Order Code RL30893
Report for Congress
Received through the CRS Web
Explanation of and Experience Under
the Family and Medical Leave Act
Updated February 7, 2003
Specialist in Labor Economics
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Explanation of and Experience under the
Family and Medical Leave Act
Congress passed the Family and Medical Leave Act of 1993 (FMLA, P.L. 1033) as one means of easing the time conflicts that have developed in the past few
decades as more married mothers began to work, increasingly on a full-time basis,
outside the home. While employed single parents always have felt the pressure of
trying to fulfill both workplace and child-rearing responsibilities, this work-family
juggling act increasingly has spread to married couples with young children. The
aging of the population and the lengthening of life spans makes it increasingly likely
that individuals also will have to grapple with the demands of their jobs and the
obligations of caring for elderly relatives.
The Family and Medical Leave Act requires private employers with at least 50
employees on their payrolls for at least 20 workweeks in the current or preceding
calendar year and public employers, regardless of size, to extend job-protected,
unpaid leave of at least 12 weeks to employees who meet length-of-service and
hours-of-work eligibility requirements (e.g., worked for the employer at least 12
months and for a minimum of 1,250 hours in the 12 months preceding the start of
their FMLA leave). Employees may elect, and employers may require them, to
substitute accrued paid leave for FMLA leave. Leave under the Act is available to
employees upon the birth of a child or placement of an adopted or foster child; to
care for a newborn, newly adopted, or newly placed foster child; and to care for their
own, a child’s, a spouse’s or a parent’s “serious health condition.” Employees are
entitled to take leave associated with a serious health condition on an intermittent
basis or work a reduced schedule (e.g., fewer hours per day or days per week).
Experience under the FMLA is assessed in a 2001 report, which is based upon
an employee and an employer survey commissioned by the U.S. Department of
Labor. Almost 62% of public and private sector employees worked at covered
employers and met the Act’s eligibility criteria during the 18-month survey period
that spanned 1999 and 2000. Although the share of eligible employees at covered
worksites who took FMLA leave increased significantly over time, FMLA leavetakers accounted for only 1.9% of all employees. Estimates of the number of
employees who took leave under the Act in 1999-2000 ranged from 2.2 million to 6.1
million. One-fifth of FMLA leaves were taken on an intermittent basis. Employees
most often took FMLA leave to care for their own health conditions. Two-thirds of
persons who took leave for FMLA-reasons received some pay. Employees most
often said “lack of funds” was the cause of their not taking leave for FMLA reasons.
Almost 64% of employers rated the Act as very/somewhat easy to administer in
1999-2000, which was greatly below the 85% recorded 5 years earlier. Many more
employers reported in 2000 than in 1995 that the law had a negative impact on
individual productivity and absences. The human resources professionals who
responded to a 2000 survey of the Society for Human Resource Management
indicated that productivity loss was the most costly consequence of the FMLA. In
addition, 63% of respondents said that, because of the FMLA, their firms had had to
retain some employees who otherwise would have been terminated for poor
An Overview of the FMLA and Its Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 2
By Whom, To Whom, and For What Reason . . . . . . . . . . . . . . . . . . . . . . . . 2
Length and Form of Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Employee and Employer Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Supreme Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maintenance and Accrual of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Record-Keeping Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experience Under the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Employer Coverage and Employee Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 8
Knowledge of the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Use of FMLA Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Intermittent Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Reasons for Using FMLA Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Returning to Work After FMLA Leave . . . . . . . . . . . . . . . . . . . . . . . . 10
Impact on Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Employer Compliance with P.L. 103-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Employer Administration of the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Impact of the Benefit Mandate on Covered Employers . . . . . . . . . . . . . . . . 14
List of Tables
Table 1. Employees Taking Their Longest Leave Under the FMLA . . . . . . . . . 10
Table 2. Reasons for Longest Leave Taken Under the FMLA . . . . . . . . . . . . . . 11
Table 3. Changes in Selected Costs Since Coverage Under the FMLA Began,
by Establishment Size . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Appendix Table 1. Compliance Activity Under the FMLA . . . . . . . . . . . . . . . . 16
Explanation of and Experience Under the
Family and Medical Leave Act
Congress passed the Family and Medical Leave Act of 1993 (P.L. 103-3) as one
means of easing the time conflicts that have developed in the past few decades as
more and more married mothers began to work outside the home. “The majority of
American women have always been mothers, and now a majority of mothers are also
employees.”1 While employed single parents always have felt the pressure of trying
to fulfill both workplace and child-rearing responsibilities, the work-family juggling
act increasingly has spread to married couples with dependent children (i.e., under
age 18). Both spouses have been breadwinners in the majority of these families since
1978.2 In 2000, for example, the husband and wife were in the labor force in 67%
of married-couple families with dependent children. The share of married mothers
caring for their own infants (i.e., less than 1 year old) and bringing home paychecks
has grown greatly as well. The labor force participation of mothers with infants was
53%, and 648% of them were employed full-time (i.e., 35 or more hours per week).
