BPC Recommendations to Modernize the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides many workers with up to 12 weeks of unpaid, job-protected family and medical leave annually. However, current law leaves over 40% of workers ineligible for job protection and poses unnecessary compliance challenges to employers. More than three decades after becoming law, FMLA is overdue for modernization to both ease burdens on employers and expand coverage for workers.

Job protection plays a pivotal role in supporting the nation’s economic strength by keeping workers connected to the labor force while they take needed time away from their jobs. Although FMLA has been in effect for over 30 years, there have been few successful congressional attempts to improve the law. The Bipartisan Policy Center recommends the following reforms to modernize FMLA to better meet the needs of employers and employees.

Recommendations to Benefit Employers

Increase the shortest increment of time employees are required to take for unplanned intermittent leave. Currently, FMLA allows workers to take unplanned intermittent leave in increments as short as one-tenth of an hour. Congress should increase the minimum required amount of time for intermittent leave to two hours when the leave is unplanned, or the employee does not provide sufficient notice. eliminating the need for employers to track periods of leave to the minute, and reduce abuses of FMLA.

Allow employee transfers in instances of unplanned intermittent leave. While employers can temporarily transfer employees taking planned intermittent leave to an alternative position, current law does not allow such a transfer when the leave is unplanned. Introducing this option for unplanned intermittent leave would provide employers with greater flexibility.

Adjust the definition of Serious Health Condition (SHC). Under the current definition, many workers receive FMLA protections for health conditions that are not serious in nature, resulting in workers taking unplanned intermittent leave for temporary illnesses such as the common cold. Ensuring that FMLA is reserved for workers with serious conditions would reduce instances of unplanned intermittent leave and target job protection to workers who need it most.

Require employees to provide notice prior to foreseeable leaves. Employees should not be expected to provide notice of leave during personal or family emergencies, but many employees fail to provide proper notice of FMLA leave that is planned or foreseeable. Requiring workers to provide advance notice of foreseeable leave would help businesses plan for a worker’s absence.

Recommendations to Cover More Workers

Adjust Employee Eligibility Requirements. As a result of FMLA’s eligibility requirements, only 56% of employees receive job protection: 21% of workers are ineligible because of the one-year tenure and 1,250 work hours requirements, 15% of workers are ineligible because their employer has fewer than 50 workers within a 75-mile radius, and 7% are ineligible due to a combination of these criteria. Incremental changes to FMLA’s eligibility criteria can result in a major increase in the law’s coverage. BPC recommends:

• Reduce the worker tenure requirement from one year to six months;
• Reduce the work hours requirement from 1,250 hours (24 hours per week) to 780 hours (15 hours per week); and
• Reduce the worksite size requirement from 50 employees to 30 employees.

Together, these changes would expand FMLA’s coverage to 67% of workers, translating to 16.8 million additional workers receiving access to 12 weeks of unpaid, job protected leave.

Eliminate the 75-Mile Rule. The geographic requirement that at least 50 employees work within a 75-mile radius of a worksite excludes many workers from FMLA coverage. It is also out of touch with today’s workforce, which has a growing number of remote workers. Eliminating the 75-mile rule would increase eligibility and allow FMLA to meet the needs of the modern economy.