Editor's note: This article was updated October 24, 2012.
In order to see what the future holds for FMLA legislation and enforcement, we need only look at the various announcements, requests, and programs coming from both the federal Department of Labor (DOL) and the states. These legislative clues reveal a movement toward more changes in FMLA regulations, enforcement, and litigation and, in the states, new laws that further strengthen employees’ rights to family and medical leave, both paid and unpaid.
For more information on FMLA changes that occurred this year, read the companion white paper, FMLA 2011: Year in Review.
New Regulations and Signs of Change
In a move that most likely indicates future changes to the FMLA, DOL’s Wage and Hour Division (WHD) issued a proposed “Information Collection Request” (ICR) in April of this year. The ICR was issued in an effort to “update DOL’s understanding of leave-taking behavior and to close current data gaps remaining from the previous surveys,” says WHD.
The survey will also reportedly enable DOL to “shape future regulatory options, craft interpretive guidance (such as plain-language fact sheets), develop compliance programs (employer outreach and investigation policies), and establish regulatory priorities based on sound, current data, rather than on outdated data or anecdotal information.”
Finally, states WHD, the survey will provide data by which DOL “can evaluate the effect on employer compliance of a range of FMLA activities—regulatory, educational, investigative, and legal—on employer compliance.”
First and foremost (we hope), any new or proposed FMLA regulations should contain revised FMLA forms that more accurately reflect the recent changes to the law, including family military leave lists of covered individuals, servicemember caregiver documentation, and the expanded in loco parentis coverage.
Paid Leave and Changes in the States
Although there have been rumblings in the federal government for years, more state legislatures seem to be actually making good on promises of providing paid leave for employees. According to the National Council of State legislatures, at least 19 states had some form of paid leave initiative on their legislative calendars at the beginning of 2011.
In 2015, the state of Washington’s paid family leave law will go into effect. The state law, which grants employees up to 5 weeks of family leave insurance benefits with a maximum weekly benefit of $250 per week, will take effect on October 1, 2015—assuming the effective date of the law is not further delayed. Two other states, California and New Jersey, already have similar paid family leave programs.
Paid Sick Leave
Some states have chosen to require paid sick leave in specified industries catering to the public, such as the service industry. For example, in the District of Columbia, service companies with 50 or more workers must provide service workers 1 hour of sick time for every 40 hours worked, up to a maximum of 40 hours per calendar year.
In June 2011, Connecticut became the first state in the nation to mandate paid sick leave exclusively for service workers such as waiters, cashiers, and hair stylists. Under the state paid sick leave law, which goes into effect in January 2012, service companies with 50 or more workers in the state must provide service workers 1 hour of sick time for every 40 hours worked, up to a maximum of 40 hours per calendar year.
Cities have also gotten into the act, requiring paid sick leave by local ordinance. For example, in San Francisco, employers are required to provide 1 hour of paid sick leave to an employee for every 30 hours worked. Under the ordinance, employees are allowed to accrue up to 40 hours of paid sick leave if they work for a small employer (fewer than 10 employees). Employees of larger employers can accrue up to 72 hours.
Feds Kick In to Assist State Paid Leave
In order to encourage the states to continue the move toward legislating paid leave for employees, the federal DOL is lending a hand. The 2012 Fiscal Budget for DOL includes $23,000,000 to fund the State Paid Leave Initiative, which will provide grants to assist additional states to establish paid leave programs. Typically, the programs are state-run insurance programs financed by employer and/or employee contributions, and the programs offer up to 6 weeks of benefits to workers for reasons covered under the Family Medical Leave Act who must take time off to care for a seriously ill child, spouse, or parent, or bond with a newborn or recently adopted child. In doing so, the programs may enhance job retention for many workers or help workers stay on their career paths.
In FY 2012 the Department requested funding for the State Paid Leave Fund. Of the $23,000,000 requested for the FY 2012 budget, DOL requested that 1 percent ($230,000) be allocated for federal administration of the program. The remaining $22,770,000 will be used for “grants and for technical assistance” that will include outreach to help identify and facilitate the participation of states; information and other assistance that could help the planning; and start-up activities in multiple states.
Several court decisions have changed the way in which the FMLA will be interpreted and enforced. These changes include:
- EEOC’s increased attention to employer’s obligations to provide more leave than the FMLA requires as a reasonable accommodation under the ADA (UPS, Supervalu, and Sears cases);
- The extension of retaliation protection to third parties such as close family members and fiancées (Thompson); and
- The addition of “cat’s paw” liability, holding an employer liable when an unbiased manager bases his or her employment decision on the recommendation of a biased manager (Staub and Blount cases).
As 2011 ends and into 2012, we expect to see other courts following suit and relying on these judicial decisions to extend the reach of the FMLA.
Companion white paper: FMLA 2011: Year in Review.