In Part 1 of this series we saw that two decades after passage of the FMLA, about a third of all workers (34 percent) still have not heard about the Act. More surprising, perhaps, is the finding that a significant share of employers who are covered by the FMLA do not comply with all of its provisions. Nearly a quarter of work sites subject to the FMLA, employing nearly a tenth of all workers (9 percent), do not know that the FMLA applies to them.  Twenty percent of work sites covered by the FMLA do not permit employees to take leave for one or more FMLA qualifying reasons for leave. Nearly a third of workers are employed at these work sites.  A greater emphasis on outreach, education and enforcement can increase the number of employees able to take a family or medical leave.

Expanding Coverage of the FMLA

In this blog post, we examine what the DOL surveys tell us about the possibilities for expanding coverage of the FMLA. Just a tenth (9.7 percent) of work sites employ 50 or more workers and thus are covered by the FMLA; although 16.6 percent self-report that the FMLA applies to them. Since the FMLA applies to larger businesses, the 10 percent of employers actually covered by the Act employ almost three-quarters (73.6 percent) of employees.

Not all workers at a covered business are eligible for leave under the FMLA. To be eligible, a worker must not only be employed at a covered work site, but must have worked for that employer for 12 months (not necessarily consecutively) and must have logged at least 1,250 hours in the past 12 months.  Just under three-fifths (59.3 percent) of workers in the U.S. meet all of these criteria. According to the employee survey, 15.9 percent of eligible employees took an FMLA leave in the past 12 months; although just 3.1 percent were on leave at the time the survey was taken. Employers report that 9.8 percent of employees took a leave for an FMLA-qualified reason.

The fact that just 59.3 percent of workers meet all the criteria to be eligible for an FMLA leave means that fully two-fifths of workers currently do not have access to job-protected medical or family leave guaranteed under the Act. A welcome and powerful finding in the employer survey is that 20 years of experience with the FMLA has created the beginnings of a culture change among employers. Employers have learned that compliance with the FMLA has been uneventful. The 2012 employer survey has reconfirmed the results of earlier surveys and finds that the FMLA has had no effect or a positive effect on business outcomes for 9 out of 10 employers who are covered by the Act (more on this later, in Part 4 of this series). Today, many businesses that are too small to be covered by the FMLA either believe that they are covered and offer leaves for FMLA-qualified reasons to their employees or, even knowing they are not required to do so, allow workers to take leave for many of the FMLA-qualified reasons.

In the 2012 FMLA Survey, about a tenth (10.2 percent) of businesses with less than 50 employees reported that they are covered by the Family and Medical Leave Act. These businesses employ about a fifth (20.8 percent) of workers at worksites too small to be covered by the Act. 

Many small businesses – whether they believe they are covered by the FMLA or not – allow employees to take FMLA-qualified leaves. More than half of all businesses not covered by the FMLA allow employees to take leave for all of the FMLA-qualified reasons. These work sites employ three-fifths (59.6) percent of all workers employed by small organizations.  Employers at many more work sites employing fewer than 50 employees allow their employees to take leave for some of the FMLA-qualified reasons.  Three-quarters of workers in these small businesses are able to take leave for the care of a newborn and more than 80 percent are able to take leave for their own illness, for a pregnancy related reason, or to care for a seriously ill child, parent or spouse. More than 80 percent of employees of small businesses work for employers that report that workers on family or medical leave are able to return to the same job.

The realization that valuing employees means respecting workers' need to take care of themselves and their families is slowly becoming the norm among U.S. employers, including small employers. Expanding the reach of the FMLA so that many more workers have access to job-protected leave when they need it won’t be much of a reach, and will level the playing field for the many small business that already know the importance of valuing workers and their families.