More broadly, 60% of all women were in the labor force, 75% of all working women
held full-time jobs, and 47% of all labor force participants were women.
Because of the aging of the baby-boom generation and the lengthening of life
spans, it also is increasingly likely that individuals will have to grapple with the
competing demands of their jobs and of caring for parents or elderly relatives. In the
mid-1990s, the typical informal or family caregiver of an older friend or relative was
an employed, married, middle-aged woman who sometimes had a dependent child
at home.3 According to one estimate, about one-fifth of working parents are
members of the “sandwich generation” (i.e., providers of both elder care and child
care).4 With women more likely than men to be unpaid caregivers and with mothers
more likely than not to be in the labor force, working women in general — and
working mothers in particular — are widely viewed as the chief beneficiaries of the
Family and Medical Leave Act (FMLA).
This report summarizes the major provisions of the FMLA, the regulations (at
29 CFR Part 825 for most employers and employees) issued by the Clinton
Spain, Daphne, and Suzanne M. Bianchi. Balancing Act: Motherhood, Marriage, and
Employment among American Women. New York, Russell Sage Foundation, 1996.
U.S. Bureau of Labor Statistics.
National Alliance for Caregiving and the American Association of Retired Persons.
Family Caregiving in the U.S.: Findings from a National Survey, 1997.
James T. Bond, with Ellen Galinsky and Jennifer E. Swanberg, The 1997 National Study
of the Changing Workforce. NY, Families and Work Institute, 1998.
Administration, and a related Supreme Court decision. It also examines results from
the latest survey commissioned by the U.S. Department of Labor (DOL) about
experience under the Act.
An Overview of the FMLA and Its Regulations
Prior to passage of the FMLA, the provision of family and medical leave—like
that of many employee benefits—was at the discretion of individual employers. Some
employers offered their employees sick leave to care for their own illness and family
leave to care for the illnesses or immediate family members, while other employers
did not. An employee’s request for leave—whether paid or unpaid—could be
denied, and the family caregiver risked losing his/her job if absent from work.
Further, some employers had formal leave policies that were applied uniformly to
their workforces while others had informal policies and the granting of leave
depended on the particular circumstances.
The FMLA, described in detail below, prescribes a minimum level of
family/medical leave benefits. In those jurisdictions that have enacted their own
statutes, employees are entitled to the most generous benefit provided under the
federal or state law.5 For example, in 2002, California became the first state to
provide for (partially) paid family and medical leave. In addition, employers may
offer or negotiate with unions for family/medical leave that is more generous than
contained in P.L. 103-3 (e.g., covers employees who have worked for the employer
less than 12 months).6
By Whom, To Whom, and For What Reason
The Act requires
private employers who have had 50 or more employees on their
payrolls for at least 20 workweeks in the current or preceding
For example, several states have passed legislation that allows employees to take family
leave for reasons other than those in the FMLA. Laws in such states as California, Illinois,
Massachusetts, Minnesota, North Carolina, Rhode Island, Vermont, and the District of
Columbia require employers to provide employees varying amounts of time away from work
to attend some of their children’s school activities. Employers in Utah must grant
employees leave to accompany their children to court appearances, and those in Oregon
cannot take adverse actions against employees required to attend court hearings involving
their children. In Massachusetts, employers must give employees time-off to accompany
children or elderly relatives to medical or other appointments. In Vermont, employers must
grant employees leave to go to medical appointments or to meet similar obligations. U.S.
Bureau of Labor Statistics. State Labor Laws. Monthly Labor Review, various January
issues since 1994.
