Family and Medical Leave Act of 1993

Provisions

In June 2007, the Department of Labor estimated that of the 141.7 million workers in the United States, 94.4 million worked at FMLA-covered worksites, and 76.1 million were eligible for FMLA leave. Between 8 percent and 17.1 percent of covered and eligible workers (or between 6.1 million and 13.0 million workers) took FMLA leave in 2005. The 2008 National Survey of Employers found no statistically significant difference between the proportion of small employers (79%) and large employers (82%) that offer full FMLA coverage.

The United States Congress passed this bill with the understanding that “it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing … [and] the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting”. Although much of the research has been conducted on populations in other countries, Berger et al. found that children in the United States whose mothers return to work within the first 3 months after giving birth are less likely to be breastfed, less likely to have all of their immunizations up to date (by 18 months), less likely to receive all of their regular medical checkups, and are more likely to exhibit behavior problems at age four. Chatterji and Markowitz also found an association between longer lengths of maternity leave and lesser incidence of depression among mothers.

In the creation of the bill, Congress also stressed that this piece of legislation was intended to provide leave protection for individuals “in a manner that accommodates the legitimate interests of employers”. In order to accomplish this, the FMLA places restrictions on which workers are eligible for the unpaid, job-protected leave. Workers are eligible if they have been employed for at least 12 months by their employer, and have worked at least 1,250 hours during the past 12 months for their employer (roughly equivalent to 25 hours per week). Employees who meet these conditions are not eligible, however, if their employer has fewer than 50 employees (either at that work site or within a 75-mile radius of that site). In addition, if a husband and wife have the same employer, “the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks” if the employer so chooses.

A final stipulation of eligibility deals with “highly compensated employees” who are defined as “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”. These highly paid individuals are eligible for the leave, but their employers are not required to restore them to their original position (or an equivalent position with equivalent pay and benefits, as is guaranteed to other employees) if the employer determines that denying the employee their position is “necessary to prevent substantial and grievous economic injury to the operations of the employer” and the employer provides the worker with notice of this decision, though no time frame for providing this notice is established.

If, after meeting all of the above requirements, an employee is determined to be eligible and takes the job-protected leave, it is in an unpaid status unless the employer either elects to provide paid compensation for the leave, or if the employee elects to use their annual and/or sick leave for this time. In addition, the legislation allows for the ability of the employer to require that the employee use their accrued paid leave time while taking leave under the FMLA.

As a result of the many conditions attached to eligibility for leave under the FMLA, many American workers find themselves ineligible to take job-protected leave upon the birth or adoption of a child. Han and Waldfogel, in their analysis of the impact of the FMLA, note that “only about 60% of private sector workers are covered” due to the clause stipulating a minimum number of employees, and once the clause stipulating a minimum number of hours worked is added, only 46% of private sector workers are eligible for leave under the FMLA.

Benefits for employees mandated by the law

To qualify for the FMLA mandate, a worker must be employed by a business with 50 or more employees within a 75-mile radius of his or her worksite, or a public agency, including schools and state, local, and federal employers (the 50-employee threshold does not apply to public agency employees and local educational agencies). He or she must also have worked for that employer for at least 12 months (not necessarily consecutive) and 1,250 hours within the last 12 months. (There are special hours rules for certain airline employees.)

The FMLA mandates unpaid, job-protected leave for up to 12 weeks a year:

The FMLA further requires employers to provide for eligible workers:

Non-eligible workers and types of leave

The federal FMLA does not apply to:

State-level FMLA benefits

Some states have enacted laws that mandate additional family and medical leave for workers in a variety of ways.

Dropping the employer threshold

The federal FMLA only applies to employers with 50 or more employees, within 75 miles. Some states have enacted their own FMLAs that have a lower threshold for employer coverage:

Expanding the definition of family

The federal FMLA only applies to immediate family—parent, spouse, and child. The 2008 amendments to the FMLA for military family members extend the FMLA’s protection to next of kin and to adult children. The Department of Labor on June 22, 2010 clarified the definition of "son and daughter" under the FMLA "to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship" and specifying that "an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child."

In February 2015, the Department of Labor issued its final rule amending the definition of spouse under the FMLA in response to the decision in United States v. Windsor, effective March 27, 2015. The revised definition of "spouse" extends FMLA leave rights and job protections to eligible employees in a same-sex marriage or a common-law marriage entered into in a state where those statuses are legally recognized, regardless of the state in which the employee works or resides. Even if an employee works where same-sex or common law marriage is not recognized, that employee's spouse triggers FMLA coverage if the employee married in a state that recognized same-sex marriage or common law marriage. Some states had already expanded the definition of family in their own FMLAs:

Increasing the uses for FMLA leave

FMLA leave can be used for a worker’s serious health condition, the serious health condition of a family member, or upon the arrival of a new child. State FMLA laws and the new military family provisions of the FMLA have broadened these categories:

Unpaid leave for other related purposes

Several states have passed FMLA-type statutes to give parents unpaid leave for other related purposes, including:

Paid family and medical leave

Four states have passed laws requiring paid family and medical leave: California in 2002, New Jersey in 2008, Rhode Island in 2013, and New York in 2016. Washington state passed a paid family and medical leave law in 2007, but the law has not taken effect due to a lack of funding mechanism.

Controversy

Critics of the act have suggested that by mandating various forms of leave that are used more often by female than male employees, the Act, like the Pregnancy Discrimination Act of 1978, makes women more expensive to employ than men. They argue that employers will engage in subtle discrimination against women in the hiring process, discrimination which is much less obvious to detect than pregnancy discrimination against the already hired. Supporters counter that the act, in contrast to the Pregnancy Discrimination Act of 1978, is aimed at both women and men, and is part of an overall strategy to encourage both men and women to take family-related leave. However, this is based on the assumption that men will take advantage of the opportunity of unpaid leave at comparable rates to women. According to Grossman, there is no basis for this assumption upon the inception of the legislation and no evidence has been found today to support this assumption. Therefore, the employer incentive to prefer male employees is preserved despite the equal opportunity for both sexes to take leave.

Moreover, the FMLA is much less comprehensive than Western European leave policies. Namely, the United States is the only industrialized country without paid leave for parents. The following table illustrates the dearth of provisions offered in the United States as compared to that of other industrialized countries. For instance, all Western European nations have maternity paid leave and over half have paternity and sick child care paid leave, while the United States has no paid leave.

*Y = available, No = not available, - = not applicable

Additionally, feminists call into question whether in the pursuit of gender equality the policy failed to meet the standard of gender equity. In other words, the policy did not take into account the unbalanced reality between genders as it concerns care taking as it puts a blanket, one size fits all policy for all genders. For instance, any woman specific benefits provided by the legislation were considered special treatment and was thus unacceptable. This ignores that women may have a greater share of burden of caregiving in reality. In retort, supporters may instead argue that by creating legislation that recognizes the female’s greater role in child care, the legislation reinforces stereotypes.

The success of the implementation of the policy is also controversial because it is questioned whether the policy is actually going to those who need the benefits. For instance, since the leave offered is unpaid, majorities of eligible employees can not take time off because they can not afford to do so. And according to Pyle and Pelletier, eligible workers may not even know about this policy and the benefits allotted to them.

Ceremony

Vicki Yandle, a receptionist who was fired after asking for a few weeks of time off to care for a daughter with cancer, was on stage with President Clinton when the law was signed.