Minnesota needs to address family leave shortfalls

The call by President Biden for a federally funded paid family leave program in his first address to Congress earlier this year highlights the paucity of the leave rights for employees in Minnesota and the need to bolster them.

Enacted in 1993, the Family and Medical Leave Act, better known by the acronym FMLA, has been popular, widely used and successful.

Although originally conceived during the 1980s to allow women time off from work for childbirth and postpartum recovery, it has expanded to cover employees needing a temporary respite from the workplace to care for their own needs, those of relatives including children, spouses, and parents, and pre-delivery and post-partum pregnancy and adoption.

But the federal law has many limitations. Because it applies only to employees who have been at a workplace for a year and at companies with 50 or more employees, it covers only about 20% of the workforce and fewer than 10% of low-income earners.

Above all, under current law, the leave is unpaid, although employers can unilaterally decide to subsidize employers on leave, which some large companies do, largely as a tool for recruiting or maintaining top talent. Employees can use any accrued sick or vacation leave to be paid during the time they are off 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. An employer who fails to do so may be subject to a lawsuit for retaliation and may be required to reinstate the employee as well as pay damages.

Even with its proposed expansion in President Biden's plan, the Federal FMLA is no panacea. There is no assurance it will make it through Congress, and even if it does it is uncertain what it will look like if enacted. Further, the measure would still cover only about one-fifth of all employees.

Additionally, its decade-long gestation period leaves lots of that portion of employees who are eligible to use it without leave for a long time.

These shortcomings highlight the need to supplement the federal laws at local levels, which has happened in many places — but not here in Minnesota.

The restrictions on the existing law have led many states and local units of government to come up with varied solutions. A number of states, the District of Columbia, and some municipalities have developed their own mini-FMLA measures to fill in some of the crevices existing under the federal measure. Although varied, they generally provide leaves of absence, including four providing paid leaves, for many employees not covered by the FMLA. But Minnesota is not one of them.

Mini-leave laws enacted in recent years in Minneapolis and subsequently in St. Paul, having withstood legal challenges, provide some increased time off for sick leave. But they constitute extremely modest steps in that direction. However, on a statewide basis, Minnesota is a laggard.

There are, to be sure, incidents in which employees have abused the FMLA and other leaves of absence. But nearly 30 years of experience under the FMLA reflect that the improprieties are far outweighed by the legitimate use by employees.

The outcome of Biden's call to upgrade the FMLA at the federal level will not be known for some time. Any measure that is enacted may need to be scaled down from the administration's expansive view to attain some degree of bipartisan support it may need to bring it from the drawing board of Congress to the living rooms of the country, even if it takes a decade to do so.

Meanwhile, as the momentum spreads to expand the concept, the Minnesota Legislature should overcome its inertia to join the large and growing number of states and localities with their mini-FMLA's. There's ample time and a good political opportunity to come up with an FMLA in 2022.

When it comes to taking time off for family and medical reasons, there's no place like home.

Marshall H. Tanick is an employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.