diversitydatakids.org: quality of life and diversity data on families
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Family and Medical Leave Act

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The Family and Medical Leave Act guarantees unpaid job-protected leave from work for eligible employees who need time off to care for a new child, a family member’s serious health condition, or an employee’s own serious illness. Rigorous non-experimental evidence shows that overall the FMLA has positive effects on leave-taking and some child health outcomes. However, these benefits accrue primarily to workers of higher socioeconomic status, in part due to limited eligibility and affordability for vulnerable workers. In order to understand the FMLA’s effectiveness and the improvements needed to reduce inequities, the diversitydatakids.org policy equity assessment considers the FMLA’s logic, capacity and research evidence within the policy’s historical and present context.
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Logic

What is the FMLA?
What is the purpose of the FMLA?
What does the FMLA do?


Equity in the FMLA’s logic (what is logic?)
The Family and Medical Leave Act is designed to address employees’ need to balance their work duties with their own health needs or caretaking responsibilities for newborns and seriously ill family members. Research finds that parents’ ability to participate in their children’s healthcare leads to better child developmental outcomes, including faster recovery periods.[1] Yet access to family and sick leave provided through employer policies is unequal. Low-skill, low-wage, racial/ethnic minority, female and immigrant workers are significantly more likely to have fewer employer-provided benefits, such as health insurance, and less time off.[2] Some of these populations are also more vulnerable to health conditions,[3] which means that they may be the most in need of, but the least likely to access worker benefits that can help address health issues.

The FMLA is federal legislation that increases access to medical and family leave from work by guaranteeing job protection for eligible employees. The FMLA seeks to promote gender equity in the workplace and in the home by providing job-protected leave for both men and women. Legislators envisioned that by encouraging both men and women to take family leave, the FMLA would reduce the incentive for employers to discriminate against female employees, who typically bear more family caregiving responsibilities. They also hoped that the opportunity to take job-protected leave would encourage men to participate more equally in parenting and caregiving responsibilities.[4] Unfortunately, the unpaid nature of FMLA leave disproportionately hinders access to job-protected leave for low-wage workers. In this sense, the FMLA exacerbates existing inequities between already-vulnerable low-wage workers and other workers.

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What is the FMLA?

The FMLA is a federal labor standard passed in 1993 that establishes and upholds eligible workers’ rights to take unpaid, job-protected leave from work for select caregiving or medically-related reasons. Prior to the FMLA guarantee, a patchwork of state leave laws and employer leave policies existed across the United States. A 1996 Department of Labor (DOL) report to Congress found that few employers and states provided leave from work for all of the reasons covered by the FMLA or offered the same level of job protection and benefits continuation during leave. The report found that under state and employer leave policies before the FMLA, “the extent of leave available to employees prior to 1993 increased with firm size and for employees with higher levels of skill and income.”[5] In addition, most employees had no access to maternity or paternity leave, and job protection for maternity, paternity and parental leave was uncommon. Policies allowing family leave to care for a seriously ill family member (such as a child, spouse or parent) were even rarer.[6] The FMLA filled this gap by providing job-protected family (including parental) and medical leave to eligible employees across the nation. Importantly, the FMLA is not universal. About 60% of employees are eligible for FMLA leave;[7] the remaining 40% are excluded due to FMLA criteria which do not cover employees who work for small businesses (fewer than 50 employees), who have worked for their employer for fewer than 12 months, or who worked less than 1,250 hours in the last year (see eligibility criteria for more information).

Additional information:

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What is the purpose of the FMLA?

The primary goals of the FMLA are to promote workers’ family leave-taking, employment stability and security, and work-family balance.[8] The Act recognizes that parents’ ability to care for new children and sick family members is important for child development and family cohesiveness. Furthermore, employment policies that support parents’ caregiving roles are crucial given the increase in single parent households and two-parent households where both parents work. The Act recognizes that caregiving responsibilities are primarily born by women, but that labor standards applying to only one gender may lead to employment discrimination against that gender. Although not stated in the original legislative purpose of the FMLA, an additional consideration for improving access to medical/family leave is the aging of the U.S. population. The rising population of elderly people, for whom care is primarily provided by spouses and adult daughters, also requires flexible employment policies.[9] A logic model of the FMLA visually presents the pathways through which labor standards and other factors are expected to influence family financial stability and child health outcomes.[10]

FMLA logic also has several secondary goals, including increasing worker productivity and minimizing any employer-born costs or burdens stemming from its provisions.

Equity and Context:
FMLA legislation details several explicit equity goals. The Act is explicitly designed to minimize gender discrimination and promote equitable employment opportunities for men and women. It acknowledges that because of societal norms, caretaking responsibilities fall disproportionately on women, and so affect their working lives more than those of men. Prior to the passage of the FMLA, much of the effort around family leave policies focused on women. However, in 1984 federal district court ruling struck down a California maternity-leave law as sex discrimination against men. In response, many stakeholders came together to design a federal law that would not be considered discriminatory toward men. Thus, the FMLA arose from a push to reduce employment discrimination against women, but is explicitly gender neutral to withstand legal scrutiny.[11] The gender neutrality of the FMLA equally promotes both men’s and women’s access to medical or family leave.

A second equity focus in the FMLA legislation involves health-vulnerable employees and families. The Act specifically acknowledges “inadequate” job security for employees with serious health issues.[12] Workers’ employment stability is jeopardized if they are forced to risk losing their jobs due to their own serious health condition or to care for a newborn or a seriously ill family member.[13] By guaranteeing job protected family or medical leave for eligible employees, the Act is designed to promote more equitable employment security for health-vulnerable workers and families. However, while the FMLA’s job protection may promote job stability, its unpaid nature may also put workers on leave in financially tight situations. Therefore, the Act is designed to address employment stability, but is less equipped to ensure financial stability for health-vulnerable families who cannot afford to take unpaid leave.

