50 for 50: Five Decades of the Most Important Discrimination Law Developments
Number 12: The FMLA Becomes Law In 1993
Just over twenty years ago, employees who needed to take time off work for an extended period to tend to their own or family members’ health had no national law guaranteeing they could take a leave of absence with the comfort of knowing that their job would still be there when they were able to return to work. Before the Family and Medical Leave Act became law in 1993, if an employer declined to allow the employee to take medical leave, employees were forced to choose between keeping their job and caring for themselves or their family. Working moms who worked for a company that did not provide significant maternity leave felt that they did not have adequate time to care for and bond with their new baby. Paternity leave was practically unheard of.
Each year from 1984 to 1993, the FMLA was introduced in Congress, only to be blocked. When Congress finally passed the legislation in 1991 and again in 1992, President George W. Bush vetoed it. During President Clinton’s first term, however, he made the FMLA one of his first priorities. In 1993, with bipartisan support, President Clinton signed the FMLA into law.
The FMLA allows full-time employees who have worked for their employer for at least a year to take up to 12 work weeks of unpaid leave a year to attend to a serious health condition of the employee, employee’s family member, or the pregnancy or care of a newborn child, or for the adoption or foster care of a child. Employees who take FMLA leave are entitled to job-protection: the same job, rate of pay, and benefits upon returning to work from leave. Understanding that this requirement may be a costly burden to employers, particularly those with a small workforce, the FMLA only applies to employers with at least 50 employees.
Twenty years since its enactment, research shows that FMLA leave has been used nearly 100 million times. It is likely that most employees will exercise FMLA leave at some point in their career. Various states have enacted their own family leave acts that are more expansive than the FMLA. The federal FMLA continues to evolve and allow for additional types of leave, such as intermittent and military family leave. With the constant changes in the law and frequency of employees’ exercising their leave rights, sometimes in abuse of the law, the FMLA has become one of the trickier areas of the law for employers to navigate and, to say the least, keeps employers on their toes.
HR professionals who handle FMLA issues on a daily basis universally find the law among the most difficult to administer. But is the FMLA the last law we will see on family leave? The United States is the only industrialized country in the world that does not mandate paid maternity leave (the three others are Papua New Guinea and Lesotho and Swaziland). California administers a paid family leave fund and, while it does not appear that there is any motivation to have such a law nationally, in the past California has often led the country in new workplace laws.