Lost Between the Lines: Addressing the Gaps in America’s Family and Medical Leave Policies

By: Alexandra Henriquez

Edited by: madison bruno and alex brunet

For over three decades, the Family and Medical Leave Act (FMLA) has played a key role in the American labor landscape, guaranteeing American families security in times of significant life changes and challenges. The FMLA was passed in 1993 “to promote the stability and economic security of families” and balance the needs of families’ needs with employers’ needs. [1] The FMLA guarantees any “eligible employee” 12 workweeks of unpaid leave for every 12 months in response to the following events: birth of a child, placement of an adopted child, serious familial or personal health conditions, or any qualifying exigency arising from their family members’s active duty in the Armed Forces. FMLA has a leave limit of 26 work weeks per 12 months. [2] While the act has made significant progress in the fight for labor rights, Americans have noticed its significant constraints over the past few years. 

First, the FMLA does not recognize part-time or temporary employees, employees of small businesses, or self-contracted individuals. The FMLA defines an “eligible employee” as “an employee who has been employed for at least 12 months by the employer and at least 1,250 hours of service with such employer during the previous 12-month period.” [3] The act also excludes any employee at a company with less than 50 employees within 75 miles of the worksite. These eligibility requirements particularly affect those in the newly popularized gig economy, including short-term employment like freelancers, self-contractors, ride-share drivers, delivery personnel, online platform workers, and temporary or part-time workers. As a result, a growing segment of the workforce finds itself without the protections offered by FMLA.

Additionally, although the FMLA ensures job security for employees, a major challenge for many Americans is the loss of income during this period. The FMLA mandates unpaid leave, meaning individuals do not receive their regular income during this period. For many American workers, especially those in lower income brackets or those dealing with costly health procedures, the loss of income during family or medical leave can be a significant financial burden. This gap in the FMLA means that, despite having the right to take leave, some employees may not be able to afford to do so, negating the intended benefits of the act.

Moving into 2024, many states have realized the importance and social benefits of supporting workers and their families’ physical and mental health regardless of employment type, implementing mandated paid family leave that extends to all. According to the Center for American Progress, 11 states enforce family and medical leave laws: California, Colorado, Connecticut, Delaware, Massachusetts, Maryland, New Jersey, New York, Oregon, Rhode Island, and Washington State, along with Washington, D.C. [4] These state laws protect private sector employees, and many cover state and local government employees as well. State-paid family and medical leave laws, for the most part, cover all workers, even those who are self-employed; participants can pay into a fund to make them eligible for paid leave benefits.

In early December of 2023, the Wisconsin Supreme Court held oral arguments to determine whether employers such as Amazon, which are instrumental in the gig economy, should be required to contribute to a fund for unemployed workers. [5] Central to this case is the question of whether gig economy participants qualify as employees. The outcome of this case could set a precedent regarding the contributions of major companies to paid leave funds for gig economy workers.

The federal government is also slowly progressing towards aligning with evolving state policies providing paid leave. In 2021, the House of Representatives passed the Build Back Better Act (H.R. 5376), part of which aimed to establish a permanent national paid leave program. However, the bill died in the Senate and was replaced with the Inflation Reduction Act, which was passed in August of 2022 without any provision for a paid leave program. [6] While the Build Better Act’s passage through the House acknowledges the growing need for a larger-scale approach to family and medical leave, the halted journey of the bill and its paid leave provision underscores the complexities and challenges in enacting such legislation at a federal level. These complexities encompass arguments surrounding the financial burden on small businesses and economic growth, requirements of substantial government funding, and the role of the federal government. The absence of a federal paid leave program in the Inflation Reduction Act leaves the responsibility of implementing paid leave policies largely to individual states, which has led to a patchwork of policies across the country, with some states offering comprehensive paid leave programs while others offer none. Despite this setback, the conversation around federal paid leave has gained considerable attention and support from Americans, state governments, and neighboring countries. 

Extending paid leave and including gig workers is to acknowledge the value of providing a social safety net and to acknowledge that our labor landscape is changing. The discussion on paid leave extends to the broader question of how we should adapt labor laws to the changing nature of work in the 21st century. As the workforce continues to evolve, with an increasing number of gig economy workers and changing family dynamics, the demand for a national paid leave policy will definitively remain a significant topic in labor policy discussions.

Notes:

1. Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, (1993).

2. Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

3. Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

4. Molly W. Williamson,  “The State of Paid Family and Medical Leave in the U.S. in 2023,” Center for American Progress, 5 Jan. 2023, https://www.americanprogress.org/article/the-state-of-paid-family-and-medical-leave-in-the-u-s-in-2023/.   

5. Shawn Johnson, “Wisconsin Supreme Court Hears Arguments in Case Involving ‘gig Workers,’ State Unemployment Fund,” Wisconsin Public Radio, 19 Dec. 2023, www.wpr.org/economy/wisconsin-supreme-court-hears-arguments-gig-workers-state-unemployment-fund.

6. H.R. 5376 (117th): Inflation Reduction Act of 2022. GovTrack, 19 Aug. 2022, https://www.govtrack.us/congress/bills/117/hr5376/summary. 

Bibliography:

Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, (1993).

Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

Family and Medical Leave Act of 1993, 29 U.S.C. §  2611, (1993).

H.R. 5376 (117th): Inflation Reduction Act of 2022, GovTrack, 19 Aug. 2022, https://www.govtrack.us/congress/bills/117/hr5376/summary. 

Johnson, Shawn. “Wisconsin Supreme Court Hears Arguments in Case Involving 'gig Workers,' State Unemployment Fund.” Wisconsin Public Radio, 19 Dec. 2023, www.wpr.org/economy/wisconsin-supreme-court-hears-arguments-gig-workers-state-unemployment-fund

Williamson, Molly W.  “The State of Paid Family and Medical Leave in the U.S. in 2023,” Center for American Progress, 5 January 2023,https://www.americanprogress.org/article/the-state-of-paid-family-and-medical-leave-in-the-u-s-in-2023/.