Interestingly, improved child and worker health are not actually listed as a primary or secondary goal in FMLA legislation. While it can be inferred that the FMLA goals of increased leave-taking and work-family balance for families with health needs are aimed at facilitating access to health services and improving health outcomes, the FMLA does not explicitly list health as a goal, nor are health outcomes measured in government-sponsored surveys of FMLA leave usage. This omission should be addressed since the FMLA clearly has important ramifications for the health of workers and their families.

In contrast to the explicit equity focus on gender and health-vulnerability, the FMLA does not acknowledge inequities in access to and use of leave for workers of lower socioeconomic status (SES) and racial/ethnic minority groups. Although these groups are less likely to have access to employer provided leave policies,[14] the FMLA does not include an explicit nor implicit focus on improving outcomes for these vulnerable populations. The ramifications of this omission are visible in the FMLA’s implementation and effectiveness and severely hamper the legislation’s ability to positively improve equity in access to job-protected leave.

Additional information:

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What does the FMLA do?

The FMLA entitles eligible employees to take up to 12 weeks of job-protected, unpaid leave for a qualifying reason in any 12-month period. This means that after an employee takes FMLA leave, he or she must be allowed to return to the same or an equivalent position with the same pay and benefits. Importantly, if an employee is enrolled in employer provided group health insurance, the employer is required to maintain this benefit while the employee is on leave. The employer is not required to maintain other benefits during FMLA leave (such as life insurance, disability insurance, or pensions[15]) unless the employer would grant such accruals for other types of leave.[16] Eligible employees may take FMLA leave for the following qualifying family and medical reasons:[17]
  • The birth of a child and to bond with a newborn within one year of birth.
  • The placement of an adopted child or foster-care child with the employee, and to bond with the newly placed child within one year of placement.
  • To care for a spouse, child, or parent with a serious health condition.
  • An employee's own serious health condition that renders him/her unable to perform the essential functions of his/her job.
  • Qualifying exigency leave: an urgent need arising from the foreign deployment of the employee’s spouse, son, daughter or parent on covered active duty[18] that falls under one of the following nine categories: (1) Short notice deployment (notice of one week or less), (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and recuperation, (7) Post-deployment activities, (8) Additional activities agreed to by both employer and employee, and (9) Parental care.[19]

In the case of an employee’s own serious illness or that of a family member, the employee may take leave on an intermittent or reduced schedule basis, meaning that he or she may take time off in separate shortened blocks of time or in the form of a reduction in their regular work hours.[20] Intermittent leave is only available to workers for the birth, adoption or foster placement of a new child if the employer’s approval is obtained.[21]

In addition, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a service member in the military is entitled to take up to 26 workweeks of unpaid job-protected leave during a single 12-month period to care for the covered service member[22] with a serious injury or illness.[23] Click here for more information on FMLA leave for military families.

Equity and Context:

The FMLA promotes equity by targeting health-vulnerable families and addressing employment discrimination against women who are more likely to take leave to care for family members and are thus more exposed to job loss. However, the FMLA’s limited eligibility requirements (e.g., exclusion of workers in small firms) and the unpaid nature of the leave present access barriers to low-income workers. These barriers disproportionately affect Hispanic and black workers. The case of the FMLA illustrates that for a given policy, equity goals may be present for a particular subgroup (e.g., women) but not addressed for others (e.g., low-income). For more on issues around the unpaid nature of FMLA leave, click here.

Additional information:

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Capacity

Who is eligible under the FMLA?
Who takes leave under the FMLA?
How is the FMLA administered and funded?
How does the FMLA work in practice?
How is FMLA compliance enforced?

Equity in the FMLA’s capacity (what is capacity?)
In many ways, the FMLA has the capacity to promote equity. The Act serves an important need, as indicated by the more than 14 million workers who took FMLA qualifying leave in 2011 to care for a new child, a seriously ill family member, or their own serious illness.[24] Evidence suggests that the FMLA has increased the number of U.S. workers eligible for family and medical leave, both overall and for certain vulnerable subgroups. For example, the percentage of full-time employees working in firms offering maternity and/or paternity leave (paid or unpaid) increased substantially by 20 to 40 percentage points after the passage of the FMLA.[25] In addition, by covering all public sector agencies, the FMLA has resulted in wide eligibility for black workers who are overrepresented in the public sector. The increased eligibility for unpaid leave among black parents is noteworthy as on average this population faces lower wages and job quality[26] and their children have increased health risks for certain diseases.[27] However, the FMLA does not improve equity in eligibility for all vulnerable subgroups. In particular, Hispanic parents have the lowest eligibility for FMLA leave compared to other racial/ethnic groups, and certain types of workers are excluded altogether if they do not meet tenure and hour eligibility requirements (such as some part-time workers, seasonal workers, or very new immigrants who do not meet the tenure requirements for FMLA eligibility).

Job-protection is a fundamental piece of FMLA legislation, and in most circumstances, when workers return from leave they are guaranteed their same job or an equivalent position. In addition, the FMLA requires that health insurance and employer contributions to insurance premiums are continued throughout an employee’s leave. By ensuring job-protected time off, the FMLA facilitates the use of health services, such as newborn wellness checkups and substance abuse treatment, promoting improved health among employees and their families. Employees may take leave all at once, or intermittently, when medically necessary to care for a seriously ill family member or the employee’s own illness.[28]

While these aspects of the FMLA benefit new parents and health-vulnerable employees and their families, the policy also harbors capacity constraints that present serious equity challenges. Eligibility criteria exclude many workers and families from coverage (40% of workers),[29] especially the most vulnerable such as workers with less stable job histories, involuntary part time workers, seasonal workers and small-business employees. Even among eligible families, the fact that the FMLA is unpaid renders leave unaffordable for many families, limiting leave-taking for many workers. Importantly, black and Hispanic working parents are estimated the least likely to be both eligible for and able to afford FMLA leave, compared to white and Asian working parents. In addition, medical FMLA leave can only be used for serious health conditions, but not for medical appointments which may be important for long-term health but are not considered ‘serious’, such as check-ups, follow-ups and preventive care. Lastly, the FMLA does not allow employees to take leave to care for many family members, such as grandparents, grandchildren, or in-laws, who are not considered to be “FMLA qualifying family members” (unless they have acted as a parent to the employee when he/she was a child, or the employee acts as a parent for them – such as a step-parent. For more information, click here).