According to the Society for Human Resource Management’s 2003 FMLA Survey, 57%
of the human resources professionals who responded said their locations offered jobprotected leave beyond that required by the federal statute.
calendar year and who are engaged in commerce or in any
industry/activity affecting commerce, and
public employers (i.e., federal, state, and local governments;7 and
local education agencies)8
to extend job-protected,9 unpaid leave to employees who have worked for these
at least 12 (not necessarily consecutive) months,
a minimum of 1,250 hours (excluding paid or unpaid leave time) in
the 12 months preceding the start of their FMLA leave, and
who work at a facility where 50 or more persons are employed by
the employer within 75 miles
for the following reasons:
the birth of a child of the employee and to care for the newborn
the placement with the employee of a child for adoption or foster
care and to care for the newly placed child,10
to care for an immediate family member (i.e., spouse, child under
age 18 unless incapable of self-care due to an activity-limiting
disability, or parent)11 with a “serious health condition” that
necessitates the employee’s presence, or
In 1996, P.L. 104-1 (the Congressional Accountability Act) extended FMLA coverage
from staff of the House and Senate to employees of other legislative branch agencies and
P.L. 104-331 extended FMLA coverage to staff of the White House and to specified
The FMLA contains special rules for employees of local educational agencies (as defined
in the Elementary and Secondary Education Act) and any private elementary or secondary
Generally, employees returning from FMLA leave must be restored to their original jobs
or to jobs equivalent in pay, benefits, and other terms/conditions of employment. Employers
do not have to reinstate employees or continue their FMLA leave if the individuals would
have been terminated had they been working during the leave period (e.g., as part of a mass
layoff). Employers also may refuse to reinstate to their jobs the highest paid 10% of
employees, namely, key employees, if doing so will cause “substantial and grievous
economic injury” to business operations. Employers are required to provide written
notification to employees who request leave for FMLA-purposes of their status as key
employees and the reason(s) for which they are being denied job restoration. (In
determining whether restoration of key personnel would cause substantial/grievous injury,
employers can consider such things as their ability to do without the individual or the
expense of restoring the employee if a permanent replacement had been hired during the
leave period.) Employers must give these employees a reasonable period to return to work
after receipt of the notification.
FMLA leave taken to care for a newborn child or a newly placed child must end within
12 months after the birth or placement.
In some states, a common law spouse would be eligible.
to care for the employee’s own serious health condition (including
maternity-related disability) that makes them unable to perform the
functions of their position.
A serious health condition has been interpreted to mean an illness, impairment,
injury or mental/physical condition that involves
any period of incapacity or treatment connected with inpatient care
(i.e., an overnight stay) in a hospital, hospice, or residential mental
a period of incapacity requiring absence of more than 3 consecutive
days from work, school, or other regular daily activities that also
involves continuing treatment by (or under the supervision of) a
health care provider;
any period of incapacity due to pregnancy or for prenatal care;
a period of incapacity that is permanent or long-term due to a
condition for which treatment may not be effective (e.g.,
Alzheimer’s, stroke, and terminal diseases); or
any absences to receive multiple treatments (including any period of
recovery therefrom) by, or on a referral by, a health care provider for
a condition that likely would result in incapacity of more than 3
consecutive days if left untreated (e.g., chemotherapy, physical
therapy, and dialysis).
If the need for leave is related to a serious health condition, employers may
require employees to obtain multiple certifications from health care providers.12
Employees have a minimum of 15 calendar days to get certification in support of
their own or an immediate family member’s serious health condition.
Continuing treatment means treatment at least twice by a health care provider
or once if it results in a continuing regimen of care. Courts have disagreed about
what constitutes continuing treatment (e.g., some have ruled differently as to whether
taking prescription medication after having seen a health care provider meets the
Employees may opt, and employers may require them, to use accrued paid
vacation, personal, or family leave for unpaid FMLA leave taken due to and for the
care of a new born/adopted/placed child and for the care of eligible family members
with serious health conditions. Employees may opt, and employers may require
them, to use accrued paid vacation, personal, and medical or sick leave to care for
their own or an eligible family member’s serious health condition. Substitution of
In addition to licensed doctors of medicine or osteopathy and licensed podiatrists, dentists,
clinical psychologists, optometrists, or chiropractors, health care providers include nurse
practitioners, nurse-midwives, clinical social workers, Christian Science practitioners, any
health care provider recognized by the employer or the employer’s group health plan
manager, and an aforementioned health care provider who practices outside the United
States according to the laws of the country in question.
accrued paid sick or family leave for unpaid FMLA leave is subject to the employer’s
policies concerning the use of these benefits.
