Family and Medical Leave Act of 1993

Family and Medical Leave Act of 1993

Long title	An Act To grant family and temporary medical leave under certain circumstances.
Acronyms (colloquial)	FMLA
Enacted by	the 103rd United States Congress
Citations
Public law	Pub.L. 103–3
Statutes at Large	107 Stat. 6
Legislative history
Introduced in the House as H.R. 1 by William D. Ford (D-MI) on January 5, 1993 Committee consideration by House Education and Labor, House Post Office and Civil Service Passed the House on February 3, 1993 (265–163) Passed the Senate on February 4, 1993 (71–27) with amendment House agreed to Senate amendment on February 4, 1993 (Via H.Res. 71, 247–152) Signed into law by President Bill Clinton on February 5, 1993

The Family and Medical Leave Act of 1993 (FMLA) is a United States federal law requiring covered employers to provide employees job-protected and unpaid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child.^[1] The FMLA is administered by the Wage and Hour Division of the United States Department of Labor.

The bill was a major part of President Bill Clinton's agenda in his first term. President Clinton signed the bill into law on February 5, 1993 (Pub.L. 103–3; 29 U.S.C. sec. 2601; 29 CFR 825) and it took effect on August 5, 1993, six months later.

The FMLA was intended "to balance the demands of the workplace with the needs of families."^[2] The Act allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child. In order to be eligible for FMLA leave, an employee must have been at the business at least 12 months, and worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The FMLA covers both public- and private-sector employees, but certain categories of employees are excluded, including elected officials and their personal staff members.^[3]

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.^[4] 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.^[5]

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”.^[6] Although much of the research has been conducted on populations in other countries,^[7] Berger et al.^[8] 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 ^[9] 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”.^[10] 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” ^[11] 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”.^[12] 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” ^[12] 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.^[13]

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” ^[14] 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.^[15])

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

• to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
• to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the Americans With Disabilities Act, which excludes among other conditions, pregnancy and post-partum recovery from childbirth);^[16]
• to recover from a worker’s own serious illness;
• to care for an injured service member in the family; or
• to address qualifying exigencies arising out of a family member’s deployment.
• twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).^[17]

The FMLA further requires employers to provide for eligible workers:

• the same group health insurance benefits, including employer contributions to premiums, that would exist if the employee were not on leave.
• restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
• protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
• protection of the employee to not have their rights under the Act interfered with or denied by an employer.
• protection of the employee from retaliation by an employer for exercising rights under the Act.
• intermittent FMLA leave for his or her own serious health condition, or the serious health condition of a family member. This includes occasional leave for doctors’ appointments for a chronic condition, treatment (e.g., physical therapy, psychological counseling, chemotherapy), or temporary periods of incapacity (e.g., severe morning sickness, asthma attack).^[18]

Non-eligible workers and types of leave

The federal FMLA does not apply to:

• workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies);
• part-time workers who have worked fewer than 1,250 hours within the 12 months preceding the leave and a paid vacation;
• workers who need time off to care for seriously ill elderly relatives (other than parents) or pets;
• workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness;
• elected officials; and
• workers who need time off for routine medical care, such as check-ups.

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:

• Maine: 15 or more employees (private employers)^[19] and 25 or more (city or town employers).^[20]
• Maryland: 15 or more employees (private employers)Up to seven days for bone marrow donation. Up to 30 days for organ donation.^[21][22]
• Minnesota: 21 or more employees (parental leave only).^[23]
• Oregon: 25 or more employees.^[24]
• Rhode Island: 50 or more employees (private employers)^[25] and 30 or more employees (public employers).^[26]
• Vermont: 10 or more employees (parental leave only)^[27] and 15 or more employees (family and medical leave).^[28]
• Washington: 50 or more employees (FMLA reasons besides insured parental leave);^[29] all employers are required to provide insured parental leave.^[30][31]
• District of Columbia: 20 or more employees.^[32]

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."^[33]

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.^[34] 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.^[35] 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.^[36] Some states had already expanded the definition of family in their own FMLAs:

• California: Domestic partner and domestic partner’s child.^[37]
• Connecticut: Civil union partner,^[38] parent-in-law.^[39]
• Hawaii: Grandparent, parent-in-law, grandparent-in-law^[40] or an employee's reciprocal beneficiary.^[41]
• Maine: Domestic partner and domestic partner’s child,^[42] siblings.^[43]
• Maryland: Allows the employee to use time for immediate family under the same rules if taking it for themselves. Includes step, adopted and even people who were primary caregivers even if not related.^[44]
• New Jersey: Civil union partner and child of civil union partner,^[45] parent-in-law, step parent.^[46]
• Oregon: Domestic partner,^[47] grandparent, grandchild or parent-in-law.^[48]
• Rhode Island: Domestic partners of state employees, parent-in-law.^[49]
• Vermont: Civil union partner,^[50] parent-in-law.^[51]
• Wisconsin: Parent-in-law.^[52]
• District of Columbia: Related to the worker by blood, legal custody, or marriage; person with whom the employee lives and has a committed relationship; child who lives with employee and for whom employee permanently assumes and discharges parental responsibility.^[53]

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:

• Connecticut: Organ or bone marrow donor.^[54]
• Maine: Organ donor;^[55] death of employee’s family member if that family member is a servicemember killed while on active duty.^[56]
• Maryland: Maryland Family Leave Act (MFLA) – Organ donor, Person Standing in Loco Parentis, For Service Leave, and added a specific anti-retaliation penalty on top of FMLA recovery. Runs parallel to FMLA.
• Oregon: Care for the non-serious injury or illness of a child requiring home care.^[57]

Unpaid leave for other related purposes

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

• Attending child’s school or educational activities. Examples include California,^[58] District of Columbia,^[59] Massachusetts,^[60] Minnesota,^[61] Rhode Island,^[62] Vermont,^[63] and others.
• Taking family members to routine medical visits. Massachusetts^[64] and Vermont.^[65]
• Addressing the effects of domestic violence, stalking, or sexual assault. Examples include Colorado,^[66] Florida,^[67] Hawaii,^[68] and Illinois.^[69]

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.^[70][71] 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.^[72]

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.^[73]

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.^[74]

*Y = available, No = not available, - = not applicable^[74]

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.^[75]

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.^[76] And according to Pyle and Pelletier, eligible workers may not even know about this policy and the benefits allotted to them.^[75]

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.^[77]

References

External links

• Family and Medical Leave Act of 1993 29 U.S. Code Chapter 28
• Department of Labor Family & Medical Leave information pages
• Senate roll call vote
• House roll call vote
• Nevada Dept. of Human Resources v. Hibbs
• Your Rights Under the Federal Family and Medical Leave Act (FMLA)
• A Child's Wish at the Internet Movie Database – A made-for-TV film about the act in which President Clinton appears briefly as himself.
• http://paidsickdays.nationalpartnership.org/site/PageServer?pagename=ourwork_fmla_FamilyandMedicalLeave
• http://www.nationalpartnership.org/site/DocServer/WF_PL_FactSheet_PaidFamilyLeave_2009.pdf?docID=4682&autologin=true
• FMLA Insights http://www.fmlainsights.com: a blog authored by Franczek Radelet attorney Jeff Nowak to help employers understand and administer FMLA and to keep employers up to date on changes in the FMLA