FMLA implementation also faces constraints. A 2011 survey of FMLA employers and employees found that almost 30% of employees working for covered firms had not heard of the FMLA. Moreover, 80% of firms cover work during leaves of one week or longer by asking employees on leave to work during designated leave time, even though this is expressly prohibited by the FMLA. These examples highlight how increasing awareness and understanding of the FMLA among both employers and employees is crucial to improving the policy’s capacity. In addition, FMLA enforcement is mostly a reactive process dependent upon employee-driven complaints. This places the burden of compliance on the employees, who may or may not have the resources and ability to defend their rights. Importantly, in 2010 the Wage and Hour Division (WHD), responsible for FMLA enforcement, began realigning enforcement efforts
to look broadly and systemically at employer compliance based on industry knowledge and presence of vulnerable workers rather than relying on individual complaints.[30]

Limitations in eligibility, affordability, and compliance are reflected in the unequal effectiveness of the FMLA, which has fewer positive benefits for vulnerable workers (see Research Evidence for more information). Importantly, state-level paid family leave programs with expanded employer and employee coverage may offer solutions to many of the FMLA’s capacity limitations and improve the Act’s ability to achieve its goals of increasing leave-taking and facilitating work-family balance for all workers.


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Who is eligible under the FMLA?

Fifty-nine percent of all employees in the United States, roughly 90 million workers, were covered by the FMLA in 2011.[31] Because FMLA eligibility criteria are described in federal legislation, there is no state variation in coverage requirements for FMLA leave. Coverage is determined both at the employer level as well as the employee level.[32]

Eligible employees may take up to 12 weeks of job-protected, unpaid FMLA leave in any 12-month period for specific qualifying reasons, as previously described. In general, these reasons are to care for a new child (birth, adoption, or foster care), to care for a seriously ill spouse, child, or parent, or to treat the employee’s own serious illness.

The FMLA specifies which types of employers are legally obligated to provide FMLA leave. These employers include:
  • All public sector agencies, including local, state or federal government agencies.
  • All public or private elementary and secondary schools.
  • Private employers with at least 50 employees in at least 20 workweeks in the current or preceding calendar year.

In order to be eligible for FMLA leave, an employee must meet several employee-specific criteria, as follows:
  • Works for a FMLA-covered employer.
  • Works at a worksite where the employer has at least 50 employees within 75 miles.[33]
  • Has worked for at least 12 months for the employer (does not have to be continuous).
  • Has worked for the employer for at least 1,250 hours during the 12 months immediately before FMLA leave begins (this is, on average, 24 hours per week).

Eligibility criteria for the FMLA were expanded in 2008 to provide special leave to military families and in 2010 to include airline crewmembers who work nontraditional hours.[34] In addition, a second expansion in eligibility occurred after the federal government legally recognized same sex marriage. In June 2014, the Department of Labor’s WHD issued a notice of proposed rulemaking to extend FMLA protections to eligible employees in legal same-sex marriages regardless of their state of residence.[35] A final rule has not yet been released.

There are limitations to the protections of FMLA leave. To reduce employer burden, the FMLA allows employers to deny job-protected leave to “key” employees. A key employee must be a salaried, FMLA-eligible employee who is in the highest paid 10% of all employees. To deny job restoration to a key employee, “an employer must have determined that substantial and grievous economic injury to its operations would result from the restoration, must have provided notice to the employee that he or she is a key employee and that restoration will be denied, and must provide the employee a reasonable opportunity to return to work.”[36]

Equity and Context:
Although the FMLA covers almost 60% of workers in the U.S., the remaining 40% excluded by the eligibility criteria represent a disproportionate share of low-wage workers with low educational attainment.[37] For example, the requirement to have worked for a single employer for 12 months and for 1,250 hours excludes some part-time workers, contingent workers, new immigrants (who may not meet the 12 month tenure requirement), and migrant farmworkers or other seasonal workers. In addition, there are many situations that require family leave that are not covered by the FMLA. For example, the law only protects leave for qualifying family members – defined as spouses, children and parents – so workers cannot use the FMLA to care for grandparents, grandchildren, siblings, in-laws or unmarried domestic partners. As a result, FMLA coverage does not reflect the caregiving needs of many families today.

Among all workers, job-protected leave is especially important for working parents, given research showing that when a parent is present to provide care, children recover faster from illnesses and injuries, have shorter hospital stays, and are more likely to receive preventive care.[38] However, diversitydatakids.org calculations show that FMLA coverage is even more limited for working parents, 46% of whom do not meet the eligibility criteria.[39] Moreover, there are racial/ethnic inequities in FMLA coverage of working parents. For example, 50% of Hispanic working parents are not covered by FMLA, compared to 46% of white (non-Hispanic) working parents and 40% of black working parents.[40] These statistics reveal important equity constraints in FMLA eligibility criteria that not only limit coverage for all U.S. working parents, but also distribute coverage inequitably by race/ethnicity, particularly for Hispanic parents. This inequity may have a disproportionate impact on child health in the U.S. given that Hispanics represent nearly 25% of the U.S. child population and are the only group in which the majority of households are families with children.[41]

Although the original draft of the FMLA legislation had broader and more inclusive eligibility criteria, compromises were made that limit the scope of coverage in order to ensure the bill’s political viability. Raising the private employer coverage threshold to a minimum of 50 employees and narrowing qualifying family members to spouses, children and parents were two such compromises.[42] While these compromises may have contributed to the FMLA’s successful passage into law, they have also denied potential benefits to many workers.

