paid family leave

Who’s Left Behind by Unpaid Leave

Nida Kadayifci

Nida Kadayifci is a student at Harvard Law School and a member of the Labor and Employment Lab.

The Family Medical Leave Act (FMLA) is a federal employment law that aims to create a nationwide floor of family and medical leave rights. It offers eligible employees 12 weeks of unpaid leave for the birth and care of a newborn child, placement of a child for foster care or care for a newly placed child, and emergency care for an “immediate family member” with a “serious health condition” or when the employee is unable to work for a “serious health condition.” This is a minimum level of protection that is not adequate. Based on an ILO report, out of 185 countries in the study, only the United States and Papua New Guinea did not have paid maternity leave. Denying leave is an “affront to human dignity,” an oppressive feature of unregulated capitalism, and leave without pay is “unfreedom for the neediest.”

Yet the unpaid feature of the FMLA is not the only problem. The other issue is that even this inadequate floor is highly difficult to get. Under the FMLA, “[e]mployees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.” This post argues that these eligibility thresholds should be reformed because they have significant disparate impacts and lead to an inequitable distribution in the labor market.

Disparate Impact on Women

First, the “1,250 hours for 12 months” threshold can have a considerable disparate impact on women as women are over-represented in part-time work in the U.S.

The over-representation of women in part-time work has been a pattern around the world and led to the development of the doctrine of indirect discrimination or disparate impact in several jurisdictions. In 1981 the Court of Justice of the European Union ruled in the landmark case Jenkins v Kingsgate that lower hourly rates for part-time work has an adverse impact, and violates the equal pay for equal work principle if not justified, because part-time workers are “predominantly women.” Similarly, the Supreme Court of Canada held that eligibility rules for pensions violated the right to equality as it disadvantaged part-time workers, who were disproportionately women due to childcare responsibilities.

The FMLA eligibility rules lead to consequences analogous to these decisions. Part-time workers are at greater disadvantage as it is harder to satisfy the 1,250 hours through part-time work. In fact, part-time workers might not be able to reach 1,250 hours over 12 months with the same employer. A part-time employee who works 20 hours per week for one employer works approximately 1,040 hours over 12 months, failing eligibility. The issue is that based on the 2019 U.S. Bureau of Labor Statistics (BLS), six in ten part-time workers are women. Another 2021 BLS study found that employed fathers are still more likely to work full time than employed mothers. Hence, given that part-time workers are less likely to satisfy the eligibility requirement, women experience disproportionate disqualification.

Second, the “same employer over 12 months” criterion can also impact women disproportionately. Data across LinkedIn shows that women have been changing jobs at a greater rate than men since 1986, and this gap is “widening” (in 2021, job transitions for women increased by 54%, compared to 46% for men). If women are more likely to change employers within 12 months, they are more likely to be excluded from FMLA eligibility.

These claims regarding the disparate impact on women have overall empirical support. A statistical study by Herr et al., compiling the 2018 FMLA Surveys and produced for the Department of Labor, found that “more women than men still have an unmet need for leave (9 percent versus 6 percent).” Finally, while 63% of parents with a spouse were eligible for the FMLA, only 43% of single parents were eligible. 80% of single parents in the U.S. are single mothers, according to the U.S. Census Bureau in 2021.

Disparate Racial Impact

There are serious disparate racial impacts from the eligibility rules as well. For example, African American employees had higher unmet need for leave (11%), compared to white and Asian employees (6%). Moreover, the statistical difference between “insufficient employment tenure or hours worked” was also considerable (White 20%, African American 26%, Asian 24%). One possible explanation for this was job turnover rates: according to the Pew Research Center’s study from 2019 to 2022, “Hispanic and Black workers are more likely to switch employers than White and Asian workers.”

Justifications?

Although it could be claimed that the FMLA is a federal floor and states like Massachusetts and New York have reduced thresholds or adopted different criteria, many states, such as Illinois, Arkansas, Michigan, and Texas, rely on FMLA eligibility. In fact, only eighteen states have adopted different family medical leave standards so far. The criteria are also hard to justify as a business necessity. The FMLA leave is unpaid. Reducing the thresholds or changing the criteria cannot be too onerous.Additionally, the U.S. is an outlier as it is the only country in the world to have a broad restriction on eligibility for sick leave “based on firm size.” Finally, having to work with the same employer over 12 months is inconsistent with today’s economy. The modern labor market is described by its flexibility and high turnover. Yet workers who are trying to qualify for the FMLA become dependent on their employer for 12 months to win eligibility. The criterion is outdated.

Concluding Remarks

The FMLA eligibility criteria exclude women and minorities at a disproportionate rate. Hence, disproportionately, women and minorities who depend on the FMLA for leave may have to decide between childcare and healthcare, or work.

What is to be done? The criteria could be amended to incorporate a more flexible standard, taking into account, for example, hours accrued over one’s entire employment history. At the very least, the thresholds must be reduced to increase the scope of eligibility and minimize the gap. The Modernizing FMLA report shows that lowering the employer size threshold to 40 “would result in over 900,000 workers gaining access.” Reducing the same-employer criteria to 6 months would increase the coverage by 6.5 million workers. Changing 1,250 hours to 780 would provide “an additional 3.4 million workers” unpaid family and medical leave entitlement. It is time to reform the FMLA eligibility criteria.

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