29 U.S.C. § 2612 — Leave requirement

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 Page 781 TITLE 29—LABOR § 2612 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 em- ployee. (E) Because of any qualifying exigency (as the Secretary shall, by regulation, deter- mine) 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 noti- fied 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 end- ing on December 31, 2020, because of a quali- fying need related to a public health emer- gency in accordance with section 2620 of this title. (2) Expiration of entitlement The entitlement to leave under subpara- graphs (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 eligi- ble 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 pe- riod to care for the servicemember. The leave described in this paragraph shall only be avail- able during a single 12-month period. (4) Combined leave total Subject to subsection (d)(3), during the sin- gle 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 para- graph shall be construed to limit the avail- ability 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 de- scribed 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 sub- section (a)(1) shall not be taken by an em- ployee intermittently or on a reduced leave schedule unless the employee and the em- ployer of the employee agree otherwise. Sub- ject to paragraph (2), subsection (e)(2), and subsection (b)(5) or (f) (as appropriate) of sec- tion 2613 of this title, leave under subpara- graph (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 sec- tion 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 sub- section (a) beyond the amount of leave actu- ally 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 em- ployer may require such employee to transfer temporarily to an available alternative posi- tion offered by the employer for which the em- ployee is qualified and that— (A) has equivalent pay and benefits; and (B) better accommodates recurring periods of leave than the regular employment posi- tion 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 at- tain the 12 workweeks (or 26 workweeks, as ap- propriate) of leave required under this sub- chapter may be provided without compensa- tion. (2) Substitution of paid leave (A) In general An eligible employee may elect, or an em- ployer may require the employee, to sub- stitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subpara- graph (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 em- ployer may require the employee, to sub- stitute 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 Page 782 TITLE 29—LABOR § 2612 paid vacation leave, personal leave, family leave, or medical or sick leave of the em- ployee 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 Account- ability 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 pur- pose. (B) Amount of paid leave The paid leave that is available to an em- ployee 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 employ- ees 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 appropria- tion or fund available for salaries or ex- penses 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 em- ployees Consistent with section 1301(a)(3)(J) of title 2, the rights and protections established by sections 2611 through 2615 of this title, includ- ing 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 em- ployee— (A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, sub- ject to the approval of the health care pro- vider of the employee or the health care pro- vider 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, ex- cept that if the date of the treatment re- quires 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, daugh- ter, 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 prac- ticable. (f) Spouses employed by same employer (1) In general In any case in which a husband and wife en- titled to leave under subsection (a) are em- ployed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 work- weeks during any 12-month period, if such leave is taken— (A) under subparagraph (A) or (B) of sub- section (a)(1); or (B) to care for a sick parent under subpara- graph (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— Page 783 TITLE 29—LABOR § 2613 (i) leave under subsection (a)(3); or (ii) a combination of leave under sub- section (a)(3) and leave described in para- graph (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). (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 Su- preme 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), in- serted ‘‘and subsection (d)(3)’’ after ‘‘section 2613 of this title’’ in introductory provisions. Subsec. (a)(4). Pub. L. 116–92, § 7604(a)(1)(B), sub- stituted ‘‘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), sub- stituted ‘‘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 em- ployee 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), in- serted ‘‘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), sub- stituted ‘‘(C), or (E)’’ for ‘‘or (C)’’. Subsec. (d)(2)(B). Pub. L. 110–181, § 585(a)(3)(B)(iii), in- serted 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, fam- ily 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 em- ployer to provide paid sick leave or paid medical leave in any situation in which the employer would not nor- mally 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, re- designated 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 re- spect 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 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. CLARIFICATION FOR MEMBERS OF THE NATIONAL GUARD AND RESERVES: GAO AND LIBRARY OF CONGRESS EM- PLOYEES Pub. L. 116–92, div. F, title LXXVI, § 7605(c), Dec. 20, 2019, 133 Stat. 2308, provided that: ‘‘For purposes of de- termining the eligibility of an employee of the Govern- ment 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 pur- poses of section 101(2)(A) of such Act [29 U.S.C. 2611(2)(A)].’’ § 2613. Certification (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