Congress Proposes Significant Changes to the FMLA

Despite being heavily industrialized, the U.S. is still among the nations that don’t concisely offer a minimum standard for paid family or medical leave. Proposals for universal paid leave have been a heavily debated subject. 

The Federal Family and Medical Leave Act (FMLA) has played a significant role in protecting the jobs and health insurance of workers facing medical or family challenges that must see them off work momentarily. 

Since its passage in 1993, the FMLA has offered eligible employees unpaid time off and job protection for family and medical reasons. However, data shows that only 56% of the workforce is eligible for protection. 

Congress and other states have proposed significant changes to FMLA that could affect compliance within HR teams. This includes leave for mental health reasons, expansion of qualified employees, and universal paid family and medical leave.

Here’s what you need to know about the upcoming and potential upcoming changes. 

What is Unpaid Family and Medical Leave as per FMLA

Unpaid family and medical leave is time off work, including relevant employment protections. The Family and Medical Leave Act gives employees the right to take an unpaid leave of up to 12 weeks within a year, without the risk of losing their job, health insurance, or retaliation from the employer.

However, the employee is not guaranteed the right to get paid during the leave period. The employer reserves the right to decide whether they’ll offer pay and by how much. Therefore, compliance is only gauged by whether the eligible employee was awarded their right to leave as per the FMLA.

According to federal law, unpaid family and medical leave covers the following needs:

Family Leave

Family leave includes parental leave for bonding with a new child for parents of all genders, including foster and adoptive parents. 

It also includes caregiving leave to care for a loved one with a serious health condition and deployment-related leave to meet the needs connected with a pending or active military service of a loved one.

Medical Leave 

Medical leave allows an employee to attend to their serious health condition. This includes chemotherapy, prenatal care, or recovery from surgery.

As per the FMLA, a serious health condition is an injury, illness, or other medical condition that requires ongoing treatment or inpatient care by a healthcare provider.

The Variations Across States

The FMLA provides federal law regarding unpaid leave for family and medical reasons. However, some states have passed additional legislation that gives employees more benefits. 

For instance, many states have passed paid leave requirements that offer paid leave entitlements to employees taking time off for reasons stipulated by the FMLA. This is an increase from four states in 2016.

These laws seek to improve the number of employees with access to paid family and medical leave, which currently stands at 23%, according to data. More data shows that 60% of employees aren’t eligible for medical leave.

Part-time and low-wage workers in certain occupations are the least protected. 

The Changes Proposed to the FMLA

Congress has proposed several changes to the FMLA, some of which are about to take full effect. They include the following:

Leave for Mental Health Treatment

According to the National Institute of Health, about 21% of U.S. adults live with a mental illness. However, only half receive the help they need.

The U.S. Department of Labor has updated the FMLA, providing job-protected leave for employees seeking mental health treatment. The leave for mental health also allows an eligible employee to take time off to take care of a spouse or loved one suffering from a mental health condition. 

With this update, the FMLA now includes mental health as a serious health condition, especially if it requires inpatient care or continuous treatment from a healthcare provider or a clinical psychologist.

Leave for COVID-19

Despite the rate of new COVID-19 infections plateauing, there are continued risks of infection that can affect millions of U.S. workers. Data shows about 8.8 million workers missed work due to pandemic-related reasons in early January. 

According to the FMLA, an employee working for a covered employer is eligible for unpaid medical leave to get medical attention for themselves or a loved one ailing from COVID-19. COVID-19 cases are also recognized as a serious health condition. 

Most medical practitioners treat COVID-19 cases via telemedicine. The FMLA recognizes telemedicine for treating COVID-19 as similar to in-person visits to ensure the eligibility of affected employees as per the definition of a serious health condition.

Expansion of Employees Who Qualify for Family and Medical Leave

Under the Family Leave Modernization Act, Congress has proposed expanding who can qualify for family and medical leave, with additional leave for family caregivers and parents.

According to the bill, private sector and federal employees are eligible for leave to care for a domestic partner or an individual closely related to them, regardless of their biological or legal relationship. 

The employee must show that the individual in question has a serious health condition or has valid needs to attend to due to the individual’s involvement with the Armed Forces. 

In the case of an individual in the Armed Forces, an employee can qualify for family and medical leave if they are the next of kin, a domestic partner, or of a family-like relationship to them.

Private sector and federal employees can also take leave to attend or participate in their children’s or grandchildren’s community organization or school activities, care for their elderly relatives, or meet routine medical care needs for their families.

The Universal Paid Family and Medical Leave

This is perhaps the most anticipated change to FMLA. With most states adopting their laws for paid family and medical leave, Congress wants to make a federal change, mandating employers to pay their employees during family and medical leave. 

Under the Build Back Better bill (BBB), Congress plans to introduce the Universal Paid Family and Medical Leave (UPFML) by July 2023. This amendment would provide 12 weeks of paid FMLA benefits for all workers within a 12-month period.

Depending on the bill’s fate, several states are building contingencies for implementing robust paid family and medical leave laws based on the bill’s provisions.

Prepare Yourself for Compliance

With many changes being effected and expected for FMLA, HR teams must always be compliant with federal and state laws. Contact VirgilHR and request a free demo to learn how VirgilHR can enable HR teams to stay compliant amidst the changing regulations.