Recognizing the limitations of the FMLA, several states have enacted state family unpaid medical leave and parental leave laws that expand upon FMLA coverage, qualifying family members, or qualifying reasons for job protected, unpaid leave. For example, in Hawaii, qualifying family members explicitly include in-laws, grandparents, and stepparents. In Maine, private employers with 15 or more employees are covered, and in Washington state workers are eligible if they have been employed for at least 680 hours in the qualifying year (compared to 1,250 hours required by the FMLA).[43] These state laws represent more inclusive policies; however, many states have not yet taken measures to expand eligibility for job-protected leave, resulting in geographic inequities in eligibility. For more details on expansions to FMLA qualifying family members, click here.

Additional information:

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Who takes leave under the FMLA?

A 2012 survey of U.S. workers and worksites found that 16% of the FMLA-covered workforce, or roughly 14 million workers, took leave for a qualifying FMLA reason between mid-2011 and mid-2012.[44] Among FMLA-eligible workers, those with at least one child in the household are statistically significantly more likely to take leave (20%) than those with no children in the house (13%), implying that FMLA leave serves an important need for parents.[45]

The survey also found there are multiple reasons why employees take leave. Just over half (55%) of all leave taken is in response to an employee’s own illness. Reasons related to a new child (including pregnancy, birth, adoption or foster care) account for 21% of leave taken, and the illness of a qualifying relative (spouse, child or parent) accounts for another 18% of leave. Two percent of leave is taken for other qualifying reasons, including military deployment or caregiving.[46]

Equity and Context:
The FMLA provides job protected leave to many employees who need time off to care for themselves or their families. As discussed in the logic section, one of the primary goals of the FMLA is to increase leave-taking. The fact that 16% of FMLA-eligible workers take FMLA qualifying leave demonstrates that the law is a first step towards providing important time off and job protection. However, limitations in FMLA leave, particularly the fact that it is unpaid, place it out of reach for many covered workers.[47] FMLA affordability concerns are especially relevant for working parents. Although 54% of working parents are estimated to be eligible for FMLA leave, only 34% are estimated to be eligible and can afford this unpaid leave. This situation is especially pronounced for Hispanic working parents, as a lower proportion are estimated to be eligible for FMLA leave overall (50%), and even fewer are eligible and can afford it (21%).[48] Therefore the unpaid nature of FMLA leave may place a disproportionate burden on working parents and other employees of certain racial or ethnic groups.

Recognizing the burden that unpaid leave can place on families and employees, three states--California, New Jersey and Rhode Island--have enacted laws offering paid family and medical leave.[49] In all three states, paid leave coverage is extended to all private sector employers[50] and is funded through employee-paid payroll taxes and administered by the states’ disability programs.[51] Accruing evidence from California’s paid leave program demonstrates the promising influence of paid leave on workers’ ability to take needed time off to care for themselves or their families (for more information, see the Research Evidence section). For more information on state variation in family and medical leave policies, click here.

Additional information:

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How is the FMLA administered and funded?

The FMLA is overseen by the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL). The WHD is responsible for the enforcement of several labor standards including the FMLA, the Fair Labor Standards Act (FLSA), and government contracts under the Service Contract Act. WHD compliance and enforcement investigators report to WHD area offices and district offices, which represent the front line of enforcement. All states are covered by at least one district office, and district offices report to one of five WHD regional offices which oversee enforcement in their region.[52] For a diagram of the relationships between FMLA responsible entities, click here.

Within the WHD national office, the Office of Policy, Division of
Enforcement Policy and Procedures houses the Branch of FMLA and Other Acts.[53] The Branch of FMLA and Other Acts is responsible for the development of enforcement policies and procedures specific to the FMLA. This Branch interacts closely with WHD district and area offices to aid the development and application of FMLA policy. Employers, employee groups and other stakeholders also have the ability to influence FMLA policy development and application through the federal rulemaking process. Click here for an example of how employer and employee concerns were taken into account in the development of FMLA regulations and policies.

The WHD is primarily an enforcement agency, but in addition to its investigations, WHD investigators, or other staff at local or national offices, provide technical assistance to employers and employees.[54] For example, employers and employees may write or call the national, regional or district offices with questions about the application of the FMLA. The WHD also frequently does presentations on the FMLA by request, usually to union groups, employers, employer groups, and at events heavily attended by employers. Compliance guidance and guidance on the interpretation of FMLA statutory and regulatory provisions are available online as well. Technical assistance is an important piece of enforcement as it improves understanding of and compliance with FMLA provisions.[55]

The FMLA is a labor standard, rather than a program, and it is not accompanied by any funding for implementation. The WHD receives no additional funding to enforce the FMLA. The 2014 fiscal year WHD budget (which includes enforcement for all labor standards under WHD jurisdiction) was $224,330,000, and the 2015 fiscal year requested WHD budget is $265,766,000. This is an increase of about $41.5 million over the 2014 budget, which includes almost $30 million for an additional 300 full time investigators to support the WHD’s efforts to move towards a more systematic enforcement policy.[56]

Equity and Context:
Since the FMLA has no associated funding, the number of workers who may be covered is unlimited. However, the lack of funding for paid leave severely constrains workers’ ability to afford unpaid FMLA leave. Moreover, the lack of funding for FMLA enforcement transfers the burden of compliance to the WHD, employers, and employees (e.g. enforcement is driven by employee complaints, placing the burden of knowledge and advocacy on employees). FMLA legislation and the Department of Labor’s budget also include no additional funding for employers to aid with administrative or data collection activities related to the FMLA. Therefore, the potential costs associated with unpaid leave are predominantly passed on to employers and employees.

Additional information:

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How does the FMLA work in practice?

