Закон США о семейном и медицинском отпуске (FMLA)

US labor law

The Family and Medical Leave Act of 1993 (FMLA) is a United States labor law requiring covered employers to provide employees with job protected, unpaid leave for qualified medical and family reasons. The FMLA was a major part of President Bill Clinton's first term domestic agenda, and he signed it into law on February 5, 1993. The FMLA is administered by the Wage and Hour Division of the United States Department of Labor. The FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12 month period to care for a new child, care for a seriously ill family member, or recover from a serious illness. The FMLA covers both public and private sector employees, but certain categories of employees, including elected officials and highly compensated employees, are excluded or face certain limitations. To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months, have worked at least 1,250 hours over the past 12 months, and work for an employer with at least 50 employees within a 75 mile radius. Several states have passed laws providing additional family and medical leave protections for workers.

Before the 1992 presidential election, a family medical leave act had been vetoed twice by President George H. W. Bush. After Bill Clinton won the 1992 election, a law protecting family medical leave became one of his major first term domestic priorities. Rapid growth in the workforce, including a large number of women joining, suggested a federal regulation that would support workers who wanted to raise a family and/or needed time off for illness related situations. Clinton signed the bill into law on February 5, 1993 (codified under , , and ), with enforcement of the bill to start on August 5, 1993. The United States Congress passed the Act with the understanding that "it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing [and] the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting." It also stressed the Act was intended to provide leave protection "in a manner that accommodates the legitimate interests of employers." On December 20, 2019, as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, the Federal Employee Paid Leave Act (FEPLA) amended the FMLA to grant federal government employees up to 12 weeks of paid time off for the birth, adoption, or foster of a new child. The law applies to births or placements occurring on or after October 1, 2020.

Under §2612(d)(2)(A) an employer can make an employee substitute the right to 12 unpaid weeks of leave for "accrued paid vacation leave, personal leave or family leave" in an employer's personnel policy. Originally the Department of Labor had a penalty to make employers notify employees that this might happen. However, five judges in the US Supreme Court in Ragsdale v Wolverine World Wide, Inc held that the statute precluded the right of the Department of Labor to do so. Four dissenting judges would have held that nothing prevented the rule, and it was the Department of Labor's job to enforce the law.

After unpaid leave, an employee generally has the right to return to their job, except for employees who are in the top 10% of highest paid and the employer can argue refusal "is necessary to prevent substantial and grievous economic injury to the operations of the employer." In full, the rights during and after unpaid leave are to:
the same group health insurance benefits, including employer contributions to premiums, that would exist if the employee were not on leave. restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility. protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave. protection of the employee to not have their rights under the Act interfered with or denied by an employer. protection of the employee from retaliation by an employer for exercising rights under the Act. intermittent FMLA leave for their own serious health condition, or the serious health condition of a family member. This includes occasional leave for doctors' appointments for a chronic condition, treatment (e. g., physical therapy, psychological counseling, chemotherapy), or temporary periods of incapacity (e. g., severe morning sickness, asthma attack). "Highly compensated employees" have limited rights to return to their jobs. They are defined as "a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed." Their employers are not required to restore them to their original position (or an equivalent position with equivalent pay and benefits, as is guaranteed to other employees) if the employer determines that denying the employee their position is "necessary to prevent substantial and grievous economic injury to the operations of the employer" but there is no right to a jury for reinstatement claims. Employees can seek damages for lost wages and benefits, or the cost of child care, plus an equal amount of liquidated damages unless an employer can show it acted in good faith and reasonable cause to believe it was not breaking the law. There is a two year limit on bringing claims, or three years for willful violations.

Some states have enacted laws that mandate additional family and medical leave for workers in a variety of ways. By 2016 four states had laws for paid family leave: California since 2002, New Jersey since 2008, Rhode Island since 2013, New York since 2016, and the District of Columbia since 2019. Washington state passed a paid family and medical leave law in 2007, but the law has not taken effect due to a lack of funding mechanism.

The federal FMLA only applies to employers with 50 or more employees within 75 miles. Some states have enacted their own FMLAs that have a lower threshold for employer coverage:
Maine: 15 or more employees (private employers) and 25 or more (state or municipal employers). Maryland: 15 or more employees (private employers): up to seven days for bone marrow donation, 30 days for organ donation. Minnesota: 21 or more employees (parental leave only). Oregon: 25 or more employees. An employee must have worked at least 180 days, and averaged 25 hours per week at the time medical leave is requested
Rhode Island: 50 or more employees (private employers) and 30 or more employees (public employers). Vermont: 10 or more employees (parental leave only) and 15 or more employees (family and medical leave). Washington: 50 or more employees (FMLA reasons besides insured parental leave); all employers are required to provide insured parental leave. District of Columbia: 20 or more employees.

