2 U.S. Code § 1312 - Rights and protections under Family and Medical Leave Act of 1993

(a) Family and medical leave rights and protections provided

(1) In general

The rights and protections established by sections 101 through 105 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611 through 2615) shall apply to covered employees. In applying section 102 of such Act [29 U.S.C. 2612] with respect to leave for an event described in subsection (a)(1)(A) or (B) of such section to covered employees, subsection (d) of this section shall apply. Paragraphs (1) and (4) of section 102(a) of such Act [29 U.S.C. 2612(a)(1), (4)] shall be subject to subsection (d) of this section.

(2) Definitions

For purposes of the application described in paragraph (1)—

(A) the term “employer” as used in the Family and Medical Leave Act of 1993 means any employing office, and

(B) the term “eligible employee” as used in the Family and Medical Leave Act of 1993 means a covered employee who has been employed in any employing office for 12 months and for at least 1,250 hours of employment during the previous 12 months.

The requirements of subparagraph (B) shall not apply with respect to leave under subparagraph (A) or (B) of section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)).

(b) Remedy

The remedy for a violation of subsection (a) shall be such remedy, including liquidated damages, as would be appropriate if awarded under paragraph (1) of section 107(a) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2617(a)(1)).

(c) Omitted

(d) Special rule for paid parental leave

(1) Substitution of paid leave

A covered employee may elect to substitute for any leave without pay under subparagraph (A) or (B) of section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)) any paid leave which is available to such employee for that purpose.

(2) Amount of paid leave

The paid leave that is available to a covered employee for purposes of paragraph (1) is—

(A) 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

(B) during the 12-month period referred to in section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)) and in addition to the administrative workweeks described in subparagraph (A), any additional paid vacation, personal, family, medical, or accrued sick leave provided by the employing office to such employee.

(3) Limitation

Nothing in this section or section 102(d)(2)(A) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(d)(2)(A)) shall be considered to require or permit an employing office to require that an employee first use all or any portion of the leave described in paragraph (2)(B) before being allowed to use the paid parental leave described in paragraph (2)(A).

(4) Additional rules

Paid parental leave under paragraph (2)(A)—

(A) shall be payable from any appropriation or fund available for salaries or expenses for positions within the employing office;

(B) if not used by the covered employee before the end of the 12-month period (as referred to in section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1))) to which it relates, shall not accumulate for any subsequent use; and

(C) shall apply without regard to the limitations in subparagraph (E), (F), or (G) of section 6382(d)(2) of title 5 or section 104(c)(2) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2614(c)(2)).

(e) Regulations

(1) In general

The Board shall, pursuant to section 1384 of this title, issue regulations to implement the rights and protections under this section.

(2) Agency regulations

The regulations issued under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsection (a) except insofar as the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section.

(f) Effective date

(1) In general

Subsections (a) and (b) shall be effective 1 year after January 23, 1995.

(2) Government Accountability Office and Library of Congress

Subsection (c) shall be effective 1 year after transmission to the Congress of the study under section 1371 of this title.

(Pub. L. 104–1, title II, § 202, Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 116–92, div. F, title LXXVI, § 7603(a), (b), Dec. 20, 2019, 133 Stat. 2306, 2307; Pub. L. 116–283, div. A, title XI, § 1103(g)(1), Jan. 1, 2021, 134 Stat. 3889.)

Editorial Notes

References in Text

The Family and Medical Leave Act of 1993, referred to in subsec. (a)(2), is Pub. L. 103–3, Feb. 5, 1993, 107 Stat. 6, which enacted sections 60m and 60n of this title, sections 6381 to 6387 of Title 5, Government Organization and Employees, and chapter 28 (§ 2601 et seq.) of Title 29, Labor, amended section 2105 of Title 5, and enacted provisions set out as notes under section 2601 of Title 29. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 29 and Tables.

Subsection (c) of this section, referred to in subsec. (f)(2), amended section 6381 of Title 5, Government Organization and Employees, and sections 2611 and 2617 of Title 29, Labor.

Codification

Section is comprised of section 202 of Pub. L. 104–1. Subsec. (c) of section 202 of Pub. L. 104–1 amended section 6381 of Title 5, Government Organization and Employees, and sections 2611 and 2617 of Title 29, Labor.

Amendments

2021—Subsec. (d)(2)(B). Pub. L. 116–283 inserted “accrued” before “sick leave”.

2019—Subsec. (a)(1). Pub. L. 116–92, § 7603(a)(1), inserted at end “In applying section 102 of such Act with respect to leave for an event described in subsection (a)(1)(A) or (B) of such section to covered employees, subsection (d) of this section shall apply. Paragraphs (1) and (4) of section 102(a) of such Act shall be subject to subsection (d) of this section.”

Subsec. (a)(2). Pub. L. 116–92, § 7603(b), which directed insertion of “The requirements of subparagraph (B) shall not apply with respect to leave under subparagraph (A) or (B) of section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)).” at end of par. (2), was executed by inserting sentence as concluding provisions of par. (2) to reflect the probable intent of Congress.

Subsecs. (d) to (f). Pub. L. 116–92, § 7603(a)(2), (3), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.

2004—Subsec. (e)(2). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Pub. L. 116–283, div. A, title XI, § 1103(g)(2), Jan. 1, 2021, 134 Stat. 3889, provided that:

“The amendment made by this subsection [amending this section] shall apply with respect to any event for which leave may be taken under subparagraph (A) or (B) of section 102(a)(1) of the Family and Medical Leave Act of 1995 [probably means Family and Medical Leave Act of 1993] (29 U.S.C. 2612(a)(1)) and occurring on or after October 1, 2020.”

Effective Date of 2019 Amendment

Pub. L. 116–92, div. F, title LXXVI, § 7603(c), Dec. 20, 2019, 133 Stat. 2307, provided that:

“The amendments made by this section [amending this section] shall not be effective with respect to any birth or placement occurring before October 1, 2020.”

Clarification for Members of the National Guard and Reserves: Congressional Employees

Pub. L. 116–92, div. F, title LXXVI, § 7605(b), Dec. 20, 2019, 133 Stat. 2308, provided that:

“For purposes of determining the eligibility of a covered employee (as such term is defined in section 101[(a)](3) of the Congressional Accountability Act [2 U.S.C. 1301(a)(3)]) 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)] (pursuant to section 202(a)(1) of the Congressional Accountability Act [2 U.S.C. 1312(a)(1)]), any service by such employee on active duty (as defined in section 101[(a)](14) of the Family and Medical Leave Act of 1993 [2 U.S.C. 1301(a)(14)]) shall be counted as time during which such employee has been employed in an employing office for purposes of section 202(a)(2)(B) of the Congressional Accountability Act [2 U.S.C. 1312(a)(2)(B)].”