Those Who Are Forgotten Under the Family and Medical Leave Act

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By Hannah Schaffer, Features Editor

Many agree that the first weeks of a child’s life are fundamental to their development. However, the United States does not offer universal federal paid parental leave. The Family and Medical Leave Act (FMLA) is the closest policy the United States employs. The FMLA took nine years to draft before being adopted in 1993 and was the first major piece of legislation signed by President Bill Clinton.[1] The act is intended “to promote the stability and economic security of families as well as the nation’s interest in preserving the integrity of families.”[2]

Prior to the enactment of the FMLA, it was not uncommon for women to lose their jobs when they took time off work to have a child, which greatly limited the career opportunities available to women. Some mothers were even left with no other option than to endanger their own health by returning to work too quickly after giving birth in an effort to protect their jobs.[3] The FMLA requires certain employers provide eligible employees with up to 12 weeks of unpaid leave each year for the birth and care of a newborn child of an employee, for placement with the employee of a child for adoption or foster care, to care for an immediate family member with a serious health condition, or to take medical leave when the employee is unable to work because of a serious health condition.[4] According to the U.S. Department of Labor, the FMLA has been used more than 100 million times since it was enacted in 1993.[5]

However, the use of the FMLA is highly restrictive. Only approximately 60% of the workforce is eligible to use the FMLA.[6] To utilize the FMLA leave, an employee must first work for a covered employer, which in general covers private employers with at least 50 employees, government agencies, and schools regardless of the number of employees.[7] In addition to working for a covered employer, the employee must have worked for the employer for at least 12 months and for at least 1250 hours in the 12 months prior to taking leave.[8] This averages out to be about 24 hours per week over the course of a year. Finally, to be eligible for FMLA, the employee must work at a location where the employer has at least 50 employees with a 75-mile radius of the worksite.[9] In other words, even if the employer has more than 50 employees, if they are spread throughout the country and there are not 50 employees within 75-miles of the worksite, the employee will not be eligible under the FMLA. Only if these four conditions are met is an employee eligible for FMLA. Employees who work for a private employer with less than 50 employees, who have worked for an employer for less than 12 months and 1250 hours or an employer that does not have 50 employees within 75-miles are not eligible for leave under the FMLA. 

Although the FMLA covers “any pregnancy-related leave that is medically necessary,” an employee may only take up to 12 weeks of leave under the FMLA. This creates tough decisions for many women who experience complications during their pregnancies. For example, if a woman has a complicated pregnancy and must take weeks off prior to giving birth, she may only be left with a week or two to recover from childbirth and care for her new baby.  

“I see parents going back to work after one or even two weeks because they have no paid sick [leave], they have no vacation, they’re not eligible for FMLA,” said Jeannine Sato, who works with low-income women who are new mothers.[10] “Even if they were eligible, they couldn’t afford to take the unpaid time off.”

Often, women who work multiple jobs are not eligible under the FMLA because they have not worked the requisite 1250 hours in twelve months. As of 2019, approximately 13 million Americans were working more than one job, with women being more likely than men to hold a second job. Additionally, even women who are qualified for the FMLA, may not be able to take a full 12 weeks off work because they cannot afford it. FMLA only provides employees with unpaid leave. For many workers, not receiving a paycheck for 12 weeks is not a viable option. Only 17% of workers in the United States currently have access to paid family leave through their employers.[11] Additionally, under the FMLA legislation, an employee is not eligible to take leave to care for their father-in-law or mother-in-law, which can create major issues, especially for families in which only one partner qualifies for leave under the FMLA.  

Another major issue with the FMLA is that the FMLA legislation only requires an employer to offer the employee a comparable job once they return from leave. The employer is not required to offer the returning employee the exact job they held before the took leave under the FMLA. The FMLA solely requires that an employee must be restored an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.[12] The legislation is ambiguous as to the definition of “equivalent.” 

Many policymakers have proposed legislation that would expand the FMLA and provide workers with access to comprehensive paid leave to care for themselves and their families. One piece of proposed legislation is the Family and Medical Leave Insurance (FAMILY) Act, which was introduced by Sen. Kirsten Gillibrand and Rep. Rosa DeLauro in February 2019. The FAMILY Act would provide workers with “access to comprehensive paid leave in order to recover from a serious health condition, to care for a family member with a serious illness, and to care for a new child.” 

However, not everyone stands in favor of expanding the FMLA. Head of Labor Law Policy at the U.S. Chamber of Commerce, Marc Freedman, opposed the passing of the FMLA and speaks strongly against any expansion of the act.[13] Freedman feels that the act creates a lot of problems throughout the workplace. “Employers have constraints on them,” Freedman said.[14] Freedman explained that unpaid leave is “too big a burden for many small companies,” and is “especially challenging when workers use it intermittently, with no advance notice.”[15]

[1] Megan A. Sholar, The History of Family Leave Policies in the United States, Organization of American Historians. (Visited November 17, 2021).

[2] Amelia, History of FMLA, Labor Law Center (May 16, 2016).

[3] Id.

[4] Family and Medical Leave (FMLA), U.S. Department of Labor. (Visited November 17, 2021).

[5] Deb Hipp, Essential FMLA Facts for Caregivers and Families, A Place for Mom. (June 20, 2020).

[6] Jennifer Ludden, FMLA Not Really Working for Many Employees, National Public Radio. (February 5, 2013, 3:24 PM EST)

[7] United States Department of Labor, The Employee’s Guide to the Family and Medical Leave Act. (Visited November 20, 2021).

[8] Id.

[9] Id. 

[10] Id.

[11]Diana Boesch, Paid Family and Medical Leave Must Be Comprehensive to Help Workers and Their Children, The Center for American Progress. (July 16, 2019).

[12] Robin Madell, What Employees Should Know About the Family and Medical Leave Act, U.S. News & World Report. (March 22, 2021, 2:38 PM EST).

[13] Jennifer Ludden, FMLA Not Really Working for Many Employees, National Public Radio. (February 5, 2013, 3:24 PM EST)

[14] Id.

[15] Id.

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