Forum: It's time for Minnesota to join family leave movement

As the federal Family and Medical Leave Act (FMLA) goes beyond its 25th anniversary, there are calls afoot to expand it by enlarging its coverage and, from some quarters, to convert it from an unpaid leave of absence for employees to receive compensation while on leave, in whole or in part, by their employers. Meanwhile, Minnesota remains in the nether region, lagging behind a growing number of states that have enacted their own, often more-expansive measures.

The law was conceived during the 1980s to allow women time off from work for childbirth and postpartum recovery. The original FMLA was passed by Congress in 1991, but the first President Bush vetoed it.

Although enacted in February 1993, it did not go into full effect for another year, in early 1994. Over the next 25 years, the law, which allows employees in midsize and large workplaces to take time off for health-related reasons, generally 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 workforce, during the first decade of its existence.

Unlike some other employment laws, such as the Americans with Disabilities Act (ADA), the FMLA has not been the subject of many restrictive court rulings. The Supreme Court has addressed the FMLA infrequently, dealing largely with technical issues and without impairing its basic characteristics.

Efforts have been made to spread the law to more employees and make it more user-friendly for those who are covered. Democrats in Congress are chafing to enlarge coverage. Republicans have made unsuccessful attempts to rein in the law or roll back some of its provisions.

But as public attitudes have shifted to a more family-friendly attitude, some Republicans have supported maintaining or expanding the FMLA. President Donald Trump, both during the campaign and in addressing Congress, has called for some form of paid leave, but no meaningful legislation and initiatives have been proposed. The Department of Labor, which oversees enforcement of the law, has confined itself to minor technical changes.

Because the FMLA applies to workplaces with 50 or more employees, it covers only about 25% of the workforce. Those who are covered may take unpaid leave 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; for maternity or paternity leave before or after childbirth; or for adopting a child.

Employees can use any accrued sick leave or vacation leave to be paid during the time that 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 suit for retaliation and 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% 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 restiveness with the restrictions in the federal law have led many states and local units of government to come up with their own mini-FMLA measure more than 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 leaves of absence, including some paid leaves, for those who are not covered by the FMLA.

The mini-leave laws enacted in Minneapolis and St. Paul, providing some increased time off for sick leave, are extremely modest steps in that direction. But on a statewide basis, Minnesota is a laggard.

The state does not have its own mini-FMLA. The closest parallel is the Minnesota Pregnancy and Parenting Leave Act, which applies to employers with 21 or more employees. That law allows parents up to 16 hours per year of unpaid time off from work to participate in their children's school activities, and it 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 25 years of experience under the FMLA reflect that the improprieties are far outweighed by the legitimate utilization by employees. As the momentum to expand the concept spreads, it's time for Minnesota to jump on the bandwagon belatedly during the upcoming legislative session. It would be a fitting way to mark a quarter-century of the FMLA.

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