Workers in the United States currently are not guaranteed a single paid day off by federal law, and many workers aren’t even entitled to unpaid time off. The Center for American Progress presents a series of fact sheets explaining the major types of laws that give workers rights in relation to workplace leave. This fact sheet addresses important opportunities to expand access to unpaid family and medical leave under the federal Family and Medical Leave Act (FMLA).
Background: The Family and Medical Leave Act
As prior CAP work has explored in detail,1 the FMLA is a federal law that guarantees covered employees the right to up to 12 weeks of unpaid leave in a year.2 The FMLA allows covered employees time off from work to address their own serious health condition, care for a family member who has a serious health condition, bond with a new child, or address the impact of a family member’s military deployment.3
Workers who take FMLA leave are entitled to get their jobs, or a comparable job, back following their leave,4 and employers are not allowed to punish or discriminate against employees for exercising their rights under the law.5 Additionally, employees who receive health insurance through their employer are entitled to continuation of that coverage while they are on FMLA leave.6 Legally, a worker may be unpaid during the period of their FMLA leave,7 though some workers receive pay while on leave—for example, through their paid sick time or through a state paid leave program.8
The FMLA is a critically important law that has been used nearly half a billion times since its passage in 1993.9 It offers essential protections to the employees it covers, but it includes limitations that restrict how and by whom it can be used. The proposed legislation to expand the FMLA discussed below would address some of these limitations.
Expanding FMLA eligibility through the Job Protection Act
One of the largest limitations of the FMLA is that its restrictive eligibility requirements exclude almost half of all U.S. employees,10 including nearly two-thirds of all low-wage workers.11 To address these problems, Rep. Lauren Underwood (D-IL) and Sen. Tina Smith (D-MN) introduced the Job Protection Act (JPA) in 2023.12 This bill would reform the FMLA’s three eligibility requirements, expanding coverage to nearly all employees.
Employer size
Currently, the FMLA only applies to employers with at least 50 employees.13 In addition, even where an employer’s total workforce is large enough to be covered, 50 employees must be within a 75-mile radius of an employee’s work site for that employee to qualify.14 Nationwide, more than 41 percent of employees are automatically excluded from FMLA coverage due to the size of their employer.15
The JPA would extend FMLA coverage to employers of all sizes, including those with as few as one employee, regardless of how those employees are geographically distributed.16 Removing the 50-employee minimum would have particularly pronounced impacts in industries such as restaurants17 and construction18 that employ large numbers of immigrant workers and workers of color. Two-thirds of restaurant workers work for establishments with fewer than 50 employees, as do 58 percent of construction workers.19 Similarly, covering even the smallest employers is essential to reach most domestic workers, who are overwhelmingly women and disproportionately likely to be immigrants and people of color.20
Employment duration
Currently, employees must be employed by their FMLA-covered employer for at least one year in order to qualify for FMLA leave.21 The JPA would reduce this amount of time to 90 days.22 This would make it much easier for employees to qualify, especially those for whom the one-year requirement is especially challenging.
For example, this change would expand coverage for military spouses who typically move every two to three years due to their spouse’s service23 and often need months to find new employment after doing so.24 Temporary workers, among whom Black and Latino workers are significantly overrepresented,25 would be much more likely to have spent 90 days with an employer than a full year when a need for leave arises. More broadly, this change would expand coverage in industries that have high turnover rates such as home care,26 where workers are overwhelmingly women and disproportionately Black and Hispanic.27
Hours worked
To qualify for coverage, employees currently must have worked for their FMLA-covered employer for at least 1,250 hours in the past year,28 or an average of about 24 hours per week. The JPA would remove this requirement, allowing workers to qualify regardless of how many hours they work.29
This change would predominately benefit part-time workers. In 2022, on average, more than 34 million Americans—disproportionately women30—worked part time.31 Workers in low-wage industries would especially benefit as well. Prior CAP research found that 22.3 percent of employees in food services and drinking places work fewer than 24 usual hours a week, which immediately excludes them from FMLA coverage.32
The need for paid leave
All workers deserve the time they need to care for themselves and their families, backed by the peace of mind of knowing they have a job to return to when they are ready. Expansions of the FMLA such as those outlined in this fact sheet would make meaningful progress toward that goal, with real benefits for workers and their families. However, these changes alone would not address the fact that the FMLA guarantees only unpaid leave.33 The fact that FMLA leave does not guarantee pay puts it out of reach for workers who cannot afford to go without a paycheck,34 even if coverage is expanded. In addition to expansions in job-protected leave, therefore, workers also need paid leave—something that can be achieved through the passage of the federal FAMILY Act or similar state laws.35
Expanding the definition of family through the Caring for All Families Act
Time off under the FMLA for a loved one’s serious health condition can only be used for an employee’s spouse, parent, or child who is either under the age of 18 or incapable of self-care under a narrow legal definition of disability.36 This exclusionary definition of family means that even where workers are eligible for FMLA leave, many do not have the legal right to care for those they love. To meet the needs of all families, Sen. Dick Durbin (D-IL) and Rep. Jahana Hayes (D-CT) have introduced the Caring for All Families Act.37
This bill proposes expanding the current parameters of the FMLA to also cover care for domestic partners, adult children,38 parents-in-law, siblings, grandchildren, grandparents, nieces, nephews, uncles, and aunts.39 This would be of particular value to the millions of people, particularly Black and Hispanic people, who live in multigenerational households or with extended family.40
Moreover, the Caring for All Families Act would ensure that covered workers are able to care for chosen family members: loved ones with whom they may not have legal or biological relationships.41 This would benefit all workers but is particularly important for LGBTQ people, who disproportionately rely on chosen family.42 As previous CAP research shows, 58 percent of LGBTQI+ people and 46 percent of non-LGBTQI+ people “have been relied on by chosen family to provide support for a health-related need.”43
Additional opportunities to improve the FMLA
Other important opportunities to improve the FMLA include:
- Expanding protections for military families, military caregivers, and veterans44
- Adding coverage for “safe leave” needs related to sexual or domestic violence45
- Removing current limits on the total number of leave weeks for parents who work for the same employer46
- Explicitly covering time off for organ donation47