The Family Medical Leave Act Turns 20, But It’s Still a Baby
This week marks the twentieth anniversary of the Family Medical Leave Act (FMLA), a historic piece of legislation signed by President Bill Clinton that allows employees in midsize and larger workplaces to take time off of work for health-related reasons and to care for family.
The law was originally proposed to allow women time off from work for childbirth and postnatal care and recovery. The bill was actually passed during the first Bush administration but was vetoed after businesses insisted the law was “too burdensome” and would lead to job losses and other problems for employees. That veto became an issue in the 1992 presidential campaign and once Clinton won, Democratic majorities in the House and Senate re-passed FMLA within the first few weeks of the Clinton term.
Twenty years later, and despite the best efforts by Republicans to undo many of its protections, FMLA is a hit and a success. A survey taken by the Department of Labor, which oversees some aspects of the law, showed that it was used by about 23 million employees, nearly 17 percent of the eligible workforce, during the first decade of its existence and the number has no doubt risen since then. One reason for its popularity and its success is that unlike some other employment laws, such as the Americans with Disabilities Act (ADA), the FMLA has not been the subject of restrictive court rulings. The Supreme Court has addressed FMLA on three occasions over the past 20 years, but it has not unwound its basic features.
Those basic features are well-defined. Essentially the law covers employees who work full time, or at least 1,250 hours per year for an employer with 50, or more, employees. It also covers most state and local government units, and a few federal employees. The military leave provisions, added in 2008, allow time off to handle health-related problems with members of the military or their family members. But because it is limited to workplaces with 50 or more employees, it only covers about 25 percent of the workforce. On that point we have plenty of room for improvement.
Those employees who are covered may take an unpaid leave of absence for up to 12 weeks per year because of a “serious health condition,” which usually means:
- an illness or condition that necessitates consulting with a medical provider or having ongoing treatment
- taking care of an immediate family member who is sick
- maternity or paternity before or after childbirth
- adopting a child
The leave is unpaid, but there are ways to use the time off and not completely run out of cash. Employees can use any accrued sick leave or vacation leave to be paid during the time that they are off of work. Those lucky enough to have private disability insurance can be paid under those policies and most employers who provide health insurance, as do most large employers, generally have short-term or long-term disability insurance policies that may provide some compensation for employees on leave.
Of the key protections offered by FMLA is job protection for those needing the time off. Under the law an employee taking a leave of absence must be reinstated to the same position, at the same salary and benefits, upon return from that leave. Any employer who fails to do so, or takes other adverse action against an employee because of a request to take a leave or actually doing so, may be subject to suit for retaliation and may be required to reinstate the employee, as well as pay damages.
There is one minor exception to the reinstatement requirement for “key” employees, defined as those within the top 10 percent of the pay scale. Because of the difficulty of obtaining temporary fill-ins for high-level positions, the law permits employers to refrain from reinstating such an employee to a prior position upon return from leave of absence if doing so would create “substantial and grievous economic injury” to the employer.
But maybe one of the greatest victories of the law is the number of copy-cat state measures it spawned. Nearly two dozen states and local units of government, including Wisconsin, California, Ohio, the District of Columbia and the city of Seattle have their own measures that provide leave of absences, usually unpaid, for those who are not covered by the FMLA which means that while the federal protections may not cover a particular employee, state protections often do.
While the FMLA has brought important changes to the workplace, much work still remains. To begin with parenting leave should be paid and it should be longer. The United States is the only first-world country without paid family leave and just one of three countries world-wide with no mandated paid leave. For women especially this creates an additional hurdle in the workforce that inevitably drags productivity and can keep from advancing in their jobs at the same rate as men. This inevitably affects a woman’s earning ability which only exacerbates the gender pay gap.
So to celebrate 20 years of FMLA protections let’s honor the law’s legacy by making it better. Expand coverage of the national protections to smaller employers and make that leave paid. The men and women working day in and day out in this country deserve as much.
Photo from sapienssolutions via flickr.