The Family and Medical Leave Act (FMLA) -- the federal law that gives certain employees the right to take up to 12 weeks off per year to care for a new child, to care for a seriously ill family member, or to recover from their own serious health condition -- has been controversial since the day it was signed by President Clinton. Advocates for employers have argued that the law is too easily abused and imposes difficult compliance obligations. On the other hand, advocates for employees have said that the law doesn’t go far enough in helping employees balance the demands of work and family, particularly because it requires only unpaid leave.
This debate has only gotten more heated in recent days, as Congress, federal agencies, and advocacy groups have all weighed in with various proposals to limit or extend the FMLA. It’s impossible to predict whether or how the law will change once the dust settles, but one thing’s for sure: This is a key area for HR professionals, business owners, and employees to keep an eye on in 2007. Here are some of the most interesting developments currently afoot.
The Department of Labor’s Report on the FMLA Regulations
In December 2006, the Department of Labor (DOL) -- the federal agency that interprets and enforces the FMLA -- issued a “Request for Information,” asking the public to comment on their experiences with the law. Before this Request was issued, the DOL had said that it was planning to issue new FMLA regulations. In fact, the DOL has said so for years, ever since the U.S. Supreme Court struck down one of the regulations in 2002. Rather than simply issuing new proposed regulations and asking for public comment on those, however, the DOL asked more generally for information on how the FMLA was working and whether any regulatory changes were necessary.
And its request was answered: The agency received more than 15,000 comments on the FMLA. In a June 2007 report summarizing the comments, the DOL noted that these comments generally broke down into three categories:
- thankful letters from employees who had used the law
- requests to expand the law’s coverage (for example, to provide more time off, paid leave, or leave for additional reasons), and
- frustration from employers about problems with attendance and staffing relating to employee use of unscheduled leave for chronic health problems.
The DOL has not yet issued any proposed changes to the regulations, but advocacy groups have pressed for further action. Stay tuned.
Proposed Legislation
Congress has been very busy in this area, as well. There are currently a number of bills pending on family and medical leave, including:
- the Family Leave Insurance Act, which would provide partial wage replacement -- paid out of a federal insurance program funded by the government and payroll taxes on employees and employers -- for up to eight weeks of an employee’s FMLA leave
- the Healthy Families Act, which would require covered employers to give employees up to seven paid sick days per year, and
- the Support for Injured Servicemembers Act, passed by the Senate in early August as part of its reauthorization of the State Children’s Health Insurance Program, which would allow employees to extend their FMLA leave up to six months to care for family members who were injured in military service.
Discrimination Against Caregivers: The EEOC Weighs In
The Equal Employment Opportunity Commission (EEOC) -- the federal agency that enforces laws prohibiting discrimination in employment, including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act -- recently issued enforcement guidance on discrimination against employees who have caregiving responsibilities.
The EEOC does not enforce the FMLA, and none of the laws for which the EEOC is responsible expressly prohibit discrimination against caregivers. The EEOC was quick to point out that its guidance was not intended to create new rights for employees or a new type of lawsuit. Instead, the guidance highlights ways in which an employer’s decisions regarding employee-caregivers might discriminate based on a protected characteristic. For example, an employer who assumes that new mothers won’t be as dedicated to their jobs or that fathers don’t need to take time off to care for a child is relying on gender-based stereotypes.
What’s Next?
In the coming months, we may -- or many not -- see changes in the FMLA regulations, new laws that affect family and medical leave, and increased enforcement action targeting discrimination against caregivers. While we don’t know exactly what the future holds for family and medical leave, there’s no doubt that this will continue to be a hot topic in the employment law arena.
Effective date:
Aug. 08, 2007
This update affects these Nolo products:
