Happy 30th birthday, you wonderful old FMLA! 

Break out the band aids and ace bandages! It’s time to celebrate a special birthday for our favorite federal statute.

All weekend, I’ve been singing Harry Styles’ song “As It Was” to the Nowak kids:

You know it’s not the same without medical leave
In this world, it’s just FMLA
. . .

And as predictable as my god-awful FMLA songs are, we even broke out the 30th birthday cake last night in honor of the FMLA.

Where Have We Been, Where are We Going?

In all seriousness, as our world comes out of a terrible pandemic, this is a critical time for employers and employees alike.  Back on February 5, 1993, President Bill Clinton signed the FMLA into law. This groundbreaking law has allowed new parents time off from their job to bond with their children and afforded workers time away to care for gravely ill family members or recover from their own serious health problems — all without fear of losing their jobs.

Yet, 30 years later, there is still much work to be done.  We need to do more to protect employers’ interests, but the employer community also must take a big step forward, read the tea leaves, and once and for all, ensure some level of paid leave for their employees so that their workers can take care of themselves and their families. It’s good for the people they employ, and it’s good for business. Conversely, employees must understand their role in safeguarding the FMLA by using time away from work with integrity and only for the reasons intended under federal law. [Ryan Golden of HR Dive penned a spectacular article today on the 30-year legacy of FMLA. It’s worth the read!]

Employers, employees, and the Department of Labor: we all have to be partners in this. So, while I have your (modest) attention:

To Employers:

Count me among the lucky ones the law has benefited: Several years back, the FMLA afforded me a leave of absence as I held my father’s hand and comforted him in the days before he died of cancer. It also allowed me time to be with my four beautiful children after they were born. Like many employers, my law firm supported my need to be away from work — it didn’t require a federal law to mandate my leave time. And it paid for my time to be with my dad in his last days.

Think about the good that FMLA brings. The National Partnership for Women and Families estimates that the FMLA has been used more than 460 million times since it first became law, and 15 million people take some form of FMLA leave every year to attend to their medical needs, to care for a family member, or to welcome a new child into this beautiful new world.

Employers, despite the bad rap we get, we care about providing FMLA leave to our employees because we know it’s necessary at times for them and their families. However, many employees across America use FMLA leave without the benefit of a paycheck because there is no federal mandate for paid leave.

Employers, as we celebrate 30 years of FMLA goodness, it’s time to change the course of history. Consider this for a moment. The United States is one of six countries in the world — and the only wealthy country — without any form of national paid leave. Every year, employers are increasingly offering their employees paid leave to attend to significant family and medical needs of their employees. What are you slow pokes waiting for? Join the growing number of employers who are helping the American workplace align itself with the industrialized world.

Why do this? There is plenty to be gained by adopting paid FMLA leave — affirming a commitment to work/life balance, improving your recruitment and retention of the best candidates, boosting employee morale. And as I suggested in a prior post, it’s simply the right thing to do.

But let me go even further if you aren’t yet convinced. As the paid leave champion, Vicki Shabo, notes persuasively, the need for meaningful paid leave has never been greater, as the lack of such a benefit negatively impacts those most in need:

It protects only about 56 percent of the workforce, and workers who are disproportionately excluded are also those most vulnerable to job loss and have the fewest resources to afford unpaid time off. This includes low-wage workers, workers with lower levels of education, Latine workers, single parents, rural workers, people in poverty, and immigrants.

If you still need some evidence that FMLA leave is sorely needed in the lives of everyday Americans, listen to two poignant stories shared by President Clinton last week as he and others honored the FMLA’s 30th birthday (at 15:32 of the video).

‘Nuff said. Employers, let’s get to work.

To Employees:

The five percent of y’all ruin it for the rest of your brothers and sisters.

If you’re really being honest, you know that nearly all employers care about providing you leave from work when you need to attend to personal and medical issues. They are folks like you and me who at their core care about people, and they know the value of FMLA leave. What raises employers’ ire, however, is when you play them. You know who are – those who add on so-called FMLA leave to your regular days off; those who call off three straight Super Bowls in a row and think we don’t notice; those who call off work, then head over to the bar or head out early for that beach vacation.

It happens every day, and it’s why employers grow cynical when you really need FMLA leave. We recognize it’s only a small percentage of you, but your misuse of FMLA really does ruin it for the rest.

‘Nuff said.  You get my point. Use FMLA honestly and with integrity, take care of yourself and your loved ones, and get back to work.

The more accurate photo of the kids when dad gets a little too excited about the FMLA.

To the Department of Labor:

Respectfully, we need your leadership. Thirty years ago, you gave a ton of thought to the FMLA regulations and the same amount of effort to the 2009 regulatory changes, but we otherwise barely hear from you on FMLA.

Opinion letters are nowhere to be seen, and the guidance you infrequently provide on issues like cancer and mental health are thoughtful, but they tell us what we already know.

Two suggestions:

  1. Treat employers as a partner in the FMLA. This week, you put together a really snazzy blog page to honor the FMLA’s 30th birthday. Today, you will hold a ceremony to honor 30 years of FMLA. Among other things, your blog post boasts of all the employees you have saved from alleged termination for using FMLA leave, all the employees allegedly denied leave, and the money you’ve recovered from employers you’ve nailed for alleged FMLA violations. You also highlight several employees who have benefited from having access to FMLA. I guess I would expect this approach from a federal agency. But do you know what’s painfully absent from your FMLA celebration, both on your blog post and in your ceremony today? Employers. You don’t offer one good word about employers. If you’re looking to engage employers as partners in this effort, wouldn’t it make sense to highlight those employers who are going above and beyond to provide employees paid FMLA leave and other benefits to support their employees’ need for time off from work? Or will you keep perpetuating the narrative that FMLA = employees vs. employers. Not one person on that celebratory stage today is from the employer community. That’s a pretty big swing and miss. Come on DOL, you know better.
  2. How ’bout we celebrate the FMLA’s 30th birthday with some meaningful guidance from you on issues that are particularly problematic for employers: for instance, 1) How do we address eligibility of remote workers in the post-pandemic era? 2) Does telehealth = in-person visits forever (which may very well be fine, but tell us)? 3) When recertification undermines an employee’s frequency or duration of FMLA leave, why not tell us in as clear a manner as possible whether and to what extent the employee can be disciplined for the excessive absences? Right now, you offer us no guidance. 4) Similarly, if an employee fails to return certification after 15 days, why not give us precise guidance on what we do? And can we lose this mumbo jumbo about issuing discipline only for the days following Day 15? 5) Could we make the “varying work week” far more meaningful and practical? 6) Why not allow transfer to an equivalent position during any type of intermittent leave, not just for planned medical treatment? It protects the employee’s leave but helps employers better manage their workforce.

‘Nuff said. DOL, get to work!

Let me hear from you — if you could change one FMLA regulation, what would it be?

This lovable little federal law drives me crazy nearly every day, but our employees never needed this entitlement more than today.

And that’s really what matters.

Happy 30th birthday, FMLA.