Sen. Feingold Vows To Continue Push For FMLA Expansion

In November, a congressional conference committee stripped the Feingold amendment from the appropriations bill referenced in this article. However, this issue may not be over yet. Read more below.

The U.S. Senate recently adopted by unanimous consent an amendment offered by Sen. Russ Feingold (D-WI) that would significantly alter the benefits available under the Family and Medical Leave Act.

The approval came during the Senate's consideration of the $87 billion spending package for rebuilding Iraq (S. 1689).

The amendment, identical to S. 683, would apply to family members (spouses, sons, daughters, or parents) of members of the armed services who are called to active duty or who are notified that they will be activated in support of a contingency operation.

It gives the family members the right to take job-protected FMLA leave for virtually any absence, so long as it is related to the service member's absence.

However, in November, a congressional conference committee stripped the amendment from the appropriations bill.

While the conference members removed the proposal, Sen. Feingold said he will "continue to push for this small measure of relief to the families of our military personnel who are being deployed for military action against Iraq and the fight against terrorism."

Since the amendment was proposed as an attachment to an appropriations bill on the Senate floor, it did not go through the regular committee hearing and review process.

It had not had the benefit of a single House or Senate hearing.

The far-reaching and complicated employment provision was clearly not related to the Iraq and Afghanistan security and reconstruction legislation.

Though the amendment has been removed, it came close to slipping through the process. Usually where there is one attempt like this, there will be anotheR... as Sen. Feingold has promised.

Following in this article is some more detailed information about the proposed amendment, a statement by Sen. Feingold, and a letter from U.S. Chamber of Commerce to the Senate about the proposed amendment.

Some Details Of The Proposed Amendment

The Feingold amendment would significantly expand the Family and Medical Leave Act (FMLA) to allow up to 12 weeks of leave for military family members to address "issues relating to or resulting from such family member's' active duty service or pending deployment", including Reserve duty throughout the term of the deployment or service.

The entitlement would also apply to government (civil service) employees.

The 12 weeks of leave does not need to be taken continuously, but can be taken on an intermittent basis.

Here are some of the actual texts for the changes to be made:

TITLE III--LEAVE FOR MILITARY FAMILIES
SEC. 3001. SHORT TITLE.
This title may be cited as the "Military Families Leave Act of 2003".

SEC. 3002. GENERAL REQUIREMENTS FOR LEAVE.
(a) ENTITLEMENT TO LEAVE. --Section 102(a) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)) is amended by adding at the end the following:

(3) ENTITLEMENT TO LEAVE DUE TO FAMILY MEMBER'S ACTIVE DUTY.

(A) IN GENERAL. --Subject to section 103(f), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period because a spouse, son, daughter, or parent of the employee is a member of the Armed Forces--
(i) on active duty in support of a contingency operation; or
(ii) notified of an impending call or order to active duty in support of a contingency operation.

(B) CONDITIONS AND TIME FOR TAKING LEAVE. --An eligible employee shall be entitled to take leave under subparagraph (A)--
(i) while the employee's spouse, son, daughter, or parent (referred to in the subparagraph as the 'family member') is on active duty in support of a contingency operation, and, if the family member is a member of a reserve component of the Armed Forces, beginning when such family member receives notification of an impending call or order to active duty in support of a contingency operation; and
(ii) only for issues relating to or resulting from such family member's--
(I) service on active duty in support of a contingency operation; and
(II) if a member of a reserve component of the Armed Forces--
(aa) receipt of notification of an impending call or order to active duty in support of a contingency operation; and
(bb) service on active duty in support of such operation.

(4) LIMITATION. --No employee may take more than a total of 12 workweeks of leave under paragraphs (1) and (3) during any 12-month period.''

(3) NOTICE FOR LEAVE DUE TO FAMILY MEMBER'S ACTIVE DUTY. -An employee who intends to take leave under subsection (a)(3) shall provide such notice to the employer as is practicable.''

SEC. 3003. (The same as above applies for Civil Service Employees.)

Excerpt From Sen. Feingold's Statement

Here is an excerpt from the statement of U.S. Senator Russ Feingold on the Final Passage of S. 1689, the Iraq and Afghanistan Emergency Supplemental Appropriations Bill on October 17, 2003.

(Note: the rest of the statement not included here concerned his objection to the bulk of the bill "in principle", even though he voted for it.)

"I also offered an amendment to help alleviate some of the difficulties faced by families of military personnel deployed or preparing to deploy for a contingency operation.

My amendment allows a spouse, son, daughter, or parent who already qualifies for benefits under the Family and Medical Leave Act to use their benefits for issues arising from one additional set of circumstances - the deployment of a family member.

Our military families - be they active duty, Guard, or Reserve - are coping with tremendous strains and a great deal of unpredictability. Longstanding childcare arrangements can be suddenly upended; in a matter of days, legal powers may need to be transferred to allow a spouse to maintain control of the home while his or her partner deploys.

This amendment has been endorsed by the Military Officers Association of America, the Enlisted Association of the National Guard of the United States, and the National Partnership for Women and Families.

I am delighted that it was adopted, and I hope it brings some measure of relief to the families who are sacrificing so much."

Letter From The Chamber Of Commerce To U.S. Senate

October 16, 2003

To the Members of the United States Senate:

I am writing on behalf of the U.S. Chamber of Commerce, the world's largest business federation, representing more than three million businesses and organizations of every size, sector, and region, to express our concern over an amendment offered by Sen. Feingold (Number 1852) to the Emergency Supplemental Appropriations Bill (S. 1689).

The Chamber appreciates the intent of the amendment, to provide protection for family members of those called to serve in military contingency operations. However, the amendment, which would modify the Family and Medical Leave Act (FMLA), poses several practical problems that should be carefully examined by the Health, Education, Labor and Pensions Committee to be sure that it does not create any unintended consequences. As you may know, implementation of the FMLA has proven difficult in a number of important respects, as highlighted in numerous Congressional hearings, and has caused excessive litigation, including 68 court decisions questioning the validity of the FMLA implementing regulations.

The Chamber is concerned that adopting the Feingold amendment without fully vetting its provisions could lead to further difficulties for employees and employers as they try to comply with the FMLA. We would be happy to discuss these issues with you in greater detail at your convenience.

Sincerely,
R. Bruce Josten
Executive Vice President, Government Affairs
U.S. Chamber of Commerce