29 U.S.C. § 2611 — Definitions

Page 778 TITLE 29—LABOR § 2611 ‘‘SEC. 5112. AUTHORITY TO EXCLUDE CERTAIN EM- PLOYEES. ‘‘The Director of the Office of Management and Budg- et shall have the authority to exclude for good cause from the definition of employee under section 5110(1) certain employees described in subparagraphs (E) and (F) of such section [sic], including by exempting cer- tain United States Government employers covered by section 5110(2)(A)(i)(V) from the requirements of this title [probably should be ‘‘this Act’’] with respect to certain categories of Executive Branch employees.’’ SUBCHAPTER I—GENERAL REQUIREMENTS FOR LEAVE § 2611. Definitions As used in this subchapter: (1) Commerce The terms ‘‘commerce’’ and ‘‘industry or ac- tivity affecting commerce’’ mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct com- merce or the free flow of commerce, and in- clude ‘‘commerce’’ and any ‘‘industry affect- ing 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 em- ployer with respect to whom leave is re- quested 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 in- clude— (i) any Federal officer or employee cov- ered 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 em- ployer 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 require- ment 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 de- fined in regulations of the Federal Avia- tion Administration) meets the hours of service requirement specified in subpara- graph (A)(ii), the employee will be consid- ered 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 re- spect 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 regula- tions as the Secretary may prescribe) con- taining information specifying the applica- ble monthly guarantee with respect to each category of employee to which such guarantee applies. (iii) Definition In this subparagraph, the term ‘‘applica- ble 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 Govern- ment Accountability Office, the require- ments 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 com- merce or in any industry or activity af- fecting 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 in- directly, in the interest of an employer to any of the employees of such em- ployer; and (II) any successor in interest of an em- ployer; (iii) includes any ‘‘public agency’’, as de- fined in section 203(x) of this title; and (iv) includes the Government Account- ability Office and the Library of Congress. Page 779 TITLE 29—LABOR § 2611 (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 indus- try or activity affecting commerce. (5) Employment benefits The term ‘‘employment benefits’’ means all benefits provided or made available to employ- ees by an employer, including group life insur- ance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such bene- fits are provided by a practice or written pol- icy 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 par- ent of an employee or an individual who stood in loco parentis to an employee when the em- ployee 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 bio- logical, 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 (includ- ing a member of the National Guard or Re- serves) who is undergoing medical treat- ment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a seri- ous 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 mem- ber of the Armed Forces (including a mem- ber of the National Guard or Reserves) at any time during the period of 5 years pre- ceding the date on which the veteran under- goes 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 rel- ative 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 ill- ness 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 aggra- vated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to per- form 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 de- fined 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 aggra- vated by service in line of duty on active duty in the Armed Forces) and that mani- Page 780 TITLE 29—LABOR § 2612 fested itself before or after the member be- came a veteran. (19) Veteran The term ‘‘veteran’’ has the meaning given the term in section 101 of title 38. (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 amend- ment, 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 treat- ment, recuperation, or therapy, is otherwise in out- patient status, or is otherwise on the temporary dis- ability 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 amend- ment, text read as follows: ‘‘The term ‘contingency op- eration’ has the same meaning given such term in sec- tion 101(a)(13) of title 10.’’ Pars. (16), (17). Pub. L. 111–84, § 565(a)(1)(A)(ii), redes- ignated 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 ‘‘Gov- ernment Accountability Office’’ for ‘‘General Account- ing 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 sec- tion 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 agree- ment, 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 regula- tions to carry out the amendments made by this sub- section [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 Vet- erans 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: ‘‘(1) IN GENERAL.—A covered employee who has com- pleted 12 months of service which qualifies as honor- able 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)], not- withstanding the requirements of such section 101(1)(A). ‘‘(2) COVERED EMPLOYEE DEFINED.—In this subsection, the term ‘covered employee’— ‘‘(A) includes— ‘‘(i) 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 sta- tus as such an employee; ‘‘(ii) any Federal employee covered by the Con- gressional Accountability Act of 1995 [2 U.S.C. 1301 et seq.] eligible for family and medical leave by op- eration of section 202 of such Act [2 U.S.C. 1312]; ‘‘(iii) any Federal employee of the Executive Of- fice of the President eligible for family and medical leave by operation of section 412 of title 3, United States Code; and ‘‘(iv) any non-judicial employee of the District of Columbia courts and any employee of the District of Columbia Public Defender Service; and ‘‘(B) does not include any member of the Commis- sioned Corps of the Public Health Service or the Com- missioned Corps of the National Oceanic and Atmos- pheric Administration, [sic]’’ § 2612. Leave requirement (a) In general (1) Entitlement to leave Subject to section 2613 of this title and sub- section (d)(3), an eligible employee shall be en- titled to a total of 12 workweeks of leave dur- ing any 12-month period for one or more of the following: (A) Because of the birth of a son or daugh- ter 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