- United
States Code
- Title 29 - Labor
- Chapter 28 - Family
and Medical Leave
Sec. 2601. Findings and purposes.
SUBCHAPTER I - General Requirements For Leave
Sec. 2611 Definitions.
Sec. 2612 Leave requirement.
Sec. 2613 Certification.
Sec. 2614 Employment
and benefits protection.
Sec. 2615 Prohibited
acts.
Sec. 2616 Investigative
authority.
Sec. 2617 Enforcement.
Sec. 2618 Special rules
concerning employees of local educational agencies.
Sec. 2619 Notice.
SUBCHAPTER II - Commission on Leave
Sec. 2631 Establishment.
Sec. 2632 Duties.
Sec. 2633 membership.
Sec. 2634 Compensation.
Sec. 2635 Powers.
Sec. 2636 Termination.
SUBCHAPTER III - Miscellaneous Provisions
Sec. 2651 Effect on other
laws.
Sec. 2652 Effect on
existing employment benefits.
Sec. 2653 Encouragement
of more generous leave policies.
Sec. 2654 Regulations.
Sec. 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.
Sec. 2611 Definitions.
As used in this subchapter:
(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 of commerce, and include
"commerce" and any "industry affecting commerce", as defined
in paragraphs (1) and (3) of section 142 of this title.
(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 Sec. 2612
of this title; 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; 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 207 of this title shall apply.
(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.
(4) 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 203 (x) of this title.
(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.
(5) 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 1002(3) of this title.
(6) 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.
(7) 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.
(8) Person.
The term "person" has the same meaning given such term in section
203(a) of this title.
(9) 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.
(10) Secretary.
The term "Secretary" means the Secretary of Labor.
(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.
(12) 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.
(13) Spouse.
The term "spouse" means a husband or wife, as the case may be.
Sec. 2612 Leave requirement.
(a) In general.
(1) Entitlement to leave.
Subject to Sec. 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:
(A) Because of the birth of a son or daughter of the employee and in order
to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for
adoption or foster 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 of a 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) 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 reduced
leave schedule.
(1) In general.
Leave under subparagraph (A) or (B) of subsection (a)(1) of this section 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) of this section, and Sec.
2613(b)(5) of this title, leave under subparagraph (C) or (D) of subsection
(a)(1) of this section 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) of this section beyond the amount of leave actually taken.
(2) Alternative position.
If an employee requests intermittent leave, or leave on a reduced leave schedule,
under subparagraph (C) or (D) of subsection (a)(1) of this section, 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 -
(c) Unpaid leave permitted. Except as
provided in subsection (d) of this section, 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 213(a)(1) of this title, the compliance
of an employer with this subchapter by providing unpaid leave shall not affect
the exempt status of the employee under such section.
(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.
(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) of this section for any part of the
12-week period of such leave under such 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 of the employee for leave
provided under subparagraph (C) or (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.
(1) Requirement of notice.
In any case in which the necessity for leave under subparagraph (A) or (B)
of subsection (a)(1) of this section 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 subparagraph, 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) 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 or the health care provider
of the son, daughter, spouse, or parent of the employee, as appropriate;
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.
(f) Spouses employed by same employer.
In any case in which a husband and wife entitled to leave under subsection (a)
of this section 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 -
(1) under subparagraph (A) or (B) of subsection
(a)(1) of this section; or
(2) to care for a sick parent under subparagraph
(C) of such subsection.
Sec. 2613 Certification.
(a) In general. An employer may require
that a request for leave under subparagraph (C) or (D) of section 2612(a)(1)
of this title be supported by a certification issued by the health care provider
of the eligible employee or of the son, daughter, spouse, or parent of the employee,
as appropriate. The employee shall provide, in a timely manner, a copy of such
certification to the employer.
(b) Sufficient certification.
