This week marks the 30th anniversary of the Family and Medical Leave Act, which guarantees most workers 12 weeks of unpaid leave if they are sick to care for a child, a sick family member or themselves.
The Family and Medical Leave Act, also known as FMLA, was passed in 1993 and was a revolutionary policy: until then, workers had no guaranteed protection if they needed time off after childbirth or to recover from an illness. While the law still excludes millions of workers, including part-time employees and those working in small businesses — a 2018 Labor Department survey found that 44 percent of workers are not covered. Many loopholes in the bill still exist, and there is no paid leave program at the federal level.
But some progress has been made. In the years since FMLA was passed, 11 states and Washington, D.C., have approved their own paid leave policies, and some states have also offered more extensive unpaid leave options. A higher proportion of workers now have paid leave through their employer than in 1993, and from research Health matters And the Institute for Women’s Policy Research found that such programs improved children’s health outcomes and increased women’s retention in the workforce.
Today, lawmakers are still pushing to advance a comprehensive federal bill on the issue, though the current state of divided government means that will be difficult to do. Last year, Congress failed to approve paid family and sick leave due to opposition from both Democratic Sen. Joe Manchin (D-WV) and Republicans.
Effectively, the lack of a federal policy means a wide range of policies that vary by state and employer. “Heck, even in the Senate, every Senate office is different,” said Sen. Tammy Duckworth (D-IL), who recently introduced legislation to ensure that educational support professionals, such as bus drivers and janitors, are excluded. FMLA, to be covered.
Duckworth sat down with Vox to talk about that bill — and the state of unpaid and unpaid leave in the U.S., 30 years after FMLA’s landmark passage. This interview has been edited for length and clarity.
Let’s start with the state of unpaid leave in the US today: who has access to it and who is excluded?
Sen. Tammy Duckworth
Right now, to qualify for FMLA, you must work 1,250 hours over a 12-month period. So if you think about full-time work in a year, 2,000 hours is a good rule of thumb. You must work 1,250 hours at your job at this one job to qualify for FMLA under that employer. I have turned on education support [Professionals] The law, the ESP Act, because those who work in the American education system, because it’s a nine-month system, many workers never get 1,250 hours with school districts.
They must have two jobs: one job for nine months, and then another job for three months. And at no job do they reach 1,250, so they don’t qualify for FMLA. And who are these people, these are your school bus drivers, your lunch ladies, these are your school nurses.
Think back to the time of the pandemic, when our school nurses were testing and testing all our kids for covid so kids could get back to classroom work. And yet they didn’t qualify for unpaid FMLA if they got sick.
My bill would change the way we calculate FMLA to a percentage of the total hours they would be expected to work for that work period, so that they would only be assessed based on the total, over nine months. Hours worked. If they work full time at their job, let’s say it’s 1,500 hours, then to qualify, it’s 1,000, whatever. We will have a better formula for determining people’s eligibility for FMLA. and in particular, to ensure that educational support staff meet qualification thresholds.
In general, based on the factors currently used to determine who is eligible, who do you see as exempt from FMLA?
It’s people who multitask. Many families, especially single mothers, work two or three jobs to earn enough money to support their family. And because of that, because they’re not with a single employer for that entire year, they don’t qualify, even though they sometimes work more than 2,000 hours a year. And that makes it really hard for them to qualify for FMLA.
[Editor’s note: Workers at businesses with fewer than 50 employees also aren’t guaranteed coverage under FMLA, and legislation has been introduced to address this issue, including the Job Protection Act from Rep. Lauren Underwood and Sen. Tina Smith.]
When we think about paid leave, who is covered and how is it determined?
It depends on your employer, if your employer provides paid leave or not. You even have different coverage in different parts of the government. Heck, even in the Senate, every Senate office is different. So some Senate offices provide more coverage than others and have different rules than others. And so there is no consistency across the country and who is eligible for what in terms of paid leave as it is considered a benefit of your employment.
Family Law introduced by Sen. [Kirsten] Gillibrand, who I have co-sponsored for many years now, would actually solve this problem by creating an insurance program that would cost about $2 a week for the employer and $2 a week for the employee. And what happens is, you both have to give that. And if you need to take paid leave, up to 80 percent of your salary can be paid, depending on what you choose to pay under the insurance program.
How about your health care, you can choose a silver or gold or platinum plan, it will be the same where you can choose how many benefits you want, what percentage of your pay you want to be able to draw if you need to take vacation, and Then you pay for it in the program. And it would be a way to enforce paid family leave for everyone across the country, and not at the expense of taxpayers, as it would be between the employee and the employer.
What do you see as the biggest hurdles for Congress to both expand FMLA and something like the Family Act that would provide federal paid leave?
I think some of the opposition, traditionally, has come from business, who think it will cost too much money. But I will tell you that in states like California that have adopted paid leave, when employers are surveyed, [an overwhelming proportion] That said, paid vacation has actually been a benefit to my company, and hasn’t cost me much money. And actually, it was a great tool for me to retain my employees. And I got more than I paid for.
So in those states that have adopted paid family leave, we’re seeing that it’s actually very well adopted. So you’re starting to see resistance to that among businesses that traditionally would have said, “Oh, no, we don’t want to do that.” But now that a lot of them have experienced it in some of these states, they actually realize, it’s saving me money, because I don’t have to retrain employees, I’m not losing employees. There’s a labor shortage right now, so it actually helps to retain people for paid family leave.
At this point, what is your strategy for passing legislation on this issue through a divided Congress?
It’s really just going to talk to people, and I think I’ll have a much easier time explaining it to them now than before the pandemic. And I use that school nurse as an example. People understand how important these support workers are to our kids and how important they are to keeping our kids safe.
And they also see that there is a real shortage because many support workers have dropped out of the workforce in the education system. I know that there is a shortage of school bus drivers everywhere, because a lot of them had to be laid off, because they couldn’t get FMLA during the pandemic. And so they quit and left and got other jobs, because they couldn’t take care of their families that they needed. So I think the consequences of not covering educational support staff have become very clear. And so I think I can make a better case for myself to my Republican colleagues.