The Family Medical Leave Act Turns 25 Years Old
The Family Medical Leave Act (the “FMLA”) turned 25 this week, on
February 5, 2018. Enacted in 1993, the FMLA is actually one of the youngest
federal employment laws on the books. As with most other individual protections
enshrined in federal law, the FMLA — which generally allows 12 weeks of unpaid,
job-protected leave to care for newborns and ill family members or to deal with
a worker’s own serious illness — sets a floor, not a ceiling, for workplace
leave. Over the past several years, some states and many cities have taken this
principle seriously and enacted more stringent requirements for employee leave.
Many employers also provide paid, as opposed to unpaid, leave in some form or
another to their employees, often viewing that benefit as good for business and
attractive to potential recruits.
With President Trump’s nod to paid family leave in his state of the
union address last week, though, talks of new federal paid-leave provisions
have kicked off just in time to celebrate the FMLA’s quarter-century. Taking up
the call for federally mandated paid leave, Marco Rubio and Ivanka Trump — a
vocal advocate of paid family leave — endorsed the idea. While it is unclear
what form such leave would take and whether it would have the votes to pass
both houses and get the President’s approval, Mr. Rubio’s preferred approach
appears to be to allow individuals to draw on Social Security benefits and
delay those payments after retirement. Far from the current structure of the
FMLA or local and state paid-leave obligations, this approach is attractive to
Republicans — and potentially to employers — as a way to allow paid leave
without additional cost to employers.
Of course, companies are well aware of the other costs beyond simple
payments for time off that accompany leaves of absence. For example, the cost
of hiring temporary employees to fill the shoes of employees on leave, and the
cost of the temporary loss of those employees’ experience and training, come to
mind. This new proposal would also likely incentivize more people to actually
take the leave to which they are already entitled, increasing the occurrence of
these costs. But for companies that already provide paid leave, Mr. Rubio’s
proposal may be more welcome than requiring employers to foot the bill, because
such companies can continue to offer that extra benefit as a recruiting or
retention tool rather than as a requirement to comply with the law.
These discussions are in their infancy, but it’s never too early to
consider how the proposals being discussed may affect your business.