Certification provided under subsection (a) of this section shall be sufficient
if it states -
(1) the date on which the serious health condition
commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the
knowledge of the health care provider regarding the condition;
(4)
(A) for purposes of leave under Sec. 2612(a)(1)(C)
of this title, a statement 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,
or parent; and
(B) for purposes of leave under Sec. 2612(a)(1)(D)
of this title, a statement that the employee is unable to perform the functions
of the position of the employee;
(5) in the case of certification for intermittent
leave, or leave on a reduced leave schedule, for planned medical treatment,
the dates on which such treatment is expected to be given and the duration
of such treatment;
(6) in the case of certification for intermittent
leave, or leave on a reduced leave schedule, under Sec. 2612(a)(1)(D)
of this title, a statement of the medical necessity for the intermittent leave
or leave on a reduced leave schedule, and the expected duration of the intermittent
leave or reduced leave schedule; and
(7) in the case of certification for intermittent
leave, or leave on a reduced leave schedule, under Sec. 2612(a)(1)(C)
of this title, a statement that the employee's intermittent leave or leave
on a reduced leave schedule is necessary for the care of the son, daughter,
parent, or spouse who has a serious health condition, or will assist in their
recovery, and the expected duration and schedule of the intermittent leave
or reduced leave schedule.
(c) Second opinion.
(1) In general.
In any case in which the employer has reason to doubt the validity of the
certification provided under subsection (a) of this section for leave under
subparagraph (C) or (D) of Sec. 2612(a)(1) of this title,
the employer may require, at the expense of the employer, that the eligible
employee obtain the opinion of a second health care provider designated or
approved by the employer concerning any information certified under subsection
(b) of this section for such leave.
(2) Limitation.
A health care provider designated or approved under paragraph (1) shall not
be employed on a regular basis by the employer.
(d) Resolution of conflicting opinions.
(1) In general.
In any case in which the second opinion described in subsection (c) of this
section differs from the opinion in the original certification provided under
subsection (a) of this section, the employer may require, at the expense of
the employer, that the employee obtain the opinion of a third health care
provider designated or approved jointly by the employer and the employee concerning
the information certified under subsection (b) of this section.
(2) Finality.
The opinion of the third health care provider concerning the information certified
under subsection (b) of this section 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. 2614 Employment
and benefits protection.
(a) Restoration to position.
(1) In general.
Except as provided in subsection (b) of this section, any eligible employee
who takes leave under Sec. 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 Sec. 2612 of this title shall
not result in the loss of any employment benefit accrued prior to the date
on which the leave commenced.
(3) Limitations.
Nothing in this section shall be construed to entitle any restored employee
to -
(A) the accrual of any seniority or employment benefits during any period
of leave; 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 of restoration under paragraph (1) for an employee who has
taken leave under Sec. 2612(a)(1)(D) of this title, the
employer may have a uniformly applied practice or policy that requires each
such employee to receive certification from the health care provider of the
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
bargaining agreement that governs the return to work of such employees.
(5) Construction.
Nothing in this subsection shall be construed to prohibit an employer from
requiring an employee on leave under Sec. 2612 of this
title to report periodically to the employer on the status and intention of
the employee to return to work.
(b) Exemption concerning certain highly compensated
employees.
(1) Denial of restoration.
An employer may deny restoration under subsection (a) of this section 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 of the intent of the 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 of health benefits.
(1) Coverage.
Except as provided in paragraph (2), during any period that an eligible employee
takes leave under Sec. 2612 of this title, the employer
shall maintain coverage under any "group health plan" (as defined
in section 5000(b)(1) of title 26) for the duration of such leave at the level
and under the conditions coverage would have been provided if the employee
had continued in employment continuously for the duration of such leave.
(2) Failure to return from leave.
The employer may recover the premium that the employer paid for maintaining
coverage for the employee under such group health plan during any period of
unpaid leave under Sec. 2612 of this title if -
(A) the employee fails to return from leave under Sec.
2612 of this title after the period 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 of a serious health condition
that entitles the employee to leave under subparagraph (C) or (D) of Sec.
2612(a)(1) of this title; or
(ii) other circumstances beyond the control of the employee.
