More Is More: Congress Aims to Amend the FMLA to Provide More Employees with More Coverage and More Benefits

There has been significant activity in Congress this summer aimed at amending the Family and Medical Leave Act of 1993 (FMLA). Employers will recall that, in early 2009, the Department of Labor issued new regulations overhauling the FMLA playing field by creating new rules affecting eligibility, modifying notice requirements, expanding the definition of “serious health condition,” and addressing certification, reinstatement and other issues. If the bills discussed below receive support, we can expect to see more changes in the near future providing greater rights to employees under the FMLA.

Family and Medical Leave Inclusion Act

On June 28, 2011, Sen. Dick Durbin introduced a bill (S. 1283), entitled the “Family and Medical Leave Inclusion Act,” which would amend the FMLA to grant eligible employees leave rights to care for a same-sex spouse, domestic partner, parent-in-law, sibling, grandchild, or grandparent who has a serious health condition. This amendment would greatly expand the reach of the FMLA, as it presently allows such leave to care for a spouse, son, daughter or parent only.

Parental Bereavement Act

Two weeks later, on July 13, Sen. Jon Tester introduced a bill (S. 1358), entitled the “Parental Bereavement Act of 2011,” which would provide FMLA leave because of the death of an eligible employee’s son or daughter. Though the bill does not limit the amount of FMLA leave that may be taken for this reason – suggesting an eligible employee would be entitled to use the full 12-week allotment in the case of the death of a child – the bill provides that an employee may not take leave intermittently or on a reduced leave schedule for this purpose, unless the employee and employer agree otherwise.

Family Leave Insurance Act

What is perhaps the most notable proposed amendment to the FMLA originated in the House of Representatives. On June 23, Rep. Lynn Woolsey introduced a 201-page bill (H.R. 2346), the first 119 pages of which would amend the FMLA in a number of significant ways.

First, the bill requires a mandatory “Insurance Program” (subject to exceptions for self-employed individuals and small employers), subtitled the “Family Leave Insurance Act.” It would allow eligible employees to receive paid leave for any of FMLA’s qualifying reasons, which this bill would expand to include leave to care for the employee’s domestic partner, grandchild, grandparent or sibling with a serious health condition, similar to Sen. Durbin’s proposed Family and Medical Leave Inclusion Act.

The “Family Leave Insurance Act” section of the bill also relaxes the eligibility standards currently in force, by redefining an eligible employee as one who has been employed for at least six months (instead of the current 12 months); worked only 625 hours or more in the prior six months (instead of 1,250 hours in the prior 12 months); and whose employer employs a mere two or more employees (instead of 50 employees within a 75-mile radius). Only a “small employer” – defined as having at least two but not more than 19 employees – can opt out of this Insurance Program.

Under this proposed Family Leave Insurance Act, eligible employees would be entitled to receive between 40% and 100% of their daily earnings while on leave, depending on their level of annual income. The bill would require the creation of an “Insurance Fund” that would pay employees for their time spent on FMLA leave. The Insurance Fund would be funded by imposing a family and medical leave tax on both individuals and employers equal to .02% of the employee’s wages (or .01% in the case of a small employer). Self-employed individuals would also be taxed, at .04% of their income, if they elect to participate in the Insurance Program.

Family and Medical Leave Enhancement Act

H.R. 2346 also would provide expanded leave for parental involvement and family wellness; these changes are found in the bill’s provision subtitled the “Family and Medical Leave Enhancement Act,” which would allow eligible employees FMLA leave to: attend their child’s or grandchild’s school- or community-sponsored activity; meet the employee’s or his/her family member’s medical care needs (e.g., attend medical or dental appointments); or attend to the needs of elderly family members (e.g., visit them in nursing homes and group homes). Under this provision, eligible employees would be those whose employers have at least 25 employees (instead of the current 50 employees within a 75-mile radius). The bill limits leave for these purposes to a maximum of four hours during any 30-day period and 24 hours during any 12-month period.

Domestic Violence Leave Act

Another significant change found in H.R. 2346 is subtitled the “Domestic Violence Leave Act,” which would provide FMLA leave in order to address the employee’s or his/her family member’s “domestic violence, sexual assault or stalking and their effects.” This provision of the bill would grant eligible employees leave to: seek medical attention; obtain legal assistance, attend support groups for victims; seek counseling; or participate in actions to increase safety or that are necessitated by the domestic violence, sexual assault or stalking.

Healthy Families Act

Finally, H.B. 2346 includes a provision, subtitled the “Healthy Families Act,” which would permit employees to earn up to 56 hours of paid sick time per year, accruing at the rate of 1 hour of paid sick time for every 30 hours worked. Employees would be able to carry over earned but unused paid sick time into the next calendar year. Though the bill does not require payment of earned paid sick time upon termination, it does provide that, if an employee is separated from employment but rehired within 12 months, the employer would be required to reinstate the employee’s previously-earned paid sick time.

As employers monitor the FMLA developments, they should recall too that many states have already enacted statutes or regulations that allow leave for activities similar to those contemplated by H.B. 2346. Illinois, for example, enacted the School Visitation Rights Act and the Victims’ Economic Security and Safety Act, which grant eligible employees unpaid leave for reasons similar to those discussed in H.R. 2346’s proposed Family and Medical Leave Enhancement Act and Domestic Violence Leave Act, respectively. The good news for employers already subject to expansive state leave laws is that, should H.R. 2346 become law, employers would likely be able to require time spent for activities qualifying for leave under both the FMLA and state law to run concurrently with each other, unless expressly prohibited.

We will continue to monitor the status of these bills. In the meantime, if you have any questions concerning the bills, the FMLA or any other employment-related matter, please contact one of the members of Neal Gerber Eisenberg’s Labor & Employment Practice Group.