Federal law allowing time off for health reasons spawns other leave laws
The Family Medical and Leave Act recently marked its 20th anniversary. It is one of the most widely used workplace laws in the country.
Two decades ago, President Bill Clinton signed the FMLA into law although the law did not go into effect for six months for most businesses and up to a year for those with labor unions.
The measure, which allows employees in mid-size and large workplaces, to take time off for health-related reasons, has been one of the most effective and efficient employment laws. It has been so effective that it has spawned a number of mini-FMLA’s around the country.
History & Hysteria
The law was conceived, no pun intended, during the 1980’s to allow women time-off from work for child birth and post-maternity. The original FMLA was passed by Congress in 1991, but the first President Bush vetoed it. Responding to concerns that almost reached hysterical levels from some business quarters, he deemed it too “burdensome.”
The concept was an issue in the 1992 Presidential campaign and, after he won along with Democratic majorities in both the House of Representatives and Senate, President Clinton acted quickly. Congress passed the new FMLA within the first couple of weeks of the first term of the Clinton administration and the bill became the first major piece of legislation signed by the President on February 5, 1993.
As it observes its platinum anniversary, the law has been well-accepted. A survey taken by the Department of Labor, which oversees some aspects of the law, showed that it was used by about 23 million employees, nearly 17% of the eligible work force, during the first decade of its existence and the number has probably risen since then.
The law has generated some political heat, including an effort by some Republicans to trim it over the years. But, in fact, the law has resisted those assaults and, during the waning days of the second term of the second President Bush, it was expanded to cover some military-related leaves of absence.
Unlike some other employment laws, such as the Americans with Disabilities Act (ADA), the FMLA has not been the subject of restrictive court rulings. The U.S. Supreme Court has addressed the FMLA on three occasions over the past 20 years, dealing largely with technical issues and not impairing its basic characteristics. Nor have a multitude of other court decisions at lower levels significantly constricted the measure and, in some cases, those rulings have actually made it more palatable for employees.
The fundamental features of the law are well established. Basically, it covers employees who have worked full time, or at least 1,250 hours per year for an employer with 50, or more, employees. It also covers most state and local government units, and a few federal employees, although the bulk of employees who are covered, are not covered by other provisions. The military leave provisions, added in 2008, allow time-off to handle health related problems with members of the military or their family members.
Because it is confined to workplaces with 50 or more employees, it only covers about 25% of the work force. Those who are covered may take an unpaid leave of absence for up to 12 weeks per year because of a “serious health condition,” which usually means an affliction that necessitates consulting with a medical provider or having ongoing treatment, to take care of an immediate family member who is sick, or for maternity or paternity before or after child birth; and adopting a child.
Although the leave is unpaid, employees can use any accrued sick leave or vacation leave to be paid during the time that they are off of work. Those few who have private disability insurance can be paid under those policies. Most employers, who provide health insurance, as do the bulk of large employers, generally have short term or long term disability insurance policies that may provide some compensation for employees on leave and some of those companies have their own self-funded leave policies. In addition to the mandated leave, employers may provide different, more extensive benefits, which also may be contained in the labor union contracts, as well.
An employee taking a leave of absence must be reinstated to the same position, at the same salary and benefits, upon return from leave. An employer who fails to do so, or takes other adverse action against an employee because of request to take a leave or actually doing so, may be subject to suit for retaliation, may be required to reinstate the employee, as well as pay damages consisting of double any wage loss, along with legal fees incurred by the wronged employee.
One exception to the reinstatement requirement, concerns “key” employees, defined as those within the top 10% of the pay scale. Because of the difficulty of obtaining temporary fill-ins for high level positions, the law permits employers to refrain from reinstating such an employee to a prior position upon return from leave of absence if doing so would create “substantial and grievous economic injury” to the employer.
The Federal law has formed the model for mini-FMLAs in many places. Nearly two dozen states and local units of government, including neighboring Wisconsin, California, Ohio, the District of Columbia, and the City of Seattle, among others, have their own measures that provide leave of absences, usually on an unpaid basis, for those who are not covered by the FMLA or, in some instances, more extensive benefits, beyond those contained in the Federal law.
Minnesota does not have its own mini-FMLA. The closest parallel is the Minnesota Parental Leave Act, which applies to employers with 21 or more employees, it allows parents up to 16 hours per year of unpaid time off from work to participate in their children’s school activities and the law also contains a provision allowing up to 6-weeks absence, on an unpaid basis, for maternity or paternity leave.
In addition to that measure, Minnesota has a bevy of laws allowing leave of absence work. They include paid time off for military service by public sector employees, leave of absences to donate bone marrow and organs, time off to vote in elections, and other occasions. Some employers, both in the public and private sectors, have additional leave policies, often bolder in unionized work places that allow employees time off for jury duty, bereavement, and even birthdays.
There are, to be sure, incidents in which employees have abused the FMLA and other leaves of absence. But experience reflects that the two decades of experience under the FMLA, as well as related laws, reflect that the improprieties are far outweighed by the legitimate utilization by employees.
As the FMLA reaches 20 years old, it remains a vital force in the workplace. Both employees and their employers can say Happy Birthday, FMLA.