(3) Certification.
(A) Issuance. An employer may require that a claim that an employee is
unable to return to work because of the continuation, recurrence, or onset
of the serious health condition described in paragraph (2)(B)(i) be supported
by -
(i) a certification issued by the health care provider of the son, daughter,
spouse, or parent of the employee, as appropriate, in the case of an employee
unable to return to work because of a condition specified in Sec.
2612(a)(1)(C) of this title; or
(ii) 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 Sec. 2612(a)(1)(D) of
this title.
(B) Copy. The employee shall provide, in a timely manner, a copy of such
certification to the employer.
(C) Sufficiency of certification.
(i) Leave due to serious health condition of employee. The certification
described in subparagraph (A)(ii) 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 of the employee expired.
(ii) Leave due to serious health condition of family member.
The certification described in subparagraph (A)(i) 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 of the employee expired.
Sec. 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.
(2) Discrimination.
It shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful
by this subchapter.
(b) Interference with proceedings or inquiries.
It shall be unlawful for any person to discharge or in any other manner discriminate
against any individual because such individual -
(1) has filed any charge, or has instituted
or caused to be instituted any proceeding, under or related to this subchapter;
(2) has given, or is about to give, any information
in connection with any inquiry or proceeding relating to any right provided
under this subchapter; or
(3) has testified, or is about to testify,
in any inquiry or proceeding relating to any right provided under this subchapter.
Sec. 2616 Investigative
authority.
(a) In general.
To ensure compliance with the provisions of this subchapter, or any regulation
or order issued under this subchapter, the Secretary shall have, subject to
subsection (c) of this section, the investigative authority provided under section
211(a) of this title.
(b) Obligation to keep and preserve records.
Any employer shall make, keep, and preserve records pertaining to compliance
with this subchapter in accordance with section 211(c) of this title and in
accordance with regulations issued by the Secretary.
(c) Required submissions generally limited
to annual basis. The Secretary shall
not under the authority of this section require any employer or any plan, fund,
or program 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 subchapter or any regulation or order issued pursuant
to this subchapter, or is investigating a charge pursuant to Sec.
2617(b) of this title.
(d) Subpoena powers.
For the purposes of any investigation provided for in this section, the Secretary
shall have the subpoena authority provided for under section 209 of this title.
Sec. 2617 Enforcement.
(a) Civil action by employees.
(1) Liability
Any employer who violates Sec.
2615 of this title shall be liable to any eligible employee 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 of the 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
monetary losses sustained by the employee as a direct result of the
violation, such as the cost of providing care, up to a sum equal to
12 weeks of wages or salary for the employee;
(ii) the interest on the amount described in clause (i) calculated at
the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of
the amount described in clause (i) and the interest described in clause
(ii), except that if an employer who has violated Sec.
2615 of this title proves to the satisfaction of the court that the
act or omission which violated Sec. 2615 of this title
was in good faith and that the employer had reasonable grounds for believing
that the act or omission was not a violation of Sec. 2615
of this title, such court may, in the discretion of the court, reduce
the amount of the liability to the amount and interest determined under
clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment,
reinstatement, and promotion.
(2) Right of action.
An action to recover the damages or equitable relief prescribed in paragraph
(1) may be maintained against any employer (including a public agency) in
any Federal or State court of competent jurisdiction by any one or more employees
for and in behalf of -
(3) Fees and costs.
The court in such an action shall, in addition to any judgment awarded to
the plaintiff, allow a reasonable attorney's fee, reasonable expert witness
fees, and other costs of the action to be paid by the defendant.
(4) Limitations.
The right provided by paragraph (2) to bring an action by or on behalf of
any employee shall terminate -
(A) on the filing of a complaint by the Secretary in an action under subsection
(d) of this section in which restraint is sought of any further delay in
the payment of the amount described in paragraph (1)(A) to such employee
by an employer responsible under paragraph (1) for the payment; or
(B) on the filing of a complaint by the Secretary in an action under subsection
(b) of this section in which a recovery is sought of the damages described
in paragraph (1)(A) owing to an eligible employee by an employer liable
under paragraph (1), unless the action described in subparagraph (A) or
(B) is dismissed without prejudice on motion of the Secretary.
