Law offers limited family leave protections

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See also “Paid family leave movement gains traction

Lehi resident Pauli Hannan was seven months pregnant when she found out the small company she worked for wasn’t required to provide her with unpaid maternity leave. By taking 12 weeks off work for her child’s birth, Hannan was potentially forfeiting her job and health insurance.

“Nothing was going to make them give me my benefits when I was gone or ensure that my job was there when I came back,” Hannan said.

Hannan talked to her boss about maternity leave early in her pregnancy, and she was under the impression she could take time off through the Family Medical Leave Act, a law passed in 1993 that legally protects some parents to take up to 12 weeks of unpaid maternity leave.

However, the company’s human resources department informed Hannan the company wasn’t covered under FMLA because of its size, and there was no guarantee Hannan could take leave and keep her job and benefits.

“So here I am, panicking,” she said. “Like, how am I even working for a company that is not supporting me and family? We live in Utah, for heaven’s sakes.”

Hannan worked out a plan with her bosses to take off the time she needed without giving up her job and insurance benefits, but is still bothered by the experience.

“Family is supposed to bring you so much joy,” Hannan said, “yet in order to provide for them, the system is not set up in a way that makes it conducive or easy to have kids or to take time off work.”

What is FMLA?

According to the U.S. Department of Labor, nearly 60 percent of employees meet the criteria to qualify for FMLA. However, the remaining 40 percent have no access to job-protected, unpaid family leave.

FMLA provides eligible employees with up to 12 weeks of unpaid leave in a 12-month period for the arrival of a child, according to the department. It also applies to employees who need to care for a close family member with a serious health condition, employees with a serious health condition themselves and those dealing with an emergency related to a close family member who serves in the military.

According to the department, FMLA requires employers to provide their employees with their original job, or an equivalent job with the same pay and benefits, after they return from leave. FMLA also ensures employers continue to cover their employees’ group health insurance coverage while the employees are absent from work. 

(Jenna Alton)
The Family Medical Leave Act provides unpaid, job-protected leave for eligible employees. (Jenna Alton)

Shawn Gaylord is the legislative director at PL+US, a nonprofit that lobbies for paid family leave legislation at the federal level.

“It is not nothing that the Family Medical Leave Act exists,” Gaylord said. “Even though it’s better that we have it than don’t have it, it really doesn’t go far enough into solving this problem.”

FMLA limitations

As Hannan learned, FMLA only applies to employers with 50 or more employees. Even under a covered employer, an employee can only qualify for FMLA after working for the employer for at least a year and accumulating 1,250 work hours in the year preceding the leave, according to the department.

Gaylord said FMLA has two main problems: it does not cover everyone, and it is unpaid — a factor that especially affects those who need a wage replacement while taking family leave.

“If you’re a high-wage worker in a specialized industry, then you can probably assume you will get your job or a job similar if you take some time off, even without FMLA,” Gaylord said. “But for the lower wage side of the equation, it’s not going to help you to have unpaid leave.”

Current legislation

However, Gaylord, who closely monitors issues related to family leave on Capitol Hill, said legislators have pushed to address some of FMLA’s shortcomings. Rep. Carolyn Maloney, D-New York, has introduced what Gaylord coined as an “FMLA fix bill.” Maloney first introduced the bill in 2018.

“My understanding is she’ll be reintroducing it this year,” Gaylord said.

According to a press release on Maloney’s website, the FMLA Modernization Act would only exempt small companies from FMLA if they have less than 15 employees.

The act would also expand FMLA to cover parental involvement leave, which includes involvement in children’s and grandchildren’s school and community activities. Employees would be able to take up to 24 hours of parental involvement leave during a 12-month period.

Finally, the act would update the definition of a family member to cover relationships that  “are not bound by blood or legal ties,” including domestic partners, grandparents, siblings, aunts and uncles.

Currently, FMLA only covers unpaid time off for employees to take care of close family members — defined as spouses, sons, daughters or parents — with a serious medical condition.

“No one should have to choose between caring for their loved ones or losing their jobs,” Maloney said in the press release.

According to Gaylord, Maloney is not the only legislator in Congress to introduce an FMLA fix bill.

A bipartisan group of four senators, including Sen. Joni Ernst, R-Iowa, introduced legislation in October 2018 called the Fair Access for Individuals to Receive Leave Act, or the FAIR Leave Act. According to a press release on Ernst’s website, the FAIR Leave Act would ensure fair FMLA benefits for married couples who work for the same employer.

Although FMLA generally gives up to 12 weeks of unpaid leave to qualifying employees, married couples who work for the same company only receive a total of 12 combined weeks off for some FMLA-qualifying situations: the birth of a child, the placement of a child through adoption or the foster system and the care for a parent with a serious health condition, according to the department.

Sen. Tom Cotton, R-Arkansas, is part of the team of legislators who introduced the bill.

“The amount of unpaid leave afforded to parents of newborns shouldn’t be limited simply because they both work for the same employer,” Cotton said in the press release. “This bill corrects that discrepancy in the Family and Medical Leave Act and will treat parents fairly, whether or not they work for the same employer.”

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