In practice, FMLA implementation is carried out by employers and employees, with federal involvement restricted to dealing with compliance issues. Covered employers are required to post notices of FMLA rights and responsibilities at their worksites, and to provide written notice of FMLA expectations and obligations to any employee taking FMLA leave. Eligible employees who wish to take FMLA leave must provide advanced notice if possible. If an employee who requested FMLA leave is ineligible under FMLA criteria, the employer must provide a written notice to the employee.[57]

If an FMLA-eligible employee requests FMLA, employers may request documentation that the reason for leave is a FMLA-qualifying reason, for example, proof of an employee’s own illness or the illness of a spouse, child or parent. Employer and employee must negotiate certain details of the leave, including whether the employee needs to make co-premium payments to maintain group health insurance, whether the employee will use accrued paid leave for unpaid FMLA leave, and whether the employee qualifies as a “key” employee and the circumstances under which his or her leave would not be job-protected. The employer must also track leave usage and alert employees of the amount of leave counted against their FMLA leave entitlement. If the employee wishes to take foreseeable intermittent leave, he or she must work with the employer to schedule leave that will minimize disruption to the employer’s operations.[58] If the employer determines that the reason for leave is not a FMLA-qualifying reason, then the employer must provide written notice of that determination.[59]

Worksites have varying strategies for covering work during an employee FMLA absence.[60] For short leaves, the work is often put on hold until the employee returns. For longer leaves, worksites most commonly reassign the work to other employees, but may use other strategies such as hiring a temporary replacement. Worksites report that short planned leave is the easiest to manage, while unplanned episodic or intermittent leave and unscheduled leave of any duration are the most difficult. Indeed, intermittent leave has been the source of some debate and frustration among employers who feel that it has led to “uncontrolled absences” and “difficulties in maintaining necessary staffing levels.” In 2011, 23% of FMLA eligible employees who took leave in the past year took intermittent leave at least once.

Equity and Context:
The FMLA attempts both to protect employee rights to FMLA, while minimizing employer burden. The requirement that employees with foreseeable intermittent leave work with employers to determine scheduling, and the provision that employers may replace ”key” employees if their absence causes "substantial and grievous economic injury" to the business are two examples of FMLA efforts to avoid damaging the financial or operational viability of covered employers.[61] A 2011 DOL survey found that in general, very few employers report a suspicion of FMLA misuse by employees (only 2.5%) and most covered worksites report neutral or positive impacts of the FMLA on “employee productivity, absenteeism, turnover, career advancement and morale, as well as the business’s profitability.” However, larger worksites report more difficulty complying with the FMLA, including increased administrative costs.[62] Employers who need to replace leave-takers with temporary workers or overtime may incur additional costs as well. Overall though, survey results suggest that the implementation of the FMLA may not be overly burdensome for employers.

Implementation of the FMLA may be hampered by a lack of employee knowledge and understanding of the law. According to the DOL survey, in 2011, two thirds of all employees and 71% of employees at covered worksites had heard of the FMLA. While this represents the majority of workers, almost 30% of employees at covered worksites who may be eligible for FMLA were unaware of their right to take job-protected leave. In addition, among the small percentage of FMLA-eligible employees who reported that they needed leave but did not take it, 17% said they did not take it because they were worried they might lose their job.[63] This concern highlights a lack of understanding of employee rights under the FMLA and underscores the need for continued public education efforts around the FMLA. The gaps in employee awareness and understanding of the FMLA may present challenges to the full implementation of the law as it was intended.

Additional information:

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How is FMLA compliance enforced?

The FMLA is enforced by the Wage and Hour Division (WHD) of the DOL’s Employment Standards Administration, which investigates complaints of violations. The legislation expressly forbids employers from impeding or denying an employee’s right to take FMLA leave, retaliating against employees who took or attempted to take FMLA leave, or discharging or discriminating against employees who have complained about unlawful actions under the FMLA.[64] Employees who believe their FMLA rights have been violated are instructed to file a complaint with the WHD (which may result in a DOL investigation of the employer) or file a private lawsuit against the employer. Common violations include manipulating employee work hours to avoid FMLA responsibilities, discouraging workers from taking FMLA leave, and making an employee’s request for FMLA a negative factor in employment decision, such as hiring or promotions.[65]

The WHD investigated 1,634 cases of FMLA complaints in 2013, of which 744 (46%) were found to be cases of FMLA violations by the employer. As a result of these WHD investigations, $1.6 million were paid to employees in back-wages.[66] Beyond these statistics, little information is published detailing the efforts of the WHD to monitor and enforce FMLA compliance. However, a 2013 Government Accounting Office (GAO) report examined the WHD’s compliance efforts for FLSA, which monitors minimum wage and overtime pay violations among other aspects. The report found that the WHD lacks a systematic, data-driven approach to planning its enforcement efforts. In addition, the WHD has reduced FSLA-related interpretive guidance publications[67] since 2009 and does not have a clear, data-driven process to assess how to improve this guidance.[68] Both the FLSA and the FMLA are labor standards under the jurisdiction of the WHD; therefore, the GAO findings regarding the FSLA raise questions as to whether FMLA enforcement and compliance monitoring also needs to be updated. The WHD is making efforts to improve monitoring and compliance activities based on the recommendations of the GAO report.[69] For example, the DOL’s 2015 fiscal year budget request includes close to $6 million for “WHD to develop a new integrated enforcement and case management system that will allow investigators to better employ data analysis in identifying violations, targeting investigations and compliance assistance efforts, and evaluating the impact and quality of enforcement.”[70] In addition, the DOL 2015 fiscal year budget request included almost $30 million to hire new investigators to conduct more “directed investigations”[71] – broad investigations targeting industries and employers most likely to violate the FMLA and other labor standards, outside of the traditional complaint-driven process.

Equity and Context:

Although the FMLA is a federal law and national labor standard, in many ways FMLA enforcement rests on the shoulders of employees. With the exception of directed investigations, DOL investigations of employer violations only occur in response to employee complaints.[72] Employees must be aware of their rights, detect a violation of these rights, and take the initiative to file a complaint with the WHD or take legal action. This employee-based enforcement may inequitably disadvantage employees with less human capital, time or resources. Although there has been no analysis of employee awareness of FMLA rights by vulnerable subgroups, a study of California employee awareness of the state’s Paid Leave Program found that awareness was lower among employees who were low-wage, low-income, without employer-provided sick leave or vacation, and Latino.[73] Given the gaps in awareness for these more vulnerable subgroups in California, research is needed to determine whether the same is true nationally for the FMLA.