Length and Form of Leave
Eligible employees at covered employers are entitled to a maximum of 12
workweeks of leave for FMLA reasons in a 12-month period.13 To give employees
not only the time but also the flexibility to balance the demands of work and family,
P.L. 103-3 allows employees to take their 12-week entitlement on an intermittent
basis. In other words, the leave may be taken in separate blocks of time for the same
FMLA reason. Flexibility also was built into the Act by permitting eligible
employees to work a reduced schedule (i.e., fewer hours per week or per day).
Employees are entitled to intermittent/reduced schedule leave to care for their
own, a spouse’s a child’s, or a parent’s serious health condition. They must obtain
the agreement of their employers to use these work arrangements in connection with
the two other FMLA-qualifying reasons.
In those cases where employees can foresee the need to take intermittent or
reduced schedule leave, they must work with their employers to schedule it to avoid
disrupting business operations. Employers may temporarily transfer employees to
a job with equivalent compensation that more easily accommodates their altered
work hours. Employers must account for intermittent FMLA leave in the shortest
increment that their payroll system uses for other types of leave, so long as it is 1
hour or less.
Employee and Employer Notification
When employees can foresee the use of FMLA leave, they should provide 30
days’ notice to their employers. When the need to take leave is unforeseen,
employees are to provide notice “as soon as practicable.” This has been interpreted
to mean that employees give employers notice within 1-2 business days of realizing
their need to take leave. Employees should provide enough information to allow
employers to determine whether the leave is for a FMLA reason, although employees
do not have to refer to the Act when notifying employers. In those cases in which
employers were not made aware that an employee was away from work for a reason
covered under the statute and in which employees want the leave to be counted
toward their 12-week entitlement, employees are to give timely notice of their intent
(i.e., within 1-2 business days of returning to work).
Covered employers must provide information to their employees about the law.
The information is to be conveyed in a posting approved by the DOL and in
employee handbooks or other written material.
For the 12-month period, employers may chose a calendar year, a fixed 12-month leave
or fiscal year, or a 12-month period before or after an employee’s leave under the FMLA
In addition, employers must provide written notice within 1-2 business days of
having received an employee’s notice of need for leave stating that the leave will
count against the employee’s FMLA entitlement; detailing whether the employee
must furnish medical certification; and, among other things, explaining the
employee’s right to substitute accrued paid leave for unpaid FMLA leave and
whether the employer is requiring such substitution, the employee’s right to job
restoration upon returning from leave and whether the individual is a key employee
(see footnote 8), and the employee’s obligation to make co-premium payments for
maintenance of employer-provided group health insurance.
Supreme Court Decision. The Supreme Court decided in March 2002
(Ragsdale v. Wolverine Worldwide Inc.) that, even if an employer does not timely
designate leave as falling under the Act, the appropriate remedy is not the automatic
provision of an additional 12 weeks of FMLA leave. The divided court held that the
employee has to prove he/she was harmed as a result of the employer’s failure. In
this instance, the employee had taken the maximum amount of leave allowed by the
company (30 weeks), which is more than twice the mandated minimum in the
FMLA. The Supreme Court’s decision overrides the DOL’s regulation at 29 CFR
825.700(a), which states that if employees take paid or unpaid leave but their
employers do not designate it as FMLA leave, the leave taken does not count against
the 12-week FMLA entitlement. The court noted that the duration of leave under the
statute was a carefully balanced compromise that the regulation would have extended
for some employees and that it might have prompted employers with more generous
leave policies to curtail them, which is antithetical to the intent of lawmakers
expressed at the time of the Act’s passage.
Maintenance and Accrual of Benefits
The only fringe benefit that employers are required to continue providing to
employees on FMLA leave is group health insurance. If employees have chosen cash
payments in lieu of group health benefits, employers need not maintain those
The obligation to continue the absent employees’ health coverage ceases if/when
employees tell employers that they do not intend to return to work when the leave
period ends or if they do not return to work at that time. For those employers who
require employee contributions toward health insurance, the employers’ obligation
also stops if employees are more than 30 days late in paying their share of the
premium and if employers have given them 15 days’ advance written notice
informing them of the impending cessation of coverage.
Other kinds of benefits (e.g., paid leave and seniority) do not accrue while
employees are on unpaid FMLA leave, if these benefits do not accumulate for
individuals while they are on other types of unpaid leave. Although FMLA leave is
not considered a break in service under an employer’s retirement plan, the leave time
does not count toward the plan’s eligibility or vesting requirement.
