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Notes

29 U.S.C. §§ 2611–2615

5 sections in range

§2611. Definitions

29 U.S.C. § 2611

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 section 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.
(D)
Airline flight crews—
(i)
Determination— For purposes of determining whether an employee who is a flight attendant or flight crewmember (as such terms are defined in regulations of the Federal Aviation Administration) meets the hours of service requirement specified in subparagraph (A)(ii), the employee will be considered to meet the requirement if—
(I)
the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under section 2612 of this title; and
(II)
the employee has worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.
(ii)
File— Each employer of an employee described in clause (i) shall maintain on file with the Secretary (in accordance with such regulations as the Secretary may prescribe) containing information specifying the applicable monthly guarantee with respect to each category of employee to which such guarantee applies.
(iii)
Definition— In this subparagraph, the term “applicable monthly guarantee” means—
(I)
for an employee described in clause (i) other than an employee on reserve status, the minimum number of hours for which an employer has agreed to schedule such employee for any given month; and
(II)
for an employee described in clause (i) who is on reserve status, the number of hours for which an employer has agreed to pay such employee on reserve status for any given month,

as established in the applicable collective bargaining agreement or, if none exists, in the employer’s policies.

(E)
GAO employees— In the case of an employee of the Government Accountability Office, the requirements of subparagraph (A) shall not apply with respect to leave under section 2612(a)(1)(A) or (B) of this title.
(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;
(iii)
includes any “public agency”, as defined in section 203(x) of this title; and
(iv)
includes the Government Accountability Office and the Library of Congress.
(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.
(14)
Covered active duty— The term “covered active duty” means—
(A)
in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B)
in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10.
(15)
Covered servicemember— The term “covered servicemember” means—
(A)
a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B)
a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
(16)
Outpatient status— The term “outpatient status”, with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to—
(A)
a military medical treatment facility as an outpatient; or
(B)
a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
(17)
Next of kin— The term “next of kin”, used with respect to an individual, means the nearest blood relative of that individual.
(18)
Serious injury or illness— The term “serious injury or illness”—
(A)
in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
(B)
in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
(19)
Veteran— The term “veteran” has the meaning given the term in section 101 of title 38.
Notes, amendments, and revision history

(Pub. L. 103–3, title I, § 101, Feb. 5, 1993, 107 Stat. 7; Pub. L. 104–1, title II, § 202(c)(1)(A), Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–181, div. A, title V, § 585(a)(1), Jan. 28, 2008, 122 Stat. 128; Pub. L. 111–84, div. A, title V, § 565(a)(1)(A), (2), (3), Oct. 28, 2009, 123 Stat. 2309, 2310; Pub. L. 111–119, § 2(a), Dec. 21, 2009, 123 Stat. 3476; Pub. L. 116–92, div. F, title LXXVI, § 7604(b), Dec. 20, 2019, 133 Stat. 2308.)

Editorial Notes

Amendments

2019—Par. (2)(E). Pub. L. 116–92 added subpar. (E).

2009—Par. (2)(D). Pub. L. 111–119 added subpar. (D).

Par. (14). Pub. L. 111–84, § 565(a)(1)(A)(i), added par. (14) and struck out former par. (14). Prior to amendment, text read as follows: “The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10.”

Par. (15). Pub. L. 111–84, § 565(a)(2), amended par. (15) generally. Prior to amendment, text read as follows: “The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Pub. L. 111–84, § 565(a)(1)(A)(ii), redesignated par. (16) as (15) and struck out former par. (15). Prior to amendment, text read as follows: “The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10.”

Pars. (16), (17). Pub. L. 111–84, § 565(a)(1)(A)(ii), redesignated pars. (17) and (18) as (16) and (17), respectively. Former par. (16) redesignated (15).

Par. (18). Pub. L. 111–84, § 565(a)(3), added par. (18) and struck out former par. (18). Prior to amendment, text read as follows: “The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”

Pub. L. 111–84, § 565(a)(1)(A)(ii), redesignated par. (19) as (18). Former par. (18) redesignated (17).

Par. (19). Pub. L. 111–84, § 565(a)(3), added par. (19).