Prior to 2010, when the WHD did not have the capacity to investigate all FMLA complaints, employees were informed that their complaint would not be pursued but that they had the right to file a private lawsuit. In 2010, recognizing that “attempting to exercise rights on their own, or finding an attorney with the necessary experience and subject matter expertise to represent them, are significant and difficult obstacles to these workers obtaining justice,” the WHD collaborated with the American Bar Association Standing Committee on Lawyer Referral and Information Service (ABA LRIS) to create the ABA-Approved Attorney Referral System. Employees who are informed that the WHD will not pursue their complaint are now directed to the referral system that will help locate an ABA- approved LRIS provider in their area that, in turn, can help them find a qualified private lawyer.[74] Although the referral system is an improvement, it still places the vast burden of finding a lawyer and taking and paying for legal action on the employee. In addition, this enforcement model leaves employees who do not fully understand their rights or the legal process vulnerable to employer intimidation which may discourage them from filing a complaint. In essence, employee-dependent enforcement may place a disproportionate burden on employees and inequitably disadvantage those employees with fewer resources or time. It is also possible that employees who are seriously ill or who must care for a seriously ill family member – those who need time off the most – do not have the time or energy necessary to pursue legal action to protect their rights.

Of importance, however, is the fact that since 2010, the WHD has worked to increase the percent of directed investigations. The agency is continuing this effort, as demonstrated by the DOL’s 2015 budget request for additional funds for directed investigations. These directed investigations will also target industries with vulnerable workers where complaints are not common.[75] Thus, this request signals the DOL’s intentions to pursue a more proactive and systematic approach to FMLA enforcement that may reduce the burden of compliance on employees.

Additional information:

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Research Evidence

What research questions are asked to evaluate the FMLA?
What data are available to assess the FMLA?
What is the research evidence on the FMLA?
How should we interpret FMLA research evidence?


Equity considerations in the FMLA’s research evidence
(What is research evidence?)
The third stage of the diversitydatakids.org policy equity assessment is research evidence. Research evidence from rigorous studies shows that the FMLA is associated with increased leave-taking among both mothers and fathers – one of the policy’s primary goals— as well as improved child and infant health outcomes.[76,77,78] However, FMLA benefits do not accrue equally to all working parents. Married and college-educated women, who are more likely to be of higher socioeconomic status (SES), benefit most. Lower-SES parents (single and not-college-educated) experience few or no benefits from the FMLA.[77,78] Therefore, the FMLA may actually contribute to widening inequities in leave-taking and health for lower-SES families.

Importantly, recent evidence from a state-level paid leave program in California shows larger and stronger impacts on leave-taking for less-than-college-educated, single and nonwhite mothers than their white, higher-educated and married counterparts.[79] As a result, the evidence suggests that paid leave may be able to improve equity in leave-taking (and any associated economic or health benefits) for lower-SES and racial/ethnic minority families.

Bridging equity and effectiveness:
Does the FMLA close socioeconomic or racial/ethnic gaps in parental leave-taking?

The diversitydatakids.org policy equity assessment of effectiveness highlights the equity-related challenges of the FMLA. FMLA logic does include some equity explicit goals related to women and health-vulnerable families. Yet while equity considerations are present for some subgroups (e.g., women), they are not addressed for others. FMLA goals include neither explicit nor implicit attention to equity for racial/ethnic minorities or socioeconomically vulnerable subgroups. Moreover, the unpaid nature of FMLA leave disproportionately hinders access for lower-income working parents, many of whom are Hispanic and black. Thus, the FMLA’s design constrains the policy’s capacity to improve equity for SES-vulnerable and racial/ethnic minority parents.

Research evidence on the FMLA further highlights the lack of attention to SES and racial/ethnic equity. As previously mentioned, the FMLA is associated with overall positive effects on leave-taking and child health outcomes, yet these effects are mostly confined to working parents who are socioeconomically advantaged.[76,77,78] Although socioeconomic status is correlated with race/ethnicity, no rigorous analytic studies of FMLA impacts have conducted subgroup analyses specifically by race/ethnicity, partially due to data limitations.

Thus, the omission of racial/ethnic considerations in the FMLA legislation is reflected in the absence of racial/ethnic subgroup impacts in the FMLA evidence base. This gap results in a dearth of information about how the leave-taking, employment, and health outcomes of racial/ethnic minorities are impacted. As a result, any disparities in FMLA impacts that might exist by race/ethnicity are not part of the public discussion and policymakers may not be aware of possible inequities. It is important to recognize that subgroup analyses by race/ethnicity have largely been overlooked, as it implies that inequities affecting these groups may also be overlooked.

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What research questions are asked to evaluate the FMLA?

By reviewing the FMLA research evidence, we can determine what research questions have been asked, and should be asked, about the policy to capture a complete picture of its effectiveness, both overall and for particular groups. The FMLA explicitly discusses goals to improve workers’ leave-taking, employment stability and security, and work-family balance. This section focuses on studies which have examined outcomes related to these primary goals. Given the policy focus on taking leave to address employee and family serious medical health conditions, we note the legislation’s omission of health outcomes. However, due to the FMLA’s close relationship with family health, we have included studies that examine its effects on maternal and child health outcomes. Lastly, we examine studies of FMLA implementation, since understanding how employers and employees experience the policy is key to interpreting evidence on its effectiveness.

Below we summarize and give examples of the types of research questions investigated in FMLA rigorous non-experimental studies; see the FMLA Research Questions table for a more complete list of questions with descriptions of the studies and data sources.