Employers are required to keep records in accordance with the Fair Labor
Standards Act and with the FMLA’s regulations. Unless the DOL believes a
violation has occurred or it is investigating a complaint, the Department cannot
require an employer to submit records more than once over a 12-month period.
Covered employers with eligible employees must maintain certain information,
in no particular form, for at least 3 years. The information includes basic payrolling
records (e.g., the employee’s name and other identifying information, compensation,
and hours worked); dates of FMLA leave; hours of leave if taken in increments of
less than 1 workday; copies of employee notices of leave submitted to the employer;
copies of employer notices given to employees; any documents describing benefits,
policies, or practices concerning the taking of paid and unpaid leaves; and records of
any disputes between an employee and the employer regarding designation of leave
under the Act.
It is unlawful for employers to interfere with employees exercising their rights
under the statute. Further, employers cannot retaliate or discriminate against
employees based on their FMLA usage when making decisions regarding such things
as hiring, promotion, discipline, or termination.
For all private, state, and local government employees and for some federal
employees, the Wage and Hour Division in the DOL’s Employment Standards
Administration administers and enforces P.L. 103-3. It operates a nationwide tollfree referral service (1-866-487-9243).
If, after investigating complaints, the Wage and Hour Division cannot resolve
the matter to its satisfaction, the DOL’s Office of the Solicitor may seek to compel
compliance through the courts. Employees also may bring a private civil action if
they believe there has been a violation of the Act; they do not have to file a complaint
with the government before filing suit. If an employer violates the FMLA, the
employee may recover such things as wages, benefits, other lost compensation, and
liquidated (not punitive) damages in the case of willful violations. (See Appendix
In the case of the Congress and some congressional agencies (e.g.,
Congressional Budget Office), the Office of Compliance handles FMLA
enforcement. Some other legislative branch agencies (e.g., General Accounting
Office (GAO) and the Library of Congress (LOC)) handle FMLA enforcement
See Board of Directors of the Office of Compliance, Review and Report on the
Applicability to the Legislative Branch of Federal Laws Relating to Terms and Conditions
of Employment and Access to Public Services and Public Accommodations, Appendix III,
Dec. 31, 1998.
The Office of Personnel Management issues the FMLA regulations applicable
to federal employees. Employees in the executive branch — unlike those at private
firms, the GAO, and the LOC for example — are not entitled to sue for alleged
violations of the FMLA. Executive branch employees can only obtain appellate
judicial review of Merit Systems Protection Board decisions in the federal circuit.
The FMLA has a 2-year statute of limitations that starts from the last date of a
violation. The statute of limitations is extended 1 year for willful violations.
Experience Under the Act
P.L. 103-3 established the Commission on Leave, which sponsored surveys of
employees and employers covering an 18-month period in 1994 and 1995, to assess
the impact of family/medical leave policies. In January 2001, the DOL released
Balancing the Needs of Families and Employers: Family and Medical Leave
Surveys, 2000 Update. It is derived from surveys of employees and employers
covering an 18-month period in 1999 and 2000. The information that follows is
drawn from this report, unless otherwise indicated.
It should be noted that various business groups raised objections and suggested
changes to the survey. They believed it was meant, in part, to elicit support for the
Clinton Administration’s desire to broaden the Act (e.g., by minimizing the negative
consequences of the law for employers and for the co-workers of FMLA leavetakers).
Employer Coverage and Employee Eligibility
According to the employer survey, the FMLA applied to 10.8% of private sector
establishments in 1999-2000.15 Yet at the same time, 58.3% of employees who
worked at private sector employers were covered by the Act. These disparate
proportions reflect the fact that most worksites in the private sector are relatively
small and therefore exempt from P.L. 103-3, but most people are employed by
relatively large firms.
According to the employee survey, which covered both public and private sector
workers, 88.9 million persons worked at covered establishments and met the FMLA’s
eligibility criteria in 1999-2000. Covered, eligible workers accounted for 61.7% of
all employed persons in the United States. An additional 21.5 million individuals (or
14.9% of all employees) worked at covered employers but did not fulfill the Act’s
length-of-service and hours-of-work eligibility requirements. Thus, almost one in
five employees at covered worksites were ineligible to utilize the FMLA during the
latest survey period. Another 33.6 million people (or 23.3% of all employees) did
not work at covered establishments.
The actual unit surveyed was an establishment (i.e., a worksite) rather than an employer.
These words will be used interchangeably in this report.