Pub. L. 111–84, § 565(a)(1)(A)(ii), redesignated par. (19) as (18).

2008—Pars. (14) to (19). Pub. L. 110–181 added pars. (14) to (19).

2004—Par. (4)(A)(iv). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

1995—Par. (4)(A)(iv). Pub. L. 104–1 added cl. (iv).

Statutory Notes and Related Subsidiaries

Effective Date of 2019 Amendment

Pub. L. 116–92, div. F, title LXXVI, § 7604(c), Dec. 20, 2019, 133 Stat. 2308, provided that: “The amendments made by this section [amending this section and section 2612 of this title] shall not be effective with respect to any birth or placement occurring before October 1, 2020.”

Effective Date of 1995 Amendment

Amendment by Pub. L. 104–1 effective one year after transmission to Congress of the study under section 1371 of Title 2, The Congress, see section 1312(f)(2) of Title 2. The study required under section 1371 of Title 2, dated Dec. 31, 1996, was transmitted to Congress by the Board of Directors of the Office of Compliance on Dec. 30, 1996.

Effective Date

Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agreement, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title.

Regulations

Pub. L. 111–84, div. A, title V, § 565(a)(5), Oct. 28, 2009, 123 Stat. 2311, provided that: “In prescribing regulations to carry out the amendments made by this subsection [amending this section and sections 2612 and 2613 of this title], the Secretary of Labor shall consult with the Secretary of Defense and the Secretary of Veterans Affairs, as applicable.”

FMLA: Including Military Service in Determining Eligibility

Pub. L. 118–31, div. A, title XI, § 1114(b), Dec. 22, 2023, 137 Stat. 432, provided that: In general.—A covered employee who has completed 12 months of service which qualifies as honorable active service in the Army, Navy, Air Force, Space Force, or Marine Corps of the United States shall be deemed to have met the service requirement in section 101(1)(A) [probably should be 101(2)(A)] of the Family and Medical Leave Act of 1993 [29 U.S.C. 2611(2)(A)], notwithstanding the requirements of such section 101(1)(A). Covered employee defined.—In this subsection, the term ‘covered employee’— includes— any Federal employee eligible for family and medical leave under the Family and Medical Leave Act of 1993 [29 U.S.C. 2601 et seq.] based on their status as such an employee; any Federal employee covered by the Congressional Accountability Act of 1995 [2 U.S.C. 1301 et seq.] eligible for family and medical leave by operation of section 202 of such Act [2 U.S.C. 1312]; any Federal employee of the Executive Office of the President eligible for family and medical leave by operation of section 412 of title 3, United States Code; and any non-judicial employee of the District of Columbia courts and any employee of the District of Columbia Public Defender Service; and does not include any member of the Commissioned Corps of the Public Health Service or the Commissioned Corps of the National Oceanic and Atmospheric Administration, [sic]”