(b) Action by Secretary.
(1) Administrative action.
The Secretary shall receive, investigate, and attempt to resolve complaints
of violations of Sec. 2615 of this title in the same manner
that the Secretary receives, investigates, and attempts to resolve complaints
of violations of sections 206 and 207 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)(1)(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.
(c) Limitation.
(1) In general.
Except as provided in paragraph (2), an action may be brought under this section
not later than 2 years after the date of the last event constituting the alleged
violation for which the action is brought.
(2) Willful violation.
In the case of such action brought for a willful violation of Sec.
2615 of this title, such action may be brought within 3 years of the date
of the last event constituting the alleged violation for which such action
is brought.
(3) Commencement.
In determining when an action is commenced by the Secretary under this section
for the purposes of this subsection, it shall be considered to be commenced
on the date when the complaint is filed.
(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 Sec.
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.
(e) Solicitor of Labor.
The Solicitor of Labor may appear for and represent the Secretary on any litigation
brought under this section.
Sec. 2618 Special rules
concerning employees of local educational agencies.
(a) Application.
(1) In general.
Except as otherwise provided in this section, the rights (including the rights
under section 2614 of this title, which shall extend throughout
the period of leave of any employee under this section), remedies, and procedures
under this subchapter shall apply to -
(A) any "local educational agency" (as defined in section 2891(12) of
title 20) and an eligible employee of the agency; and
(B) any private elementary or secondary school and an eligible employee
of the school.
(2) Definitions.
For purposes of the application described in paragraph (1):
(A) Eligible employee. The term "eligible employee" means an
eligible employee of an agency or school described in paragraph (1).
(B) Employer. The term "employer" means an agency or school
described in paragraph (1).
(b) Leave does not violate certain other Federal
laws. A local educational agency and
a private elementary or secondary school shall not be in violation of the Individuals
with Disabilities Education Act (20 U.S.C. 1400 et seq.), section 794 of this
title), or title VI of the Civil Rights Act of 1964 (42 U.S.C. et seq.), solely
as a result of an eligible employee of such agency or school exercising the
rights of such employee under this subchapter.
(c) Intermittent leave or leave on reduced
schedule for instructional employees.
(1) In general.
Subject to paragraph (2), in any case in which an eligible employee employed
principally in an instructional capacity by any such educational agency or
school requests leave under subparagraph (C) or (D) of Sec.
2612(a)(1) of this title that is foreseeable based on planned medical
treatment and the employee would be on leave for greater than 20 percent of
the total number of working days in the period during which the leave would
extend, the agency or school may require that such employee elect either -
(A) to take leave for periods of a particular duration, not to exceed
the duration of the planned medical treatment; or
(B) to transfer temporarily to an available alternative position offered
by the employer for which the employee is qualified, and that -
(i) has equivalent pay and benefits; and
(ii) better accommodates recurring periods of leave than the regular
employment position of the employee.
(2) Application.
The elections described in subparagraphs (A) and (B) of paragraph (1) shall
apply only with respect to an eligible employee who complies with Sec.
2612(e)(2) of this title.
(d) Rules applicable to periods near conclusion
of academic term. The following rules shall apply with respect to periods
of leave near the conclusion of an academic term in the case of any eligible
employee employed principally in an instructional capacity by any such educational
agency or school:
(1) Leave more than 5 weeks prior to end
of term. If the eligible employee
begins leave under Sec. 2612 of this title more than 5
weeks prior to the end of the academic term, the agency or school may require
the employee to continue taking leave until the end of such term, if -
(2) Leave less than 5 weeks prior to end
of term. If the eligible employee
begins leave under subparagraph (A), (B), or (C) of Sec. 2612(a)(1)
of this title during the period that commences 5 weeks prior to the end of
the academic term, the agency or school may require the employee to continue
taking leave until the end of such term, if -
(3) Leave less than 3 weeks prior to end
of term. If the eligible employee
begins leave under subparagraph (A), (B), or (C) of Sec. 2612(a)(1)
of this title during the period that commences 3 weeks prior to the end of
the academic term and the duration of the leave is greater than 5 working
days, the agency or school may require the employee to continue to take leave
until the end of such term.