Knowledge of the FMLA
Almost 60% of employees — regardless of whether they worked at covered or
non-covered employers — reported that they were aware of the FMLA’s existence
in 1999-2000. About one-half of employees at all worksites said they did not know
if the law applied to them personally, however. Employees at covered establishments
were significantly more likely than those at non-covered establishment to know their
correct status under the statute. Nonetheless, just 37.9% of employees at covered
employers correctly knew that the FMLA applied to them.
Far more covered establishments (84.0%) than employees correctly knew that
the law applied to them. Non-covered establishments showed greater confusion
about their status, however, with 55.5% reporting that they did not know whether the
Act applied to them.
Although employers stated that they most often got their information about the
FMLA from “existing company policies or practices” (89.4%), the number that also
obtained information from the Labor Department increased significantly between the
1994-1995 (53.9%) and 1999-2000 (83.1%) survey periods. The third most often
cited source of FMLA information, which also posted a significant increase over the
5-year period (from 57.0% to 77.9%), was attorneys or consultants.
Use of FMLA Leave
Use of the FMLA increased substantially over time. According to the employee
surveys, 18.3% of all eligible persons at covered worksites who took leave for FMLA
reasons in 1999-2000 did so under the Act.16 This was significantly above the 11.6%
recorded for 1994-1995. As shown in Table 1, those who exercised their FMLA
entitlement during the latest survey period also accounted for a significantly larger
share of all leave-takers and of all employees.
The rate of leave-taking under P.L. 103-3 also increased significantly over time
according to the employer surveys.17 In 1994-1995, there were 3.6 FMLA leavetakers per 100 covered employees; in 1999-2000, the figure was a substantially
higher 6.5 FMLA leave-takers per 100 covered employees.
The absolute number of employees who took leave under the Act in 1999-2000
was much higher according to the employer survey (4.6-6.1 million employees) than
Leave-takers in the employee survey who said that they had heard of the Act were asked
whether their longest leave was taken under the FMLA. Much of the information presented
from the two rounds of employee surveys concerns the longest leave taken (if more than one
leave was taken) because respondents were not asked about multiple leaves in the initial
Establishments that stated they were covered by the FMLA were asked the number of
employees who had taken leave under the Act.
according to the employee survey (2.2-3.3 million employees).18 Some of this
discrepancy could be because employees were unaware that employers counted their
leave toward their FMLA entitlement, or because employers counted employees who
took leave under the FMLA multiple times.
Table 1. Employees Taking Their Longest Leave
Under the FMLA
Employees taking their longest leave
under the FMLA, as a percent of:
All eligible, covered leave-takers
Source: DOL, Balancing the Needs of Families and Employers: Family and Medical Leave Surveys,
2000 Update, Washington, D.C., January 2001.
Leave-takers are individuals, regardless of their status under the FMLA, who took leave during the
survey period for FMLA-reasons.
Intermittent Leave. Although P.L. 103-3 allows persons who need
family/medical leave to take it for short periods of time so long as it does not exceed
12 workweeks in a 12-month period, the great majority of FMLA leave is not taken
intermittently. According to both the employee and employer surveys, about 20% of
FMLA leaves were taken intermittently in the latest survey period.
Reasons for Using FMLA Leave. As shown in Table 2, employees said
attending to their own health was the predominant reason for taking leave under the
FMLA in both survey periods. Caring for a newborn, newly adopted, or newly
placed foster child was the second most common reason.
Returning to Work After FMLA Leave. Virtually all FMLA leave-takers
said they resumed working for their same employer (about 98.0% in both survey
periods). The establishment survey yielded much different results, however, with
29.8% of covered worksites reporting non-returning FMLA leave-takers in 19992000 for example. While 52.6% of those employers with non-returning FMLA
leave-takers said only one person did not come back to work, those with two or more
non-returning leave-takers increased significantly between the survey rounds (from
14.6% to 47.4%).
Under certain circumstances, the law permits employers that have maintained
the health benefits of employees on FMLA leave to ask non-returnees to repay
The results of the establishment survey were adjusted to take into account public as well
as private worksites.
costs.19 More than 13% of employers with non-returnees tried to recover health
insurance costs and about 46% said they were successful in their efforts. (The issue
of the cost of P.L. 103-3 to employers is addressed later in this section.)
Table 2. Reasons for Longest Leave Taken Under the FMLA
Percent of leave-takers under the FMLA
Reason for longest leave
Care of a newborn, newly adopted,
or newly placed foster child
Care of ill child
Care for ill spouse
Care of ill parent
Source: DOL. Balancing the Needs of Families and Employers: Family and Medical Leave
Surveys, 2000 Update. Washington, D.C., January 2001.