Selected FMLA research questions:
Has the FMLA increased the percentage of U.S. workers covered for family leave?[76]
Has the FMLA increased leave-taking among employed mothers? Has it increased maternity or paternity leave-taking among working parents?[76,77]
  • Do any impacts on maternity or paternity leave-taking vary by parental socioeconomic status?
  • Do any impacts on leave-taking for mothers vary by firm size and by child age?
Does the FMLA have any impacts on mothers’ employment or wages? Does it have any impacts on fathers’ employment?[76,77]
  • Do any employment impacts for mothers or fathers vary by parental socioeconomic status?
  • Do any employment impacts for mothers vary by firm size and by child age?
Does the FMLA have any impacts on infant and child health outcomes?[78]
  • Do child health impacts vary by maternal socioeconomic status?
State-level family leave policies: what are the impacts of paid family leave on mothers’ maternity leave use, employment, work hours and wages?[79]
  • Do any impacts on mothers’ leave-taking vary by race/ethnicity or socioeconomic status?

While it is important to assess what questions have been asked about the FMLA, it is just as critical to consider the questions that have not been asked, but should be. When questions are not asked, it may be of interest to dig deeper to see if these issues are systematically overlooked. Below are some examples of research questions that are not asked about the FMLA.

Selected equity-related research questions that are missing from studies of FMLA effectiveness:
  • How do FMLA impacts on leave-taking, employment, and child health outcomes vary by race/ethnicity?
  • How does the FMLA influence work-family balance and family integrity? 
  • What is the impact of the FMLA on maternal or employee health outcomes, especially for vulnerable subgroups?
  • What is the impact of the FMLA on gender discrimination?
  • Is job protection or wage replacement more important for increasing leave-taking and improving family economic and health outcomes, especially for vulnerable subgroups? (Based on current studies to date, it is not possible to disaggregate the effects of these two factors.)

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What data are available to assess the FMLA?

What data and evidence are available to evaluate the FMLA?
Availability of research data can influence which aspects of a policy are evaluated, the quality of research evidence and its interpretation. At this time there are no randomized controlled trials (RCTs) of the impacts of the FMLA or other paid family leave policies. The Department of Labor has commissioned descriptive surveys on FMLA implementation and experiences, but these cannot be used to determine causal relationships. As a result, to analyze FMLA effects on specific employee and family outcomes, researchers must rely on secondary data sources which were not specifically designed to evaluate the causal impact of FMLA on employment or health outcomes. Below are a few examples of the types of data that can be used to study the FMLA; see the Data and Methods in FMLA Research Evidence table for a more complete list with detailed descriptions.

Selected FMLA studies and data sources: 
  • Studies of FMLA implementation: The Department of Labor (DOL) Worksite and Employee Surveys are separately collected surveys carried out in 1995, 2000, and 2012 to capture employer and employee experiences with family leave and the FMLA, such as leave eligibility and usage. Each survey is cross-sectional, and can be used for descriptive analyses only.[80]
  • Studies of FMLA impacts: There are several rigorous studies that analyze the effects of the FMLA on leave-taking, employment, and health outcomes.[76,77,78] These studies use a variety of secondary data sources, including the Current Population Survey (CPS), the Bureau of Labor Statistics’ Employee Benefits Survey, the National Center for Health Statistics Vital Statistics, and the County Business Patterns (CBP). None of these data sources were specifically designed to evaluate the FMLA, so there are limitations inherent in each.
  • Studies of state-level family leave policies: In 2002, California enacted the first paid family leave (PFL) program, which provides partial wage replacement to eligible workers on leave. To examine the effects of this program, one rigorous study uses the March CPS Annual Demographic Supplement.[79] Other valuable studies have also been conducted on the California PFL program, but were not included as they did not meet the inclusion criteria for this review.[81]

Since there is no RCT of the FMLA, the research evidence covered here is limited to rigorous studies using non-experimental data. These studies take advantage of the fact that prior to the FMLA, some states already had maternity leave laws or other programs providing temporary leave from work for expectant or new mothers. This state variation resulted in a ‘natural experiment’ when the FMLA was enacted in 1994, whereby workers in some states that did not provide any prior family leave were more affected by the new law than workers in other states that already had leave policies. The studies compare differences in outcomes between states with prior maternity leave laws and states without, before and after the passage of the FMLA. This method is called a Difference-in-Difference (DD) approach.[77,79] Studies also add in another layer by examining the difference between mothers or parents who are estimated to be eligible vs. not eligible for FMLA leave, between states with prior maternity leave laws and states without, before and after the passage of the FMLA (a Difference-in-Difference-in-Difference (DDD) approach).[76,78]

What are limitations of FMLA data and research evidence?
Given the reliance on quasi-experimental methods and secondary data sources that were not specifically designed to assess FMLA impacts, there are some important limitations in the FMLA evidence base. It is critical to understand these limitations as they affect the interpretation of FMLA effectiveness. Constraints in study design or analytical methods can influence the quality of findings. Below are a few examples of limitations inherent in some FMLA data and evidence sources; click here for a more comprehensive list.

Examples of limitations in selected FMLA data sources and studies:
Studies of FMLA implementation:[80]
  • The DOL surveys are cross-sectional snapshots of employers’ and employees’ FMLA experiences at a single point in time and cannot be used to draw causal inferences.
  • In the DOL surveys, employee and employer responses are not linked, so it is not possible to examine whether the experience of an employee varies by his/her employer’s characteristics.
  • The employer survey only represents private employers, but excludes government agencies and public schools.
Studies of FMLA impacts:
  • Studies examining FMLA effects on maternity leave-taking or child health outcomes faced the challenge that data on births were not available from the same source as data on maternal employment and FMLA eligibility.[76,77,78]
  • Along similar lines, for all studies, the available data allow only an approximation of likely/potential FMLA eligibility, not actual FMLA eligibility or actual FMLA usage.[76,77,78]
  • Many studies also faced challenges in defining their outcomes, due to limitations in the data. For several studies, the data did not contain an explicit measure of maternity or paternity leave. Instead, the authors used proxy categories such as ‘employed but absent from work.’[76,77]
  • Current Population Survey data (used in several studies) has firm size classifications (very small firm: under 25 employees; small firm: 25-99 employees) that do not match FMLA firm size criteria for leave coverage (50 employees or more).[76,77] This data limitation makes it difficult to accurately identify covered workers who may be affected by the FMLA.