(e) Restoration to equivalent employment position.
For purposes of determinations under Sec. 2614(a)(1)(B)
of this title (relating to the restoration of an eligible employee to an equivalent
position), in the case of a local educational agency or a private elementary
or secondary school, such determination shall be made on the basis of established
school board policies and practices, private school policies and practices,
and collective bargaining agreements.
(f) Reduction of amount of liability.
If a local educational agency or a private elementary or secondary school that
has violated this subchapter proves to the satisfaction of the court that the
agency, school, or department had reasonable grounds for believing that the
underlying act or omission was not a violation of this subchapter, such court
may, in the discretion of the court, reduce the amount of the liability provided
for under Sec. 2617(a)(1)(A) of this title to the amount
and interest determined under clauses (i) and (ii), respectively, of such section.
Sec. 2619 Notice.
(a) In general. Each employer shall post
and keep posted, in conspicuous places on the premises of the employer where
notices to employees and applicants for employment are customarily posted, a
notice, to be prepared or approved by the Secretary, setting forth excerpts
from, or summaries of, the pertinent provisions of this subchapter and information
pertaining to the filing of a charge.
(b) Penalty. Any employer that willfully
violates this section may be assessed a civil money penalty not to exceed $100
for each separate offense.
Sec. 2631 Establishment.
There is established a commission to be known
as the Commission on Leave (referred to in this subchapter as the "Commission").
Sec. 2632. Duties
The Commission shall -
(1) conduct a comprehensive study of -
(A) existing and proposed mandatory and voluntary
policies relating to family and temporary medical leave, including policies
provided by employers not covered under this Act;
(B) the potential costs, benefits, and impact
on productivity, job creation and business growth of such policies on employers
and employees;
(C) possible differences in costs, benefits,
and impact on productivity, job creation and business growth of such policies
on employers based on business type and size;
(D) the impact of family and medical leave
policies on the availability of employee benefits provided by employers,
including employers not covered under this Act;
(E) alternate and equivalent State enforcement
of subchapter I of this chapter with respect to employees described in Sec.
2618(a) of this title;
(F) methods used by employers to reduce administrative
costs of implementing family and medical leave policies;
(G) the ability of the employers to recover,
under Sec. 2614(c)(2) of this title, the premiums described
in such section; and
(H) the impact on employers and employees
of policies that provide temporary wage replacement during periods of family
and medical leave.
(2) not later than 2 years after the date on
which the Commission first meets, prepare and submit, to the appropriate Committees
of Congress, a report concerning the subjects listed in paragraph (1).
Sec. 2633 membership.
(a) Composition
(1) Appointments.
The Commission shall be composed of 12 voting members and 4 ex officio members
to be appointed not later than 60 days after February 5, 1993, as follows:
(A) Senators. One Senator shall be appointed by the Majority Leader of
the Senate, and one Senator shall be appointed by the Minority Leader of
the Senate.
(B) Members of House of Representatives. One Member of the House of Representatives
shall be appointed by the Speaker of the House of Representatives, and one
Member of the House of Representatives shall be appointed by the Minority
Leader of the House of Representatives.
(C) Additional members.
(i) Appointment. Two members each shall be appointed by -
(I) the Speaker of the House of Representatives;
(II) the Majority Leader of the Senate;
(III) the Minority Leader of the House of Representatives; and
(IV) the Minority Leader of the Senate.
