Owen H. Laird
Earlier this month marked the twenty-fourth anniversary of the passage into law of the Family and Medical Leave Act (“FMLA”). This groundbreaking piece of legislation has, over the last nearly quarter-century, been among the only federal protections for employees who need to take medical leave to care for themselves or for a family member.
In short, the FMLA allows certain employees, under certain circumstances, to take up to 12 weeks of leave in order to seek treatment for their own serious medical condition or to care for a family member. Without the FMLA, most employees would have no protection in the event of an emergency and would be forced to rely on the goodwill of their employer or—if they had one—a short-term disability policy. The FMLA was trailblazing legislation at the time of its passage and has helped millions of Americans in need from the early years of the Clinton administration through today. However, much still needs to be done to protect people in the workplace who need to take time off because of a medical issue.
The FMLA has several significant limitations that constrain its efficacy. First, the law only applies to employers who have 50 or more employees. This means that millions of individuals who work for small and mid-size businesses cannot rely on the FMLA for leave. Although some states have their own laws that reduce this threshold, most do not, leaving many employees without protected leave comparable to that available under the FMLA.
Next, an employee must have worked for an employer for at least 1,250 hours and a minimum of one calendar year to be entitled to FMLA leave. Since the passage of the FMLA in 1993, the economy has shifted away from the model of long-term employment with a single employer; instead, contemporary employees are moving from job to job more frequently and finding employment in less traditional forms. As a result, workers in 2017 are more likely to spend time in shorter-term employment without the protection of the FMLA.
Finally, for many qualifying employees, one of the most significant barriers to workers’ use of FMLA leave is that leave taken under the FMLA is unpaid. While an employee’s job is protected while on FMLA leave, many people cannot afford to lose as much as 12 weeks’ salary, even if their continued employment is guaranteed upon their return from leave. As a result, employees who might otherwise use the leave to which they are entitled do not, simply because they cannot afford to miss weeks or months of pay.
Because of the limitations of the FMLA, many organizations and politicians are pushing for new legislation that would provide for paid leave for employees and address these gaps. This was a major issue during the 2016 presidential campaign; the Democratic party went so far as to include 12 weeks of paid leave as a plank of the party’s platform. And while the Trump administration has proposed a period of paid parental leave, the implementation of that proposal is far from certain. Even if Trump’s proposal does become law, it fails to address many of the FMLA’s limitations described above. Most of the industrialized world provides for some period of paid leave: The United States is the outlier. Though individual states are slowly moving forward on their own, millions remain unprotected. A central, federal solution is necessary.
If you have been denied leave to care for yourself or a loved one, contact The Harman Firm, LLP.