In early February, the Family and Medical Leave Act (FMLA) reached its 30th anniversary. Efforts continue in Congress to expand the law to provide paid leave and increase the coverage of the law. The Labor Department’s Wage and Hour Division has issued an opinion letter concerning taking FMLA by an employee with a chronic health condition who cannot work more than eight hours per day. The Labor Department also issued guidance on the implementation of the PUMP Act and the Equal Employment Opportunity Commission (EEOC) announced that the 2022 EEO-1 data collection will begin in mid-July.
FMLA Turns 30 – February 5th marked the 30th anniversary since the signing of the Family and Medical Leave Act (FMLA). The FMLA protects the rights of eligible employees of those employers covered by the law to take unpaid, job-protected leave for specified family and medical reasons. According to the Department of Labor, which administers the law, ”Since 1993, the department’s Wage and Hour Division has helped thousands of workers who have been denied leave, unjustly terminated, or have lost health care coverage during leave; in addition to remedies including job and benefits restoration, the division has recovered more than $63 million in back wages for affected workers.”
President Biden issued a proclamation celebrating the 30th anniversary in which he called for a paid family leave program. He stated, “Paid leave would help bring more people back into the workforce – boosting productivity, securing wages, and easing budgets for working families.”
There are renewed efforts in Congress to pass paid family and medical leave. Representative Chrissy Houlahan (D-PA) and Representative Stephanie Bice (R-OK) announced the formation of a bipartisan paid family leave working group consisting of six members of the House of Representatives that will meet to craft paid family and medical leave legislation.
Senator Kristin Gillibrand (D-NY) and Representative Rosa DeLauro (D-CT) have reintroduced along with a number of Senators and Representatives, the FAMILY Act which would amend the FMLA to provide paid leave for any FMLA qualifying reason. The paid leave would last for up to 12 weeks and would be capped at no more than $4,000 per month, which would be adjusted for inflation. The program would be paid through a payroll tax of 0.2% paid by employers and employees.
In addition to paid FMLA, there have been bills introduced in Congress that would amend the law to expand the definition of individuals for whom employees could take leave to help care for and to increase coverage of the law. Senator Dick Durbin (D-IL) has introduced the Caring for All Families Act (S. 242) that would amend the FMLA to permit leave to care for a domestic partner, parent-in-law, or adult child, or another related individual, who has a serious health condition, and would allow additional leave for parental involvement and family wellness to participate in or attend their children's and grandchildren's educational and extracurricular activities or meet family care needs.
The Job Protection Act (S. 210, H.R. 694) would expand the coverage of the FMLA by having the law apply to employers with one employee from the current 50 employee threshold, protect part-time workers and those working multiple jobs by eliminating the requirement that an employee work 1,250 hours at a single workplace over the previous year, and reduce the amount of time that employees must have worked for their employer from 12 months to 90 days. The bill was introduced by Representative Lauren Underwood (D-IL) and Senator Tina Smith (D-MN) along with a number of cosponsors.
FMLA Wage-Hour Opinion Letter Issued – The Department of Labor's Wage and Hour Division recently issued an Opinion Letter advising that an employee may continue to use Family and Medical Leave Act (FMLA) leave for an indefinite period as long as they continue to be eligible and have a qualifying reason. In this case, an employee who is usually required to work more than 8 hours per day but is unable to do so because of an FMLA-qualifying reason, would be allowed to use FMLA leave for the remainder of each shift beyond 8 hours, with the hours not being worked deducted from the employees’ FMLA leave entitlement. This can continue until the employee has exhausted all FMLA leave.
In the facts presented, the employer indicated that the employee has a chronic serious health condition, and a health care provider certifies the medical need to work not more than an 8-hour shift. The employer believed that the employee’s need to limit the workday to an 8-hour shift may be better handled as a reasonable accommodation under the Americans with Disabilities Act (ADA). The Opinion Letter states, "the requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously. Nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA.”
DOL Launches PUMP Act Awareness Effort – The Department of Labor (DOL) has announced an effort to inform workers about the new Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) that extends the rights of nursing mothers to have time and a private space to pump breastmilk while at work. The PUMP Act was included in the omnibus spending bill passed in December 2022 that funds the federal government for the remainder of the current fiscal year that ends on September 30th. DOL has launched a website with guidance, fact sheets and other resources for both workers and employers.
According to DOL, the PUMP Act includes the following provisions:
2022 EEO-1 Data Collection to Begin in July – The Equal Employment Opportunity Commission (EEOC) announced that the 2022 EEO-1 Component 1 Data Collection is tentatively scheduled to open in mid-July 2023. Updates regarding the 2022 EEO-1 Component 1 Data Collection, will be posted to www.eeocdata.org/eeo1 when available. The EEO-1 form needs to be completed by all private employers with at least 100 employees and federal contractors with 50 or more employees.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at email@example.com.