Note: A “—” indicates less than 10 unweighted cases and accounts for figures not totaling 100%.
Impact on Employees
Not surprisingly, many of the 23.8 million individuals who took leave for
FMLA reasons in 1999-2000 — whether or not they were eligible, covered
employees — felt the experience was positive. Sizeable majorities of these leavetakers thought the time away from work had a positive impact on their ability to care
for family members (78.7%), on their own or a family member’s emotional wellbeing (70.1%), and on their own or a family member’s physical health (63.0%).20 In
addition, most of these leave-takers (72.6%) were very/somewhat satisfied with the
length of their longest absence.21
More than 9 out of 10 persons who took leave for FMLA reasons were able to
maintain their benefits (e.g., health, life, and disability insurance; pension
Employers cannot seek repayment if the employee does not return to work because of
continuation of the same health condition that precipitated the FMLA leave or because of
circumstances beyond the employee’s control.
Of those leave-takers who thought the leave had a positive effect on their own or a family
member’s physical health, 93.5% reported that they felt the time-off made it easier for them
to comply with a doctor’s instructions and 83.7% that it led to a quicker recovery time. A
substantial minority (32.0%) said the leave delayed or avoided the need to enter a long-term
The median length of the longest leave taken was 10 days.
contributions; and vacation or sick time). In addition, about two-thirds of leavetakers said they received some pay during their time off, and 42.9% of paid leavetakers had money coming in from multiple sources.22 Most paid leave-takers (72.2%)
received their full paychecks for the whole leave period, but 58.2% of the leavetakers who received no or partial pay reported difficulty making ends meet.23 And,
virtually all leave-takers who returned to their same employers went back to the
same or an equivalent position (97.1%).
Among individuals whose co-workers had taken leave for FMLA reasons,
46.2% indicated that they assumed additional duties, 32.1% worked more than their
usual number of hours, and 22.9% worked a different shift. Nevertheless, a majority
(67.4%) said that their co-worker’s leave for FMLA reasons did not have any impact
on them. This question touches on the idea of “work-family backlash” (i.e., young,
unmarried, or childless employees who resent or are demoralized by co-workers for
taking leave because they are asked to perform extra work to compensate for the
leave-takers’ absence). It is raised again in the policy issues section of this report
when the subject of intermittent leave is taken up.
Employer Compliance with P.L. 103-3
Employers indicated that they most often conveyed information about the Act
through postings on bulletin boards (92.4%) or through employee handbooks
(91.9%). The law requires covered employers to notify their workforce by these two
means. Fewer employees at covered establishments (55.8%) reported that their
employers had posted notices about the statute.
Under the statute, covered employers may require employees to provide
documentation if they need leave for a serious health condition. Virtually all
establishments (92.0%) did so for employees who took leave under the FMLA in
1999-2000. Employers also may require employees to use their accrued paid leave
rather than unpaid FMLA leave. A majority of covered employers (63.2%) said they
followed this practice. Covered employers also are supposed to provide employees
with written notice of how much FMLA leave they have taken and how the law
relates to pre-existing leave and benefit policies. Most establishments said they
complied, with 82.3% providing the former and 92.6% providing the latter.
Despite employers presumably having gained greater familiarity with the 1993
law and its 1995 final regulations, they appear to continue to have difficulty
complying with it. The Society for Human Resource Management (SHRM), in its
2000 FMLA Survey, declared that the Act “stands in contrast with other employment
laws which have caused less confusion over the years as the law becomes settled and
Sick leave was the source of pay most commonly reported by leave-takers (61.4%),
followed by vacation leave (39.4%) and personal leave (25.7%).
Of the 23.8 million leave-takers who were away from work for FMLA-reasons in 19992000, 8.2 million (or 34.5%) received no pay and 4.4 million (or 18.5%) received partial
pay. Those leave-takers with no or partial pay frequently coped with their loss of wages by
limiting extras, using savings earmarked for this or another situation, putting off paying
bills, or cutting leave time short.
more understood by both employers and employees.” In the first full fiscal year
following the FMLA’s implementation, the Wage and Hour Division found
violations in 61.6% of the complaints lodged by employees. The ratio of violations
to total complaints has varied little over the ensuing years, and in FY1999 stood at
Complaints lodged under the law have most often involved an employer’s
failure to reinstate an employee returning from FMLA leave to the same or an
equivalent position (46% of the complaints filed, on average, since the Act’s
implementation). Another 22% dealt with an employer’s refusal to grant leave, and
an additional 16% were related to employer discrimination against employees who
took leave under the Act. (See Appendix Table 1.)
