Family and Medical Leave Act of 1993
The Family and Medical Leave Act of 1993 (FMLA) is a United States federal law requiring covered employers to provide employees job-protected unpaid leave for qualified medical and family reasons. These reasons include personal or family illness, military service, 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.
Provisions
Background
The FMLA requires larger employers to provide unpaid leave to certain workers in the United States. The law recognizes the growing needs of balancing family, work, and obligations, and promises numerous protections to workers.
Prior to the passage of the FMLA, the provision of leave for family or medical reasons was left to the discretion of individual employers. Employees making a request for leave could be denied for any reason, and employees could be fired for taking family and medical leave. When workers changed jobs, even within the same company, they could not be sure that their requests for leave would be treated consistently: "[S]ome employers had formal leave policies that were applied uniformly to their workforces while others had informal policies and the granting of leave depended on the particular circumstances."[2]
In 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.[3] 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.[4]
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.
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);
- 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.
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.
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; 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. Some states have enacted their own FMLAs that have a lower threshold for employer coverage:
- Maine: 15 or more employees (private employers)[5] and 25 or more (city or town employers).[6]
- Minnesota: 21 or more employees (parental leave only).[7]
- Oregon: 25 or more employees.[8]
- Rhode Island: 50 or more employees (private employers)[9] and 30 or more employees (public employers).[10]
- Vermont: 10 or more employees (parental leave only)[11] and 15 or more employees (family and medical leave).[12]
- Washington: 50 or more employees (FMLA reasons besides insured parental leave);[13] all employers are required to provide insured parental leave.[14][15]
- District of Columbia: 20 or more employees.[16]
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."[17] Some states had already expanded the definition of family in their own FMLAs:
- California: Domestic partner and domestic partner’s child.[18]
- Connecticut: Civil union partner,[19] parent-in-law.[20]
- Hawaii: Grandparent, parent-in-law, grandparent-in-law[21] or an employee's reciprocal beneficiary.[22]
- Maine: Domestic partner and domestic partner’s child,[23] siblings.[24]
- New Jersey: Civil union partner and child of civil union partner,[25] parent-in-law, step parent.[26]
- Oregon: Domestic partner,[27] grandparent, grandchild or parent-in-law.[28]
- Rhode Island: Domestic partners of state employees, parent-in-law.[29]
- Vermont: Civil union partner,[30] parent-in-law.[31]
- Wisconsin: Parent-in-law.[32]
- 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.[33]
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.[34]
- Maine: Organ donor;[35] death of employee’s family member if that family member is a servicemember killed while on active duty.[36]
- Oregon: Care for the non-serious injury or illness of a child requiring home care.[37]
Other unpaid leave statutes
Several states have passed FMLA-type statutes to give parents unpaid leave to attend their child’s school or educational activities. Examples include: California,[38] District of Columbia,[39] Massachusetts,[40] Minnesota,[41] Rhode Island,[42] Vermont.[43] Some states have passed FMLA-type statutes to give workers unpaid leave to take family members to routine medical visits, including Massachusetts[44] and Vermont.[45] And states have passed FMLA-type statutes to give workers unpaid leave to address the effects of domestic violence, stalking, or sexual assault. Examples include Colorado,[46] Florida,[47] Hawaii,[48] and Illinois.[49]
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 in equal proportions.
See also
Parental leave
References
- ^ "Family and Medical Leave Act," Stephen Bruce. HR Daily Advisor. [1] Retrieved on 20 September 2011.
- ^ "Explanation of and Experience Under the Family and Medical Leave Act," Linda Levine. Congressional Research Service. 7 February 2003. [2]. Retrieved on 29 July 2009.
- ^ "Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information." 28 June 2007. Department of Labor, Employment Standards Administration, Wage and Hour Division. Federal Register, Vol. 72, No. 124. [3]
- ^ Galinsky, E., Bond, J., Sakai, K., Kim, S., Giuntoli, N. 2008. National study of employers. New York, NY: Families and Work Institute. [4]
- ^ 26 Me. Rev. Stat. Ann. tit. 26 § *843 (3)(A)
- ^ 26 Me. Rev. Stat. Ann. tit. 26 § 843 (3)(C)
- ^ Minn. Stat. § 181.940 (Subd. 3)
- ^ Or. Rev. Stat. § 659A.153 (1)
- ^ R.I. Pub. Laws §28-48-1(3)(i)
- ^ R.I. Pub. Laws § 28-48-1(3)(iii)
- ^ 23 VSA § 471(4)
- ^ 23 VSA § 471(3)
- ^ RCW § 49.78.020(5)
- ^ RCW § 49.86.010 (6)(a)
- ^ RCW § 50.50.080(1)
- ^ D.C. Code § 32-516(2)
- ^ "US Department of Labor clarifies FMLA definition of ‘son and daughter’". U.S. Department of Labor. 2010-06-22. http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm. Retrieved 2010-07-14. News Release Number: 10-0877-NAT
- ^ Cal. Fam. Code § 297.5
- ^ Conn. Gen. Stat. § 46b-38nn
- ^ Conn. Gen. Stat. § 31-51kk (7)
- ^ Haw. Rev. Stat. § 398.1
- ^ Haw. Rev. Stat. § 398.3
- ^ 26 ME. Rev. Stat. Ann. § 843 (4)(D)
- ^ LD 2132
- ^ N.J. Stat. Ann. § 37:1-31
- ^ N.J. Stat Ann. § 34-11B(3)(h)
- ^ HB 2007
- ^ OR. Rev. Stat. § 659A.150 (4)
- ^ R.I. Pub. Laws § 24-48-1(5)
- ^ 23 VSA § 1204(a)
- ^ 23 VSA § 471(3)(B)
- ^ Wis. Stat. §103.10(1)(f)
- ^ D.C. Code 32-501(A), (B), (C)
- ^ Conn. Gen. Stat. § 31-51ll (2)(E)
- ^ 26 ME. Rev. Stat. Ann. § 843 (4)(E)
- ^ 26 ME. Rev. Stat. Ann. § 843 (4)(F)
- ^ OR. Rev. Stat. § 659A.159 (d)
- ^ Cal. Lab. Code § 230.8
- ^ D.C. Code 32-1202
- ^ Mass. Gen. Laws. Ch. 149 § 52(D)(b)(1)
- ^ Minn. Stat. § 181.9412
- ^ R.I. Pub. Laws § 24-48-12
- ^ 23 VSA § 472a (a)(1)
- ^ Mass. Gen. Laws. Ch. 149 § 52(D)(b)(2)&(3)
- ^ 23 VSA § 472a (a)(2)
- ^ Colo. Rev. Stat. § 24-34-402.7
- ^ FLA. STAT. § 741.313
- ^ Haw. Rev. Stat. § 378-72
- ^ 820 Ill. Comp. Stat. 180/1-180/45
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