§2612. Leave requirement

29 U.S.C. § 2612

(a)
In general—
(1)
Entitlement to leave— Subject to section 2613 of this title and subsection (d)(3), 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.
(E)
Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
(F)
During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.
(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.
(3)
Servicemember family leave— Subject to section 2613 of this title, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.
(4)
Combined leave total— Subject to subsection (d)(3), during the single 12-month period described in paragraph (3), an eligible employee shall be entitled to a combined total of 26 workweeks of leave under paragraphs (1) and (3). Nothing in this paragraph shall be construed to limit the availability of leave under paragraph (1) during any other 12-month period.
(5)
Calculation of leave for airline flight crews— The Secretary may provide, by regulation, a method for calculating the leave described in paragraph (1) with respect to employees described in section 2611(2)(D) of this title.
(b)
Leave taken intermittently or on reduced leave schedule—
(1)
In general— Leave under subparagraph (A) or (B) of subsection (a)(1) 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), and subsection (b)(5) or (f) (as appropriate) of section 2613 of this title, leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) may be taken intermittently or on a reduced leave schedule when medically necessary. Subject to subsection (e)(3) and section 2613(f) of this title, leave under subsection (a)(1)(E) may be taken intermittently or on a reduced leave schedule. 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) 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) or under subsection (a)(3), 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—
(A)
has equivalent pay and benefits; and
(B)
better accommodates recurring periods of leave than the regular employment position of the employee.
(c)
Unpaid leave permitted— Except as provided in subsection (d), leave granted under subsection (a) (other than certain periods of leave under subsection (a)(1)(F)) 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 (or 26 workweeks in the case of leave provided under subsection (a)(3)), the additional weeks of leave necessary to attain the 12 workweeks (or 26 workweeks, as appropriate) 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), (C), or (E) of subsection (a)(1) 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) 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. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the 26-week period of such leave under such subsection, except that nothing in this subchapter requires an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave.
(3)
Special rule for GAO employees—
(A)
Substitution of paid leave— An employee of the Government Accountability Office may elect to substitute for any leave without pay under subparagraph (A) or (B) of subsection (a)(1) any paid leave which is available to such employee for that purpose.
(B)
Amount of paid leave— The paid leave that is available to an employee of the Government Accountability Office for purposes of subparagraph (A) is—
(i)
the number of weeks of paid parental leave in connection with the birth or placement involved that corresponds to the number of administrative workweeks of paid parental leave available to employees under section 6382(d)(2)(B)(i) of title 5; and
(ii)
during the 12-month period referred to in subsection (a)(1) and in addition to the administrative workweeks described in clause (i), any additional paid vacation, personal, family, medical, or sick leave provided by such employer.
(C)
Limitation— Nothing in this section shall be considered to require or permit an employer to require that an employee first use all or any portion of the leave described in subparagraph (B)(ii) before being allowed to use the paid parental leave described in clause (i) of subparagraph (B).
(D)
Additional rules— Paid parental leave under subparagraph (B)(i)—
(i)
shall be payable from any appropriation or fund available for salaries or expenses for positions with the Government Accountability Office;
(ii)
if not used by the employee of such employer before the end of the 12-month period (as referred to in subsection (a)(1)) to which it relates, shall not accumulate for any subsequent use; and
(iii)
shall apply without regard to the limitations in subparagraph (E), (F), or (G) of section 6382(d)(2) of title 5 or section 2614(c)(2) of this title.
(4)
Special rule for Library of Congress employees— Consistent with section 1301(a)(3)(J) of title 2, the rights and protections established by sections 2611 through 2615 of this title, including section 2612(d)(3), shall apply to employees of the Library of Congress under section 1312 of title 2.
(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) 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) or under subsection (a)(3) 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, parent, or covered servicemember 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.
(3)
Notice for leave due to covered active duty of family member— In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.
(f)
Spouses employed by same employer—
(1)
In general— In any case in which a husband and wife entitled to leave under subsection (a) 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—
(A)
under subparagraph (A) or (B) of subsection (a)(1); or
(B)
to care for a sick parent under subparagraph (C) of such subsection.
(2)
Servicemember family leave—
(A)
In general— The aggregate number of workweeks of leave to which both that husband and wife may be entitled under subsection (a) may be limited to 26 workweeks during the single 12-month period described in subsection (a)(3) if the leave is—
(i)
leave under subsection (a)(3); or
(ii)
a combination of leave under subsection (a)(3) and leave described in paragraph (1).
(B)
Both limitations applicable— If the leave taken by the husband and wife includes leave described in paragraph (1), the limitation in paragraph (1) shall apply to the leave described in paragraph (1).
Notes, amendments, and revision history

(Pub. L. 103–3, title I, § 102, Feb. 5, 1993, 107 Stat. 9; Pub. L. 110–181, div. A, title V, § 585(a)(2), (3)(A)–(D), Jan. 28, 2008, 122 Stat. 129, 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(B), (4), Oct. 28, 2009, 123 Stat. 2309, 2311; Pub. L. 111–119, § 2(b), Dec. 21, 2009, 123 Stat. 3477; Pub. L. 116–92, div. F, title LXXVI, § 7604(a), Dec. 20, 2019, 133 Stat. 2307; Pub. L. 116–127, div. C, § 3102(a), Mar. 18, 2020, 134 Stat. 189.)

