Recently, the Family and Medical Leave Act (FMLA) celebrated its 10th anniversary. Since its passage in 1993, millions of employees have benefited from the law’s protections. Unfortunately, the many positives that the law offers are often overshadowed by the headaches and confusion it causes. Arguments over just who and what Congress meant the law to cover have been plentiful, resulting in conflicting judicial interpretations, and pitting proponents of FMLA expansion against those in favor of curtailing the law’s reach. Debate about the FMLA is at an all-time high these days, as everyone from Congress to the Supreme Court to the U.S. Department of Labor (DOL) itself seems to have something to say about the future of this law. Here are a few of the highlights.

The U.S. Supreme Court entered the fray for the first time last year, invalidating a DOL regulation that states that if an employer fails to designate leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement (Ragsdale v. Wolverine Worldwide, Inc., 122 S.Ct. 1155 (2002)). This term, the Court is deciding its second FMLA case, Nevada Department of Human Resources v. Hibbs, No. 01-1368. At issue is whether state employees are allowed to sue their employers for violating the FMLA. This case is being anxiously watched by many; if the Court rules against the employee, the FMLA’s reach could be sharply limited.

S 18: The Right Start Act of 2003. Sen. Thomas Daschle (D-S.D.) introduced this bill on January 7, 2003. The bill is a combination of several early-childhood and FMLA expansion bills that did not receive any action in the last congressional session. Among its provisions, the bill would increase the availability and affordability of child care and early-learning services, encourage healthy eating habits and physical activity, facilitate parental involvement, and allow leave for domestic violence issues. It would also:

• Significantly expand FMLA coverage from employers with 50 or more employees to employers with 25 or more.
  
  
• Amend the FMLA to allow parents 24 hours in any 12-month period to participate in an academic activity of their child or family literacy- training program.
  
  
• Provide paid leave to federal employees for up to 6 weeks in any 12-month period.

As of this writing, the bill remains in Senate committee.

S 304: The Family and Medical Leave Expansion Act. This bill was introduced by Sen. Christopher Dodd (D-Conn.) on February 5, 2003. Its main purpose is to expand the scope of the FMLA. The bill includes many of the same provisions as S 18. The bill would:

• Establish a program to provide grants to states to provide partial or full wage replacement (a.k.a. FIRST insurance) to new parents.
  
  
• Significantly expand FMLA coverage from employers with 50 or more employees to employers with 25 or more.
  
  
• Provide leave to employees addressing domestic violence and its effects.
  
  
• Provide paid leave to federal employees for up to 6 weeks in any 12-month period.
  
  
• Amend the FMLA to allow parents 24 hours in any 12-month period to participate in an academic activity of their child or family literacy-training program.

As of this writing, the bill remains in Senate committee.

HR 35: The Family and Medical Leave Clarification Act. Rep. Judy Biggert (R-Ill.) introduced this bill on January 7, 2003, to combat perceived shortcomings of the FMLA. The bill would:

• Redefine "serious health condition" to exclude short-term illnesses, injuries, impairments, or conditions for which treatment and recovery are very brief and to include a list of illnesses of injuries that would be covered by the FMLA.
  
  
• Permit employers to require that employees take intermittent leave in increments of up to one-half of a workday.
  
  
• Allow employers to require employees requesting FMLA leave to do so in a timely manner. In the case of foreseeable leave, this means written application within five working days after providing advance notice to the employer. If the leave is unforeseeable, the employee must notify the employer orally of the need for the leave no later than the day the leave begins and submit written application within five days after providing notice, unless physically or mentally incapable of doing so.
  
  
• Allow employers to require employees to choose between paid absence and unpaid FMLA leave.

As of this writing, the bill remains in House committee.

Prompted by the Supreme Court’s Ragsdale decision, as well as issues raised by other judicial decisions, DOL has decided to revise the regulations it crafted to implement the FMLA. DOL’s Wage and Hour Division, the agency in charge of implementing the FMLA, is seeking feedback and ideas on how to revise the regulatory provisions affected by Ragsdale. The agency hopes to have the revision process completed within a year.

So …?

On its 10th anniversary, the FMLA is generating as much buzz as it ever has. In the midst of the chatter and confusion, however, one thing remains constant – employers and employees continue to be baffled and overwhelmed by the law’s requirements. It remains to be seen what the activity slated for the FMLA in 2003 will bring, but stay tuned...