The Family and Medical Leave Act (FMLA) guarantees eligible employees up to 12 weeks of unpaid leave each year to care for a newborn, newly adopted child, and/or a seriously ill immediate family member, or to recover from their serious health condition. FMLA also provides up to 26 weeks of leave to care for a covered service member with a serious injury or illness. Signed into law by President Bill Clinton in 1993, the FMLA has since allowed millions of American workers to take time off without the risk of losing their jobs or health insurance.
While FMLA offers job-protected leave to many American workers, over 40 percent of the workforce remains ineligible. The FMLA applies only to employers with 50 or more employees, public agencies, and public schools. Employers must also provide group health insurance to meet the requirements of the Act. In general, eligible employees must have worked for the covered employer for at least 12 months, accrued at least 1,250 hours of service during the previous 12 months, and report physically to a worksite where at least 50 employees work within 75 miles.
The United States Department of Labor (DOL) Wage and Hour Division released guidance to address concerns regarding the physical worksite requirement. Before COVID-19, remote work was less common, but with digital jobs expected to increase by 25% globally over the next six years, concerns about FMLA eligibility for remote workers have grown. For FMLA eligibility purposes, an employee’s residence is not considered a worksite. Whether or not to include remote employees in FMLA coverage has raised questions for employers. In the 2023 Field Assistance Bulletin, the DOL clarified that an employee’s worksite for FMLA eligibility is the office to which they report or from which their assignments are made. This effectively limits remote workers’ access to protected leave under FMLA.
Another key concern regarding FMLA is whether certain health conditions, including mental health issues, qualify as “serious health conditions” under the Act. Generally, to meet the criteria, a health condition must involve inpatient care at a hospital or medical facility, incapacitating conditions requiring ongoing medical treatment, or childbirth. As of November 2024, the DOL Wage and Hour Division has concluded 349 FMLA compliance actions, with violations resulting in the recovery of more than $1.48 million in back wages for 344 affected employees. The most common FMLA violations include denial of leave, failure to reinstate employees to their same position or benefits, termination, and discrimination.
Access to FMLA is not equally distributed across the workforce. Many workers report returning from leave only to find their benefits have been canceled, or that their job or performance evaluations have changed. Racial, ethnic, and class disparities in access to and use of FMLA are increasingly being documented across the job market. Data from the National Compensation Survey shows that low-paid workers are less likely to have access to paid leave than higher-paid workers. Research by the United States Bureau of Labor Statistics also reveals that Hispanic workers have lower rates of paid leave access than their White non-Hispanic counterparts and that disparities in paid leave access also exist based on factors such as education and employment status. These disparities highlight key issues and opportunities for reform in the nation’s policy on unpaid leave for serious health conditions.