As The FMLA Approaches 30, Is It Showing Its Age?
“When you're 30 you're old enough to know better, but young enough to go and do it.” Bridget Bardot
Posted on 10-31-2022, Read Time: Min
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While it has been a game-changer for workers, businesses, and our society, as FMLA approaches 30 it is an opportunity to take stock and assess - see if it can adapt to our ever-changing workplace.
Since its enactment in 1993, FMLA has provided up to 12 weeks of job-protected leave of absence per year for an employee to care for a serious health condition impacting the employee or a family member, bonding with a new child, and tending to matters related to a family member’s active-duty deployment.
The law and corresponding regulations have gone through two major revisions since then, but no major changes have been made in more than 10 years. Yet, spurred on by technology, a changing workforce, new state leave laws and of course a pandemic, there has been a dramatic evolution in how, where and when we work. And these changes have led to legitimate questions as to how to apply FMLA.
These include fundamental definitions of key components of FMLA. For example, a “family” is much different today than it was 30 years ago. As a result, increasing numbers of employees have caregiver responsibilities – children, elderly parents, siblings and their children and others. The legal protections outside of the FMLA for caregiver employees are broad and numerous and growing every year. While
some employers have implemented family-friendly policies and benefits to assist employees dealing with caregiver responsibilities, there remain significant administrative challenges and questions for both employers and employees on how to properly apply FMLA to a growing list of potential family members.
Similarly, there are questions about what constitutes a serious health condition. Generally, cosmetic surgery is excluded, but what if such surgery uncovers a serious illness or is part of treatment and/or recovery? And many employers erroneously read the exclusion to apply to any elective procedure even though the FMLA has no such limitation. While no law can ever provide a comprehensive list of health conditions, greater guidance beyond one-off litigation is necessary to provide clarity.
Likewise, the changing nature of how and when an employee works has clouded application of the FMLA. Questions abound regarding how to properly calculate a work week and determine the leave entitlement for an employee working remotely with no set hourly schedule – a situation far more common today than before March 2020.
Thirty years later there even remains confusion on the process to properly certify a leave request. For example, when is an employer justified in requiring a second (or third) opinion to confirm the validity of the health care provider’s original certification – the term “validity” is never defined in the regulations! Moreover, the regulations hint but never state that an employer can request a second opinion only prior to the initial approval of leave, and then not again until the annual certification.
While FMLA provides job protection for medical leave, it doesn’t require that leave to be paid. Every year for the past several, federal paid leave laws are proposed in Congress. However, despite favorable popular opinion, the passage of a national paid leave law remains elusive for a number of reasons, and prospects remain bleak in the foreseeable future. In the meantime, states, municipalities, and corporations have stepped into the breach to provide paid medical and family leave laws and policies. While this certainly benefits employees and families in a covered jurisdiction, it has created a tangled web of confusing and conflicting regulations for many employers.
In fact, in some cases, state laws can actually undermine FMLA as they may provide more flexibility to workers to take paid leave for reasons or durations that supersede those covered by FMLA. For example, many state leave laws include “safe leave” when the employee or a family member is the victim of domestic violence and allow an employee to take leave to care for a broader spectrum of family members than the FMLA’s parent, child, or spouse. Ultimately, FMLA is not a choice – it is a law that must be followed by both employer and employee to assure protection.
But many state laws allow the employee to choose whether to use the job protected and/or paid leave or save it for a later event. The mishmash of leave laws, each with unique definitions of covered populations and leave reasons, makes administering FMLA together with other laws costly and time-consuming.
Because the law has not been amended in recent years employers and employees must rely on the courts or opinion letters from the Department of Labor to provide guidance on some of the most basic tenets of the law. However, each case is unique and can only provide hints at how to administer FMLA properly overall.
No law is perfect, and it is unlikely that any updates to FMLA or its regulations, whether providing for paid leave or not, will answer every question and clarify every issue. But without legislation or regulations that conclusively clarify the most basic of FMLA issues, employers and employees will be left trying to navigate FMLA without adequate guidance. And that’s only good news for employment lawyers.
Reaching thirty years is undoubtedly a reason to celebrate. But the FMLA, like all of us, must evolve to avoid losing its relevance as the years pass.
Author Bio
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Marti Cardi is Vice President – Product Compliance for Matrix Absence Management. She is responsible for ensuring that Matrix’s absence management and accommodation services for outsourcing employers are offered in compliance with applicable federal and state laws and industry best practices. Marti is a frequent speaker and recognized industry expert and thought leader and is the founder, lead author, and executive editor of Matrix Radar, an industry blog on absence and benefits. Visit Matrix Absence Management Connect Marti Cardi |
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