Editorial Notes

References in Text

The date the Emergency Family and Medical Leave Expansion Act takes effect, referred to in subsec. (a)(1)(F), is the effective date of div. C of Pub. L. 116–127, which is set out as an Effective Date note under section 2620 of this title.

Constitutionality

For information regarding the constitutionality of certain provisions of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov.

Amendments

2020—Subsec. (a)(1)(F). Pub. L. 116–127, § 3102(a)(1), added subpar. (F).

Subsec. (c). Pub. L. 116–127, § 3102(a)(2), substituted “under subsection (a) (other than certain periods of leave under subsection (a)(1)(F))” for “under subsection (a)”.

2019—Subsec. (a)(1). Pub. L. 116–92, § 7604(a)(1)(A), inserted “and subsection (d)(3)” after “section 2613 of this title” in introductory provisions.

Subsec. (a)(4). Pub. L. 116–92, § 7604(a)(1)(B), substituted “Subject to subsection (d)(3), during” for “During”.

Subsec. (d)(3), (4). Pub. L. 116–92, § 7604(a)(2), added pars. (3) and (4).

2009—Subsec. (a)(1)(E). Pub. L. 111–84, § 565(a)(1)(B)(i), substituted “covered active duty” for “active duty” in two places and struck out “in support of a contingency operation” before period.

Subsec. (a)(5). Pub. L. 111–119 added par. (5).

Subsec. (e)(2)(A). Pub. L. 111–84, § 565(a)(4), substituted “parent, or covered servicemember” for “or parent”.

Subsec. (e)(3). Pub. L. 111–84, § 565(a)(1)(B)(ii), substituted “covered active duty” for “active duty” in heading and in two places in text and struck out “in support of a contingency operation” before “, the employee shall provide”.

2008—Subsec. (a)(1)(E). Pub. L. 110–181, § 585(a)(2)(A), added subpar. (E).

Subsec. (a)(3), (4). Pub. L. 110–181, § 585(a)(2)(B), added pars. (3) and (4).

Subsec. (b)(1). Pub. L. 110–181, § 585(a)(3)(A)(i), (ii), in second sentence, substituted “subsection (b)(5) or (f) (as appropriate) of section 2613” for “section 2613(b)(5)” and inserted “or under subsection (a)(3)” after “subsection (a)(1)” and, after second sentence, inserted “Subject to subsection (e)(3) and section 2613(f) of this title, leave under subsection (a)(1)(E) may be taken intermittently or on a reduced leave schedule.”

Subsec. (b)(2). Pub. L. 110–181, § 585(a)(3)(A)(iii), inserted “or under subsection (a)(3)” after “subsection (a)(1)”.

Subsec. (d)(1). Pub. L. 110–181, § 585(a)(3)(B)(i), inserted “(or 26 workweeks in the case of leave provided under subsection (a)(3))” after “fewer than 12 workweeks” and “(or 26 workweeks, as appropriate)” after “attain the 12 workweeks”.

Subsec. (d)(2)(A). Pub. L. 110–181, § 585(a)(3)(B)(ii), substituted “(C), or (E)” for “or (C)”.

Subsec. (d)(2)(B). Pub. L. 110–181, § 585(a)(3)(B)(iii), inserted at end “An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the 26-week period of such leave under such subsection, except that nothing in this subchapter requires an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave.”

Subsec. (e)(2). Pub. L. 110–181, § 585(a)(3)(C)(i), inserted “or under subsection (a)(3)” after “subsection (a)(1)” in introductory provisions.

Subsec. (e)(3). Pub. L. 110–181, § 585(a)(3)(C)(ii), added par. (3).

Subsec. (f). Pub. L. 110–181, § 585(a)(3)(D), designated existing provisions as par. (1) and inserted heading, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), realigned margins, and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Amendment by Pub. L. 116–127 effective no later than 15 days after Mar. 18, 2020, see section 3106 of div. C of Pub. L. 116–127, set out as an Effective Date note under section 2620 of this title.

