Business forum: It's a successful 20 years for the FMLA

  • Article by: MARSHALL H. TANICK
  • Updated: January 27, 2013 - 12:40 PM

The federal law that allows time off for health reasons has spawned other leave laws around the country.

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Two decades ago, President Bill Clinton signed the federal Family & Medical Leave Act (FMLA), which allows employees in midsize and large workplaces to take time off for health-related reasons. It has been one of the most effective and efficient employment laws ever passed.

The law was conceived, no pun intended, during the 1980s to allow women time-off from work for childbirth 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 became an issue in the 1992 presidential campaign. After Clinton ousted Bush, Democratic majorities in the House and Senate passed the new FMLA within the first couple of weeks of his first term.

As it observes its platinum anniversary on Feb. 5, 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 percent of the eligible workforce, during the first decade of its existence and the number has no doubt risen since then.

The law has generated some political heat, including an effort by some Republicans to trim it. But the law has withstood 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 Supreme Court has addressed FMLA on three occasions over the past 20 years, dealing largely with technical issues and not impairing its basic characteristics.

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. 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 percent of the workforce. 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 childbirth; 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.

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 a 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.

One exception to the reinstatement requirement concerns "key" employees, defined as those within the top 10 percent 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.

Mini-measures

The federal law has formed the model for mini-FMLAs in many places. Nearly two dozen states and local units of government, including Wisconsin, California, Ohio, the District of Columbia, and the city of Seattle have their own measures that provide leave of absences, usually unpaid, for those who are not covered by the FMLA.

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 six weeks of unpaid absence for maternity or paternity leave.

There are, to be sure, incidents in which employees have abused the FMLA and other leaves of absence. But two decades of experience under the FMLA reflect that the improprieties are far outweighed by the legitimate utilization by employees.

  • ABOUT THE AUTHOR

    Marshall Tanick is an attorney with the Twin Cities law firm of Hellmuth & Johnson, PLLC. He represents employers and employees in a variety of workplace matters. His e-mail address is mtanick@hjlawfirm.com.

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