February 20, 2013
The federal Family and Medical Leave Act, signed into law in 1993 by President Bill Clinton, was a huge step forward for the U.S., which lags behind nearly all other countries in establishing standards that enable people to take the time they need to care for themselves and their families. The FMLA makes it possible for eligible employees to have time to recover from their own serious illness or from child birth, to bond with a new child, or to care for a seriously ill spouse, parent or child without worrying that they may be fired from their jobs. It has been used 100 million times in the last 20 years with resounding benefits for families and without undue burdens on employers. Concerns about the FMLA raised by employers’ associations and business lobbyists have proven to be unwarranted.
Yet, as we celebrate the accomplishments of the FMLA, we remain acutely aware of the millions of Americans who are not covered by the Act – who can still be fired if they get sick, have a baby, or need to care for a seriously ill child or family member: and of the millions more who are eligible but do not take the time they need because they do not know they are eligible for leave or can’t afford to go without pay. We can do better.
Department of Labor surveys of work site (employer) and employee experiences with the FMLA, released in early February on the Act’s 20th anniversary, tell us a lot about the directions in which we can go to improve the effectiveness and increase the coverage of family and medical leave for American families. This series of blog posts will review the findings of the FMLA surveys to draw lessons about what we can and should do next.
We begin our series with a discussion of the need for education and enforcement so that people who are eligible can get a leave when they need it. Subsequent blog posts will examine what the surveys tell us about expanding coverage to small businesses, providing family leave insurance so that the leaves are paid, and the effects of the FMLA on businesses including small employers.
Making Sure Eligible Workers Know About and Can Use the FMLA
Even after two decades, about a third of all workers (34 percent) still have not heard about the Family and Medical Leave Act. Businesses are covered by the Act if they employ 50 or more workers in a 75-mile radius. While workers employed at these covered work sites are more likely to have heard of the FMLA than other workers, almost 30 percent do not know about it. Among workers at work sites not covered by the Act, almost half (47 percent) have never heard of it.
Making sure that all employees know about the FMLA is a high priority for improving the effectiveness of the Act. The Department of Labor has taken some important steps to improve the public’s knowledge of the FMLA with its recent publication of “Need Time? The Employee’s Guide to the Family and Medical Leave Act” and the associated webinar, which reached thousands of viewers. But the employee survey also showed that the most common way that workers learn about the FMLA is from their employers. Nearly half of workers at covered businesses (49 percent) learned about the FMLA from a poster or other posted notice in the work site; two-fifths learn about it from communication from their employer or the Human Resources Department where they work. Far fewer employees at work sites that are not covered by the Act learn about the FMLA in these ways: 32 percent and 24 percent respectively.
Employers play an important role in informing workers about standards for family and medical leave, so it is important that they know what the FMLA covers and communicate this to employees. The work site surveys found a surprising amount of misinformation among employers about the FMLA, including at businesses that are covered (i.e., employ 50 workers in a 75 mile radius) by the Act. Of work sites that meet this criterion and are covered by the FMLA, 11.5 percent reported that they were unsure if they are covered and 13 percent reported that they were not covered. Thus nearly a quarter of covered work sites employing nearly a tenth of all workers (9 percent) do not know that the FMLA applies to them.
Virtually all employers (99 percent) at covered work sites allow employees to take leave for at least one of the qualifying reasons for an FMLA leave, but a surprisingly high 20 percent fail to conform to some requirement of the Act. These employers do not permit employees to take leave for one or more FMLA qualifying reasons for leave. This includes large employers – indeed, nearly a third of workers (32 percent) are employed at the 20 percent of work sites that are not in full compliance with the Act. After 20 years’ experience with the FMLA, this is an unconscionably high proportion of employers who are violating the law. A two-pronged approach of outreach and education to employers to improve their knowledge and understanding of the FMLA, directed mainly to smaller employers, and stricter enforcement of the Act, directed mainly at large employers who should know better, is likely to be the best way to remedy this situation.
FMLA leaves are job-protected, meaning that an employee who takes such a leave is guaranteed that they will be able to return to their same job or a comparable job with their employer. Nearly all covered employers (98 percent) report that they guarantee that employees who take leave for a qualified FMLA reason can return to the same job. Employers are not allowed to fire workers who take an FMLA leave, pressure employees to return to work, or retaliate against employees who take FMLA leaves by not promoting them. The DOL surveys suggest that these key provisions of the Act are not always honored. Most eligible employees who need a leave take it, but a small minority (5 percent) foregoes a needed leave. A little more than 15 percent of eligible employees reported that they did not take a needed leave because they were afraid they would be fired and 4 percent reported that they thought they would lose seniority or opportunities for advancement. Workers also report that they return to work before they are ready because they are pressured to do so by their employer or because they are concerned about losing seniority or the potential for job advancement. Twelve percent of eligible employees report that they felt pressured to return to work, and 22 percent report that they returned to work because they were concerned that they would lose seniority or opportunities for advancement. Outreach, education and enforcement should address these types of noncompliance as well.
