speakers have pointed out. This is a bill that was fashioned in order to try to get the vote of a very insensitive President. This was intended to garner the maximum support, but it places us at the bottom rung, the lowest level among the industrialized nations. There are many more nations that offer family leave, and among our competitors there are nations that offer family leave with pay.

    H.R. 1 requires employers with 50 or more employees, as well as State and local governments, to provide their workers with up to 12 weeks of unpaid leave each year to allow them to care for a new child or seriously ill family member; this leave period could also be used as medical leave if the employee is seriously ill. Workers' jobs would be fully protected during their leave and employers would be required to continue to provide health benefits during the period of leave.

    The cost to business of providing family leave is minimal. The General Accounting Office estimated that H.R. 1 would cost covered employers about $5 per employee annually; another study commissioned by the Small Business Administration put the cost at $6.70 per employee annually. In contrast, that same SBA study found that every time an employer discharges a worker because of illness, disability, pregnancy, and childbirth, instead of providing leave, it costs the business between $1,000 and $3,000.

    Though the cost to business of providing leave is trivial, the emotional and financial cost of not having access to family and medical leave can be devastating. Workers without leave suffer added unemployment and earnings losses after childbirth of illness because they cannot return to their former jobs; others who are able to return to their jobs are often paid substantially lower hourly wage rates.

    H.R. 1 is necessary, breakthrough legislation, but I think it is important that we do not overstate what it will accomplish. It would be hard to weaken and water down this bill any more than it has been during the past 8 years it has been under consideration in the Congress. Every time this legislation has been brought forward to the floor, we have pared away more and more of the protections this bill would provide workers in order to make it more palatable to more Members of this body. Most businesses are not even covered by this bill any more. Small businesses with fewer than 50 employees are now completely exempted. This bill will have no effect at all on 95 percent of the businesses and 44 percent of the employees in this country. The sponsors of the bill have also dramatically reduced the amount of leave that would be available to employees. When we started this process we were talking about providing 18 weeks of family leave and 26 weeks of disability leave. What we're down to now is a total of just 12 weeks of leave for any reason.

    And, as from the beginning, we are only talking here about unpaid leave. Unpaid. For many families who are living from paycheck to paycheck, family and medical leave will still be an economic impossibility. They will just not be able to afford the time off.

    With H.R. 1, the 103d Congress can take its first concrete step toward putting people first in America again. I urge my colleagues to support this legislation.

    FOR EDUCATIONAL USE ONLY

    Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works

    (Cite as: 138 Cong. Rec. S14841-03)



    [President Bush's] Veto message to accompany S. 5, an act to grant family and medical leave under certain circumstances, and for other purposes.

    The veto message is as follows:



    To the Senate of the United States:

    I am returning herewith without my approval S. 5, the "Family and Medical Leave Act of 1992." This bill would mandate that public and private employers with 50 or more employees provide their employees with leave under certain circumstances.

    I want to strongly reiterate that I have always supported employer policies to give time off for a child's birth or adoption or for family illness and believe it is important that employers offer these benefits. I object, however, to the Federal Government mandating leave policies for America's employers and work force. S. 5 would do just that.

    America faces its stiffest economic competition in history. If our Nation is to succeed in an increasingly complex and competitive global marketplace, we must have the flexibility in our workplaces to meet this challenge. We must ensure that Federal policies do not stifle the creation of new jobs or result in the elimination of existing jobs. The Administration is committed to policies that create and preserve jobs throughout the economy-serving the most fundamental need of working families.

    My Administration is also strongly committed to policies that foster a complementary relationship between work and family and encourage the development of a strong employer-employee partnership. If these policies are to meet the diverse needs of our Nation, they must be carefully, flexibly, and sensitively crafted at the workplace by employers and employees, and not in Washington, D.C., through Government mandates imposed by legislation such as S. 5.

    Therefore, I have transmitted to the Congress legislation to establish an alternative flexible family leave plan that will encourage small and medium- sized businesses to provide family leave for their employees.

    Both the House and Senate passed family leave legislation almost 1 year ago, but they have kept it in the filing cabinet until now. That is nearly an entire year with no action or any willingness to depart from a federally mandated approach, only an interest in politicizing the issue.

    I have proposed a truly flexible family leave program. I am willing to work with the Congress to get it passed and signed into law immediately.

    If the Congress is serious about encouraging family leave, I ask those Members of Congress who have joined me in the past in opposing Government mandates to work with me again. The Congress should pass a family leave bill quickly that provides positive incentives for family leave and is responsive to the needs of workers and employers.

    GEORGE BUSH.

    THE WHITE HOUSE, September 22, 1992.