Effective Date of 2019 Amendment

Amendment by Pub. L. 116–92 not effective with respect to any birth or placement occurring before Oct. 1, 2020, see section 7604(c) of Pub. L. 116–92, set out as a note under section 2611 of this title.

Effective Date

Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agreement, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title.

Clarification for Members of the National Guard and Reserves: GAO and Library of Congress Employees

Pub. L. 116–92, div. F, title LXXVI, § 7605(c), Dec. 20, 2019, 133 Stat. 2308, provided that: “For purposes of determining the eligibility of an employee of the Government Accountability Office or Library of Congress who is a member of the National Guard or Reserves to take leave under section 102(a) of the Family and Medical Leave Act of 1993 [29 U.S.C. 2612(a)], any service by such employee on active duty (as defined in section 101(14) of such Act [29 U.S.C. 2611(14)]) shall be counted as time during which such employee has been employed for purposes of section 101(2)(A) of such Act [29 U.S.C. 2611(2)(A)].”

§2613. Certification

29 U.S.C. § 2613

(a)
In general— An employer may require that a request for leave under subparagraph (C) or (D) of paragraph (1) or paragraph (3) of section 2612(a) 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, or of the next of kin of an individual in the case of leave taken under such paragraph (3), 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) 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 section 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 section 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 section 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 section 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) for leave under subparagraph (C) or (D) of section 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) 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) differs from the opinion in the original certification provided under subsection (a), 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).
(2)
Finality— The opinion of the third health care provider concerning the information certified under subsection (b) 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.
(f)
Certification related to covered active duty or call to covered active duty— An employer may require that a request for leave under section 2612(a)(1)(E) of this title be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe. If the Secretary issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.
Notes, amendments, and revision history

(Pub. L. 103–3, title I, § 103, Feb. 5, 1993, 107 Stat. 11; Pub. L. 110–181, div. A, title V, § 585(a)(3)(E), Jan. 28, 2008, 122 Stat. 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(C), Oct. 28, 2009, 123 Stat. 2310.)

Editorial Notes

Amendments

2009—Subsec. (f). Pub. L. 111–84 substituted “covered active duty” for “active duty” in two places in heading.

2008—Subsec. (a). Pub. L. 110–181, § 585(a)(3)(E)(i), substituted “paragraph (1) or paragraph (3) of section 2612(a)” for “section 2612(a)(1)” and inserted “or of the next of kin of an individual in the case of leave taken under such paragraph (3),” after “parent of the employee,”.

Subsec. (f). Pub. L. 110–181, § 585(a)(3)(E)(ii), added subsec. (f).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agreement, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title.

§2614. Employment and benefits protection

29 U.S.C. § 2614

(a)
Restoration to position—
(1)
In general— Except as provided in subsection (b), any eligible employee who takes leave under section 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 section 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 section 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 section 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) 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 section 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 section 2612 of this title if—
(A)
the employee fails to return from leave under section 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 section 2612(a)(1) of this title or under section 2612(a)(3) 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 section 2612(a)(1)(C) of this title;
(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 section 2612(a)(1)(D) of this title; or
(iii)
a certification issued by the health care provider of the servicemember being cared for by the employee, in the case of an employee unable to return to work because of a condition specified in section 2612(a)(3) 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.
Notes, amendments, and revision history

(Pub. L. 103–3, title I, § 104, Feb. 5, 1993, 107 Stat. 12; Pub. L. 110–181, div. A, title V, § 585(a)(3)(F), Jan. 28, 2008, 122 Stat. 131.)

Editorial Notes

Amendments

2008—Subsec. (c)(2)(B)(i). Pub. L. 110–181, § 585(a)(3)(F)(i), inserted “or under section 2612(a)(3) of this title” before semicolon.

Subsec. (c)(3)(A)(iii). Pub. L. 110–181, § 585(a)(3)(F)(ii), added cl. (iii).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agreement, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title.

§2615. Prohibited acts

29 U.S.C. § 2615

(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.
Notes, amendments, and revision history

(Pub. L. 103–3, title I, § 105, Feb. 5, 1993, 107 Stat. 14.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agreement, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title.