This year, the Family and Medical Leave Act (FMLA) turns 30. In that time, it has enabled millions upon millions of Americans to get the care they need or be there for their families. However, the law’s restrictive eligibility criteria mean that nearly half of all employees are not covered. Moreover, even for those who are covered, FMLA leave may be unpaid, making it out of reach for those who cannot afford to go without a paycheck.1
The [FMLA’s] restrictive eligibility criteria mean that nearly half of all employees are not covered.
This fact sheet highlights one group of workers especially likely to lack the leave protections they need: restaurant workers.
Who are restaurant workers?
Nationwide, 11.7 million people work in food services and drinking places,2 making up about 9 percent of all private sector employees:3
- Fifty-four percent of all restaurant workers are women, including nearly 70 percent of servers.4
- Among women in the industry, more than a third are mothers, and of those, more than half are single moms.5
- About half of restaurant workers are people of color, and almost a quarter are immigrants.6
- Restaurant workers are young: The median age in food preparation and serving-related occupations is just 29.2 years old.7 More than 40 percent of those in these occupations are under 25, more than triple the percentage (12 percent) of those under 25 across all employment.8
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) is a federal law that was enacted on February 5, 1993. To those who are covered, the FMLA guarantees the right to up to 12 weeks of unpaid time off to address one’s own or a family member’s serious health needs, bond with a new child, or deal with the impact of military deployment.9 Covered employees have the right to get their jobs back following leave, to not be retaliated against or interfered with, and to keep employer-provided health insurance while on leave.10
Are restaurant workers covered by the FMLA?
To qualify for FMLA coverage, employees must meet all three of the following conditions:
- Be employed by an employer with at least 50 employees within a 75-mile radius of the employee’s work site
- Have worked at least 1,250 hours for that employer in the previous 12 months
- Have been employed by that employer for at least 12 months11
Cumulatively, these factors mean that 44 percent of all employees are not covered by the FMLA, with low-income workers especially likely to be left out.12 Restaurant workers are especially likely to be excluded, and as a result, most restaurant workers are not entitled to the FMLA’s protections.
Nationally, 70 percent of employees in food services and drinking places work for establishments with fewer than 50 employees,13 excluding them from FMLA coverage even if they meet the other eligibility criteria. Restaurant workers are twice as likely as the general private sector workforce to work for employers too small to be covered by the FMLA.14
In addition, restaurant workers often work part time, which can make it harder to meet the FMLA’s second eligibility requirement: having worked for that employer for at least 1,250 hours in the past year, or an average of about 24 hours per week. Almost 1 in 4—22.3 percent of—employees in food services and drinking places work less than 24 usual hours a week,15 likely excluding them from FMLA coverage even if they meet the other eligibility criteria.
Finally, to qualify for FMLA coverage, an employee must have been with their current employer for at least one year. This is a particular challenge in the high-turnover restaurant world: Food services and drinking places have a median employment tenure of just 1.7 years, the lowest of any industry.16 In 2021, there was 86.3 percent turnover in the accommodations and food services sector, meaning that less than 14 percent of employees were still employed at the same employer after a year.17 Therefore, more than 4 out of 5 workers in the sector are likely not eligible for FMLA coverage based on employment tenure, even if they meet the other requirements.
What are the challenges of unpaid leave?
Because eligibility for FMLA coverage requires meeting all three criteria, most restaurant workers will be excluded by failing to meet at least one. But even for those who do qualify, taking leave may still be out of reach if they cannot afford to forgo a paycheck. Across all workers, inability to afford unpaid leave is the most commonly cited reason for not taking needed leave,18 but this is even more pronounced among low-wage workers.19
Across all workers, inability to afford unpaid leave is the most commonly cited reason for not taking needed leave.
Restaurant work is low-wage work. Workers in food services and dining places have an average weekly income of $458 and an average annual income of $23,815.20 As a result, restaurant workers are more than twice as likely as the general population to live in poverty, and more than 40 percent of restaurant workers are living with an income below two times the federal poverty line.21
For those who are already struggling, losing even a day’s pay, much less a week’s or several weeks’ pay, could mean not making rent or being able to buy groceries. Therefore, even among the minority of restaurant workers who are covered by the FMLA, its promise remains out of reach for many.
What about paid leave?
The financial pressures of unpaid leave are particularly profound given that restaurant workers are especially unlikely to have access to paid leave. Only about half of accommodations and food service workers have access to paid sick time, compared with 77 percent of all private sector workers.22 To cover a longer absence, only 19 percent of accommodations and food service workers have access to short-term disability coverage through an employer,23 and only 10 percent have access to paid family leave24—each less than half the rate of the total private sector workforce.
Read more on paid family and medical leave:
At 30, the FMLA is older than many of the workers who benefit—or do not benefit—from its protections. Congress should ensure that restaurant workers, and others like them who are too often left out, finally have the protections they need by pursuing legislation to expand FMLA eligibility, such as the Job Protection Act, and by continuing to fight for paid leave. It is time to honor the FMLA’s legacy by ensuring that all workers finally have the paid, protected leave they need.
The author would like to thank Beth Almeida, Maggie Jo Buchanan, Amina Khalique, Lawren Long, and Christian Weller for their assistance in preparing this piece.