FMLA Subject to Major Changes

There are five new employment law bills expected in 2010 that could significantly expand The Family and Medical Leave Act (“FMLA”) and change how you manage your paid and unpaid leave procedures. All of these bills have a good chance of becoming law under comprehensive family and medical leave legislation known as The Balancing Act of 2009.  These changes may also significantly expand the number of employers covered under the Act.


  • The Healthy Families Act could dramatically change paid sick leave policies, and could also give employees paid time off for a doctor’s appointment
  • The Family Leave Insurance Act of 2009 could end up requiring employers to provide eight weeks of paid leave to employees who need to care for a sick family member or new child
  • The Family and Medical Leave Enhancement Act of 2009 could expand the current FMLA to include employee leave for attending a child’s extracurricular activities
  • The Family and Medical Leave Act (FMLA) could be amended through The Domestic Violence Act and The Balancing Act of 2009 to give victims of domestic violence FMLA-protected leave
  • The Military Family Leave Act might amend the USERRA by granting temporary annual leave to the military families of service members

Healthy Families Act —originally introduced on  4/27/2005— would require certain employers, who employ 15 or more employees for each working day during 20 or more workweeks a year, to provide a minimum paid sick leave of: (1) seven days annually for those who work at least 30 hours per week; and (2) a prorated annual amount for those who work less than 30 but at least 20 hours a week, or less than 1,500 but at least 1,000 hours per year. The purpose of the act is to allow employees to use such leave to meet their own medical needs or to care for the medical needs of certain family members.

This Act was introduced to the House on 5/18/2009 as H.R.2460, and on  6/11/2009 was referred to the Subcommittee on Workforce Protections.  It was introduced to Congress on 3/15/07 as S.910.  You can read more about it here and in a May, 2009 NY Times article here.

Family Leave Insurance Act of 2009 — the Family and Medical Leave Act of 1993 (known to most of us simply as “FMLA”) was created to assist employees in balancing the demands of their jobs with their family responsibilities. However, many eligible employees are not able to utilize the benefits of the FMLA because FMLA leave is unpaid.  According to a 2000 survey on the FMLA by the Department of Labor, among those employees who need FMLA leave and don’t take it, 78 percent don’t take it because they can’t afford it.

This legislation would create a federal insurance fund to provide employees with twelve weeks of paid family and medical leave. The fund, which is designed to be established and administered by the Secretary of Labor, would provide benefits for employees taking leave under the same conditions of FMLA, plus some additional conditions, such as a qualifying emergency arising from the fact that a spouse, child, or parent of the employee is on active military duty, or to care for a family member who is a covered service member.

Under the benefits proposal, as it stands now, pay for each day of an eligible employee’s FMLA leave will be based on the employee’s annual income and calculated as a percentage of his or her daily earnings.  Most employees would contribute 0.2 percent of their annual earnings, and employers would match employee payments. The Insurance Program will reimburse employers for paying employees while they are on leave. Employees may use other employer-provided paid sick leave benefits to supplement those provided under the Insurance Program.

This Act is being hailed by gay rights groups because H.R. 1723 would also grant FMLA leave to employees who need to care for an ill domestic partner or the child of a domestic partner –thereby affording the protections of the FMLA to lesbian, gay, bisexual and transgender (LGBT) employees.

This legislation was introduced to the House on 3/25/2009 as H.R.1723, and was  referred to the Subcommittee on Workforce Protections on 5/14/2009. 

Family and Medical Leave Enhancement Act of 2009 — this legislation was introduced into Congress on  9/29/2008 as H.R. 824 by Rep. Carolyn Maloney.  On May 4, 2009 it was referred to the Subcommittee on Federal Workforce, Post Office, and the District of Columbia.

It’s purpose is to amend the Family and Medical Leave Act of 1993 and Title 5, United States Code, to allow employees to take, as additional leave, parental involvement leave to participate in or attend their children’s and grandchildren’s educational and extracurricular activities, and to clarify that leave may be taken for routine family medical needs and to assist elderly relatives, and for other purposes.

An employee eligible to take parental involvement or family wellness leave under this Act would be permitted to take up to 4 hours of leave in any 30-day period, not to exceed 24 hours during any 12-month period. This leave is in addition to other types of permissible leave.

Perhaps the most significant impact of this Act would be the expansion of who would be considered an employee “eligible” to take FMLA leave. Under this legislation, the FMLA would apply to employers with 25 or more employees within the prescribed radius, not 50 as is the current law. This expanded definition would greatly increase the number of employers that would be impacted by this law. 

The Domestic Violence Act — Also known as The Violence Against Women Act, this legislation  was introduced in Congress in January 1991 by Senator Joseph Biden of Delaware.  The bill was made part of the Violent Crime Control and Law Enforcement Act and was signed into law on September 13, 1994, by President Bill Clinton.  In 1996 and 2000 additions to the Act were passed, to further recognize domestic violence as a national problem and provide federal assistance to help overburdened state and local criminal justice systems.

 It gets a little confusing here, because there is an attempt to bring together disparate pieces of legislation which are or might individually impact the FMLA.  Currently, for example, victims of domestic violence do not qualify for coverage under FMLA, although they do have rights and protections established under The Domestic Violence Act. 

The Balancing Act of 2009 (H.R. 3047) was introduced to Congress on June 25, 2009, by Representative Lynn Woolsey.  It is designed to  incorporate the various separate pending legislative proposals to alter the FMLA,  many described above, into one bill. 

For example, it amends Titles I and II of the FMLA to allow eligible employees to take up to 12 weeks of FMLA leave during a 12-month leave year in order to care for the family member of the employee, if such family member is addressing domestic violence, sexual assault, or stalking or their effects.  It covers time for a victim to seek medical attention, recover from injuries, seek legal assistance or remedies, communicate with the police or an attorney, attend support groups, obtain psychological counseling, participate in safety planning or other actions to increase safety, including arranging for temporary or permanent relocation. 

You can gain a little more understanding from this blog post.

Military Family Leave Act of 2009 — This Act was introduced into Congress as H.R. 3257 on Jul 17, 2009.  It was immediately referred to the House Committee on Veterans’ Affairs. 

The Military Family Leave Act of 2009 allows those whose family members have received notification of impending active military duty to spend time with and support their family members by giving them two weeks un-paid leave prior to and after deployment.   The FMLA excludes many people from taking leave under these circumstances, such as those who work part time or are employed by a company with fewer than 50 employees. The Military Family Leave Act of 2009 would make sure that everyone is given this right, regardless of the hours they work or the size of the company that employs them.

Unlike FMLA leave of 12 weeks, this legislation only extends two workweeks of unpaid leave. This lower benefit level is designed to achieve a delicate balance between the needs of small businesses with the needs of American families.

I subscribe to a number of blogs and eNewsletters which cover employment law issues, so that I can consistently provide information and resources (and referral to attorneys when needed) to PBA members and clients.  That saves you, the reader, time and effort.  So keep tuned.  I will post additional information as it becomes available.



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