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September 07, 2023

The FMLA Turns 30

John W. Stewart

August 5, 2023, marked 30 years from the date the Family and Medical Leave Act (“FMLA”) of 1993 went fully into effect. Signed into law on February 5, 1993, by newly-inaugurated President Clinton, the FMLA gave American workers the right to take time off work to care for themselves and their family members without giving up their livelihood in the process. The tremendous success of the FMLA deserves celebrating, but the fight to improve family and medical leave rights in this country is not over.

Prior to the FMLA’s enactment, employees suffering from serious health conditions (and employees with family members suffering from serious health conditions) regularly had to choose between taking the time off work they needed to seek treatment, recover, or attend to the needs of a family member, and keeping their jobs. For those whose employers provided the health insurance they needed to get medical care, this was no choice at all.

The FMLA, for the first time, gave covered employees a federally-protected right to take unpaid leave—for up to 12 weeks—to care for a family member, bond with a new child, or recover from their own serious health condition, and still have their job waiting for them when they returned. In the words of the former President of the National Partnership for Women & Families, Debra L. Ness, the impact of the FMLA has been “enormous,” letting “tens of millions of workers take leave when they needed it the most, and changing the culture in this country. Those are women who needed medical care during difficult pregnancies, fathers who took time to care for children fighting cancer, adult sons and daughters caring for frail parents, and workers taking time to recover from their own serious illnesses. Because of the FMLA, their health insurance continued, and their jobs were waiting when they returned to work.”

Department of Labor statistics tell a similar story. In the DOL’s 2018 surveys of employees and worksites, for example, 15 percent of U.S employees reported that they had taken leave for FMLA-qualifying reasons in just the past 12 months. Scott Brown et al., Employee and Worksite Perspectives of the Family and Medical Leave Act: Results from the 2018 Surveys, ABT Assocs., July 2020, at 23. That rate was an uptick from 13 percent in a similar 2012 study and 12 percent in similar 1995 and 2000 studies—an ongoing upward trend in employee leave use for purposes protected by the FMLA. Id. at 26. In fact, the National Partnership for Women & Families estimates that, since the FMLA’s enactment in 1993, American workers have relied on protected leave to care for themselves and their loved ones nearly 463 million times.

Now 30 years in the proving, the FMLA represents a great success story for progressive labor standards, which has all but silenced its once-outspoken detractors, who successfully blocked the statute for nearly a decade. First introduced in Congress in 1984, the FMLA would be introduced again in each year that followed, before finally making it to the desk of President George H.W. Bush in 1991. President H.W. Bush vetoed the bill, in 1991 and again in 1992, citing concerns over the costs that the FMLA would supposedly place on businesses and the economy.

But, since the FMLA’s enactment in 1993, the burdens of compliance imagined by the FMLA’s critics have not been nearly as onerous as originally supposed. In fact, in a 2012 Department of Labor survey, 91 percent of employers reported that complying with the FMLA had either no noticeable effect or even had a positive effect on business operations, such as its influence on employee absenteeism, turnover and morale. Alyssa Pozniak et al., The Family and Medical Leave Act (FMLA) Final Report: Detailed Results Appendix, ABT Assocs., Sept. 6, 2012, at 157. In a follow-up to that survey conducted in 2018, the Department of Labor found that 95 percent of worksites surveyed reported positive or neutral perceptions of the overall effect of the FMLA on productivity, profitability and employees. Scott Brown et al., Employee and Worksite Perspectives of the Family and Medical Leave Act: Results from the 2018 Surveys, ABT Assocs., July 2020, at 53-54.

Nevertheless, there remains significant room for improvement in the area of workplace protections around family and medical leave. For instance, despite its many benefits, the FMLA does not require that employers pay their employees while out on FMLA-qualifying leave. Efforts to remedy this shortcoming federally have so far been unsuccessful but are ongoing. For example, the Family and Medical Insurance Leave (“FAMILY”) Act of 2023, first introduced in 2013, would secure the right to receive partial income (up to 85% of normal wages, for the lowest-earning employees) for the 12 weeks of leave provided by the FMLA, among several other important expansions of FMLA-related rights. Even though efforts to expand the FMLA directly to provide paid leave have not yet borne fruit, a growing number of states and local governments have filled in the gaps with their own paid leave laws. For example, paid family/medical leave is required or will soon be required for covered employees under the laws of California, Colorado, Connecticut, Delaware, the District of Columbia, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island and Washington. Hopefully, as this trend continues, the lessons learned from new state paid leave programs will lead to an expansion of medical and family leave rights at the federal level. 

John W. Stewart

Senior Associate, McGillivary Steele Elkin LLP

John W. Stewart is a senior associate at McGillivary Steele Elkin LLP, where he represents employees in class actions, wage and hour/ overtime lawsuits, and other employment matters, including violations of the FMLA. Mr. Stewart also advises unions on collective bargaining and other labor issues.

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