(Ii) Expertise. Such members shall be appointed by virtue of
demonstrated expertise in relevant family, temporary disability, and labor
management issues. Such members shall include representatives of employers,
including employers from large businesses and from small businesses.
(2) Ex officio members.
The Secretary of Health and Human Services, the Secretary of Labor, the Secretary
of Commerce, and the Administrator of the Small Business Administration shall
serve on the Commission as nonvoting ex officio members.
(b) Vacancies.
Any vacancy on the Commission shall be filled in the manner in which the original
appointment was made. The vacancy shall not affect the power of the remaining
members to execute the duties of the Commission.
(c) Chairperson and vice chairperson.
The Commission shall elect a chairperson and a vice chairperson from among the
members of the Commission.
(d) Quorum.
Eight members of the Commission shall constitute a quorum for all purposes,
except that a lesser number may constitute a quorum for the purpose of holding
hearings.
Sec. 2634 Compensation.
(a) Pay.
Members of the Commission shall serve without compensation.
(b) Travel expenses.
Members of the Commission shall be allowed reasonable travel expenses, including
a per diem allowance, in accordance with section 5703 of title 5 when performing
duties of the Commission.
Sec. 2635 Powers.
(a) Meetings.
The Commission shall first meet not later than 30 days after the date on which
all members are appointed, and the Commission shall meet thereafter on the call
of the chairperson or a majority of the members.
(b) Hearings and sessions.
The Commission may hold such hearings, sit and act at such times and places,
take such testimony, and receive such evidence as the Commission considers appropriate.
The Commission may administer oaths or affirmations to witnesses appearing before
it.
(c) Access to information.
The Commission may secure directly from any Federal agency information necessary
to enable it to carry out this subchapter, if the information may be disclosed
under section 552 of title 5. Subject to the previous sentence, on the request
of the chairperson or vice chairperson of the Commission, the head of such agency
shall furnish such information to the Commission.
(d) Use of facilities and services.
Upon the request of the Commission, the head of any Federal agency may make
available to the Commission any of the facilities and services of such agency.
(e) Personnel from other agencies.
On the request of the Commission, the head of any Federal agency may detail
any of the personnel of such agency to serve as an Executive Director of the
Commission or assist the Commission in carrying out the duties of the Commission.
Any detail shall not interrupt or otherwise affect the civil service status
or privileges of the Federal employee.
(f) Voluntary service.
Notwithstanding section 1342 of title 31, the chairperson of the Commission
may accept for the Commission voluntary services provided by a member of the
Commission.
Sec. 2636 Termination.
The Commission shall terminate 30 days after the
date of the submission of the report of the Commission to Congress.
Sec. 2651 Effect on other laws.
(a) Federal and State anti-discrimination
laws. Nothing in this Act or any amendment
made by this Act shall be construed to modify or affect any Federal or State
law prohibiting discrimination on the basis of race, religion, color, national
origin, sex, age, or disability.
(b) State and local laws.
Nothing in this Act or any amendment made by this Act shall be construed to
supersede any provision of any State or local law that provides greater family
or medical leave rights than the rights established under this Act or any amendment
made by this Act.
Sec. 2652 Effect on
existing employment benefits.
(a) More protective.
Nothing in this Act or any amendment made by this Act shall be construed to
diminish the obligation of an employer to comply with any collective bargaining
agreement or any employment benefit program or plan that provides greater family
or medical leave rights to employees than the rights established under this
Act or any amendment made by this Act.
(b) Less protective.
The rights established for employees under this Act or any amendment made by
this Act shall not be diminished by any collective bargaining agreement or any
employment benefit program or plan.
Sec. 2653 Encouragement
of more generous leave policies.
Nothing in this Act or any amendment made by this
Act shall be construed to discourage employers from adopting or retaining leave
policies more generous than any policies that comply with the requirements under
this Act or any amendment made by this Act.
Sec. 2654 Regulations.
The Secretary of Labor shall prescribe such regulations
as are necessary to carry out subchapter I of this chapter and this subchapter
not later than 120 days after February 5, 1993.
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