The federal FMLA only applies to immediate family—parent, spouse, and child. The 2008 amendments to the FMLA for military family members extend the FMLA's protection to next of kin and to adult children. The Department of Labor on June 22, 2010, clarified the definition of "son and daughter" under the FMLA "to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship" and specifying that "an employee who intends to share in the parenting of a child with their same sex partner will be able to exercise the right to FMLA leave to bond with that child." In February 2015, the Department of Labor issued its final rule amending the definition of spouse under the FMLA in response to the decision in United States v. Windsor, effective March 27, 2015. The revised definition of "spouse" extends FMLA leave rights and job protections to eligible employees in a same sex marriage or a common law marriage entered into in a state where those statuses are legally recognized, regardless of the state in which the employee works or resides. Even if an employee works where same sex or common law marriage is not recognized, that employee's spouse triggers FMLA coverage if the employee married in a state that recognized same sex marriage or common law marriage. Some states had already expanded the definition of family in their own FMLAs:
California: Domestic partner and domestic partner's child. Connecticut: Civil union partner, parent in law. Hawaii: Grandparent, parent in law, grandparent in law or an employee's reciprocal beneficiary. Maine: Domestic partner and domestic partner's child, siblings. Maryland: Allows the employee to use time for immediate family under the same rules if taking it for themselves. Includes step, adopted and even people who were primary caregivers even if not related. New Jersey: Civil union partner and child of civil union partner, parent in law, step parent. Oregon: Domestic partner, grandparent, grandchild or parent in law. Rhode Island: Domestic partners of state employees, parent in law. Vermont: Civil union partner, parent in law. Wisconsin: Parent in law. District of Columbia: Related to the worker by blood, legal custody, or marriage; person with whom the employee lives and has a committed relationship; child who lives with employee and for whom employee permanently assumes and discharges parental responsibility.

FMLA leave can be used for a worker's serious health condition, the serious health condition of a family member, or upon the arrival of a new child. State FMLA laws and the new military family provisions of the FMLA have broadened these categories:
Connecticut: Organ or bone marrow donor. Maine: Organ donor; death of employee's family member if that family member is a servicemember killed while on active duty. Maryland: Maryland Family Leave Act (MFLA) – Organ donor, Person Standing in Loco Parentis, For Service Leave, and added a specific anti retaliation penalty on top of FMLA recovery. Runs parallel to FMLA. Oregon: Care for the non serious injury or illness of a child requiring home care.

The act was controversial at its passage. Much of the controversy focused on its impact on the business community, and on whether the law should be gender neutral or not. In order to make the law more acceptable, it was argued that the law would reduce abortions. However, this is based on the assumption that men will take advantage of the opportunity of unpaid leave at comparable rates to women. According to Grossman, there is no basis for this assumption upon the inception of the legislation and no evidence has been found today to support this assumption. Therefore, the employer incentive to prefer male employees is preserved despite the equal opportunity for both sexes to take leave. Moreover, the FMLA is much less comprehensive than Western European leave policies. Namely, the United States is the only industrialized country without paid leave for parents. This illustrates the lack of provisions offered in the United States as compared to that of other industrialized countries. For instance, all Western European nations have maternity paid leave and over half have paternity and sick child care paid leave, while the United States has no paid leave. Additionally, workplace fairness has been questioned under the Act. For instance, any woman specific benefits provided by the legislation were considered special treatment and thus unacceptable, and ignoring the idea that women may have a greater share of burden of caregiving in reality. In retort, supporters may argue that creating such legislation that recognizes the female's greater role in child care, stereotype would be reinforced. The success of the implementation of the policy is also controversial because it is questioned whether the policy is actually going to those who need the benefits. For instance, since the leave offered is unpaid, majorities of eligible employees can not take time off because they can not afford to do so. And according to Pyle and Pelletier, eligible workers may not even know about this policy and the benefits allotted to them. Like any other federal regulation, it is strictly prohibited for an employer to discriminate towards an employee (especially if the employee is using their FMLA rights), and to strain from providing accurate information for all employees to access.

Vicki Yandle, a receptionist who was fired after asking for a few weeks of time off to care for a daughter with cancer, was on stage with President Clinton when the law was signed.