by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
February 07, 2023
Don't get me wrong. The FMLA has provided job-protected leave to millions of employees over those 30 years and that's a good thing. But the FMLA is seriously lagging behind the leave needs of today's workforce. In a February 2023 report, the National Partnership for Women & Families (NPWF) (available here) estimates that the FMLA has been used nearly 463 million times by working people who needed to care for their own health or the health of their families. However, according to other NPWF estimates, in 2022:
- About 44 percent of workers are not eligible for FMLA-supported leave because they work for small employers (15 percent), do not work enough hours or have not worked for their employer for long enough (21 percent), or both (7 percent).
- About 1 in 6 family caregiving leaves that workers needed were for an individual not included in the FMLA's narrow definition of "family". 8.4 million people (5.3 percent of all workers) took leave for a non-FMLA-covered individual – meaning their jobs were not protected during leave. Among workers who did not take leave when they needed it, 14 percent said the person they needed to care for was not covered.
- About 10.9 million workers needed leave but did not take it, including:
- 2.7 million workers who did not take leave because they feared losing their job; and
- Nearly 7.2 million who could not afford unpaid leave.
It is unlikely the U.S. will ever achieve 100% leave coverage for all employees who need it, but clearly there's room for improvement. As we blow out the candles on the FMLA birthday cake, here is my wishlist of 4 updates to the FMLA to better serve many more employees.
Expand employee eligibility.
Currently, to be eligible for FMLA, an employee must satisfy all of these requirements:
- has worked for at least 12 months, cumulatively, for the employer from whom leave is to be taken;
- has worked at least 1250 hours for the employer; and
- works for the employer at a worksite with at least 50 employees within 75 miles.
On the other hand, state leave laws – both job-protected and paid – have significantly lower eligibility requirements. Among the new wave of state paid family and medical leave (PFML) laws, most cover employers with even just one employee, and many provide paid leave benefits to employees from day one of their employment. Job protection may or may not have longer lead time, but few are as long as the 12 months and 1250 hours required by the FMLA.
Expand covered family relationships.
The FMLA provides leave to care for a family member with a serious health condition and for reasons related to family military deployment. The only covered family relationships are the employee's spouse, parent, and child under 18 or incapable of self-care due to a disability. Family relationships for FMLA leave to care for a seriously ill or injured servicemember are defined somewhat more broadly, but not much.
By contrast, states are allowing PFML and other job-protected leaves for a much wider array of family members, including relationships such as siblings, grandparent, grandchildren, domestic partners, and the new concept of someone who is "like a family member" (my term). These laws are a much better reflection of today's evolving concept of "family."
Expand leave reasons.
The FMLA provides unpaid, job-protected leaves for the following reasons:
- To bond with and care for a new child;
- To care for a spouse, child, or parent with a serious health condition;
- Because of the employee's serious health condition;
- To address the impact of a family member's military deployment; and
- To care for a service member with a serious injury or illness.
Many state laws recognize additional leave reasons. Common expansions include:
- "Safe leave" to tend to matters due to the employee or a family member being a victim of domestic violence, sexual assault, and similar crimes;
- Bereavement leave; and
- Organ or tissue donation (which might but won't always be covered by the FMLA as a serious health condition).
Expansion of the FMLA to include these common needs for leave would better serve today's workforce needs for tending to personal matters without fear of losing their jobs.
Add a pay benefit.
Not much hopeful to say here. The leave FMLA provides is job protected but it's unpaid. An employee can use or the employer can require use of any accrued paid leave such as PTO during FMLA leave. Most employees, however, will not have sufficient accrued paid leave to cover a lengthy absence. Despite the U.S. being one of the very few advanced countries that does not provide paid leave at the federal level, Congress so far has been unable to hold hands and pass a paid leave program. I'm not holding my breath but I'm hopeful that when we need it, my kids will be able to take paid leave to care for my husband and me in our old age!
You can read the full NPWF report here: key-facts-the-family-and-medical-leave-act.pdf (nationalpartnership.org).
Matrix Can Help!
Growing weary of trying to keep up with all the state and federal leave laws, not to mention state and ADA disability accommodation requirements? That's what we're here for – we can do it for you! We manage the federal FMLA, state leave laws, paid family and medical leave programs, the ADA and state equivalents, plus your own company leave policies and short-term and long-term disability plans. For more information about our leave and disability management services contact your Reliance Matrix practice leader or account manager or send a us a message at [email protected].