In addition, a major limitation across all the included rigorous studies of the FMLA is the lack of subgroup analysis by race/ethnicity. Considering that Hispanic and black working parents are less likely to be able to afford FMLA unpaid leave, analyses of leave-taking and health outcomes by race/ethnicity are warranted. This dearth of research evidence limits assessment of program effectiveness for these important subgroups. In contrast to studies of the FMLA, the study of the California PFL program does examine impacts by race/ethnicity, with important findings as detailed in the subgroup findings section.

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What is the research evidence on the FMLA?

We now turn to a review of the research evidence on FMLA effectiveness, keeping in mind the limitations of FMLA studies and data sources. In short, the research evidence shows that the FMLA is associated with increased leave-taking and improved child and infant health outcomes. However, these positive impacts are concentrated among married and/or college-educated working parents. Single and less-educated parents, especially mothers, do not experience benefits from the FMLA.

On the other hand, evidence from California’s paid leave program shows both larger and stronger impacts on leave-taking for low-SES nonwhite mothers than their higher-SES white counterparts. This evidence suggests that enhancing the FMLA to provide partial or full wage replacement during leave may improve equity in leave-taking (and associated benefits) for low-SES and racial/ethnic minority families.

Below, findings of FMLA effectiveness, both overall and for subgroups, are presented for selected rigorous studies of the FMLA. All results presented are statistically significant unless otherwise noted. See the FMLA Research Findings table and Findings from FMLA Subgroup Analyses table for more complete and detailed lists.

Examples of research evidence from selected FMLA studies:
Studies of FMLA impacts:
Overall findings:
  • Leave-taking: Living in a state with parental leave laws (including the FMLA as well as state laws) is associated with increased leave-taking among working mothers. These findings also apply to fathers, although to a lesser extent.[77] Examination of the FMLA alone finds that it is associated with increased leave-taking for working mothers, especially mothers with infants, employed in large and medium-sized firms.[76]
  • Employment and wages: The FMLA is not associated with any changes in employment outcomes for either mothers or fathers.[77] It is also not associated with any consistent changes in wage patterns.
  • Child health: The FMLA is modestly associated with increased birth weight, reduced likelihood of premature birth, and reduced infant mortality rates.[78]
Subgroup findings:
  • Leave-taking: The association between living in a state with parental leave laws (including the FMLA as well as state laws) and increased parental leave-taking is only statistically significant for college educated mothers and fathers. In addition, living in a state with parental leave laws is statistically significantly associated with increases in leave-taking among married mothers, but not single mothers.[77]
  • Child health: The FMLA’s associations with positive child birth outcomes are larger and more statistically significant for college-educated and married mothers than for less-educated and unmarried mothers. In addition, the FMLA is not associated with any reduction in infant mortality rates for less-educated and unmarried mothers; this association is only significant for college-educated and married mothers.[78]

These estimates are calculated for mothers who are ‘potentially FMLA-eligible’ or ‘likely FMLA-eligible,’ rather than for mothers who are actually FMLA eligible or who took FMLA leave.

Studies of state level family leave policies:[79]
Overall findings:
  • The California Paid Family Leave (PFL) program is associated with increased maternity leave-taking and increased work hours for employed mothers. It is not significantly associated with any changes in mothers’ wages or employment.
Subgroup findings:
  • The California Paid Family Leave (PFL) program is associated with reductions in disparities in maternity leave-taking. Specifically, the increases in leave-taking associated with California’s PFL program were much larger for less-than-college-educated, nonwhite, and unmarried mothers than for college-educated mothers, white, and married mothers.

These findings are based on estimated PFL eligibility rather than confirmed PFL leave usage.

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How should we interpret FMLA research evidence?

The results of FMLA research should be considered within the context of the history of family leave in the U.S. Traditionally, much of the effort around family leave policies has focused on women, who are more likely to take time off from work for caregiving. The FMLA reflects this emphasis, with explicit goals focused on eliminating gender employment discrimination and promoting equal employment opportunities for both men and women. Additional explicit goals include promoting economic security, preserving family integrity, and promoting work-life balance. However, due to limited data, research has not definitively established that unpaid leave from work under the FMLA is causally linked to improvements in these goals. Defining and measuring “work-life balance” and “family integrity” is challenging, and in general these outcomes have not been extensively studied in relation to the FMLA. Other outcomes, such as economic security, have been measured by examining the impacts of the FMLA on women’s wages and employment stability, as demonstrated by several of the rigorous non-experimental studies included in this section.[76,77] Nevertheless, the data and measurement challenges in these studies are significant and should be considered when assessing the evidence on the FMLA’s effectiveness in improving work and family outcomes.

A second noteworthy finding is that while the FMLA legislation discusses gender equality and discrimination in its findings and goals section, it does not address socioeconomic or racial/ethnic equality. The Act does not acknowledge the financial barriers to unpaid leave faced by many lower-income and lower-educated workers, a disproportionate number of whom are nonwhite. The omission of equity considerations for vulnerable workers in the FMLA’s logic is mirrored by limitations in its capacity. As noted in the capacity section, the unpaid and unfunded design of FMLA leave makes it unaffordable for many low-income workers, especially black and Hispanic working parents, and eligibility requirements disqualify many low-income workers completely. These capacity constraints can translate into inequitable outcomes, as demonstrated by research evidence showing that positive FMLA impacts on leave-taking and child health outcomes are highly concentrated among women of higher socioeconomic status.

In terms of racial/ethnic minority workers, the current research focused on the FMLA and state family leave policies, for the most part, has not addressed differential effects by race/ethnicity. The lack of studies of FMLA impacts on racial/ethnic equity is an important finding in itself since it impedes our understanding of how the FMLA may affect racial/ethnic minorities differently. Research is beginning to address these questions as exemplified by a new state level study of the impact of state paid leave on various subgroups including racial/ethnic minorities.[79]

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