According to the DOL’s summary of litigation, the Department’s Solicitor
brought suit in 32 cases through FY1999 for unresolved FMLA violations.24 The
court cases most often concerned an employer who had terminated an employee
while they were on FMLA leave. Other cases dealt with employers who failed to
restore returning employees to their same or an equivalent position and with
employers who denied requests for FMLA leave.
Employer Administration of the FMLA
In 1999-2000, employers most often (98.3%) handled the work of FMLA leavetakers by temporarily assigning it to other employees.25 Hiring an outside temporary
replacement came in a distant second at 41.3%. The use of this option as well as
hiring a permanent replacement fell significantly since 1994-1995, possibly due to
the tightening of the labor market between survey periods.
In terms of the ease or difficulty of administering the Act, employer responses
varied widely. At one end of the spectrum, 86.0% of employers said they found it
very/somewhat easy to determine whether the law applied to their organization and
83.4% found it very/somewhat easy to determine whether certain employees were
eligible. At the other end of the spectrum, 54.4% of employers replied that they
found it very/somewhat difficult to administer the FMLA’s notification, designation,
and certification requirements and 52.8% found it very/somewhat difficult to
coordinate the FMLA with other federal laws. On an overall basis, a majority of
employers (63.6%) rated the Act as very/somewhat easy to administer, but the
proportion dropped significantly from its 1995 level (85.1%). This finding could be
related to the need for more employers to become familiar with the law and its
regulations because, as previously discussed, the rate of FMLA leave-taking
increased significantly over the 5-year period.
The Wage and Hour Division reported that it resolved 88% of all complaints filed from
August 1993 through FY1999.
This also was the most frequently used option among employers who said they relied on
more than one method to cope with an employee’s absence.
Impact of the Benefit Mandate on Covered Employers
Several provisions were included in P.L. 103-3 to minimize its impact on
employers. Employers indicated they found the requirement that employees give
advance notice of foreseeable leave to be the most useful of these provisions,
followed by the requirement that employees provide written medical certification for
serious health conditions. The least useful provision intended to help employers
manage FMLA leave was allowing them to deny job restoration to key employees.
A large majority of employers said that the FMLA had no noticeable effect on
their establishment’s performance (i.e., 76.5% said it had no effect on productivity;
87.6%, on profitability; and 87.7%, on growth). In the relatively few instances that
employers thought the Act had any impact, they were much more likely to believe it
hurt rather than helped their bottom line: two to three times as many employers
reported a negative as opposed to positive effect on the three measures of business
Similarly, most employers reported that P.L. 103-3 did not have a perceptible
impact on the individual performance of employees (i.e., 67.0% said it had no effect
on productivity; 76.3%, on absences; 85.9%, on turnover; 95.6%, on career
advancement; and 64.7%, on morale). However, significantly more employers
reported in 2000 than in 1995 that the statute had a negative impact on individual
productivity and absences. According to the SHRM’s 2000 FMLA Survey, the
human resources (HR) professionals who responded indicated that productivity loss
was the most costly consequence of the FMLA. In addition, 63% of respondents said
that, because of the Act, their firms had had to keep some employees who otherwise
would have been terminated for poor attendance.
The opportunity to take FMLA leave intermittently has concerned employers
because it could be more disruptive to business operations and be more burdensome
from a record-keeping standpoint than if the leave entitlement were exercised just
once in a 12-month period. According to the DOL-commissioned establishment
survey, however, 81.2% of covered employers stated that intermittent leave did not
have any impact on productivity and 93.7% said that it did not affect profitability.
Another measure of the FMLA’s impact on covered employers is the costs it
imposes, such as those involved in administration, benefit continuation, and the
temporary replacement of leave-takers (e.g., hiring and training costs). Although a
majority of establishments said in response to the DOL-commissioned survey that
these costs had not changed since they became covered by the Act, a sizeable
minority reported higher FMLA-related expenses. (See Table 3.) Respondents to
the SHRM’s 2000 FMLA Survey indicated that after productivity losses, the next
costliest items associated with the law were the time and effort expended by HR staff
and the replacement of leave-takers. However, the majority of survey respondents
said that it was too difficult to quantify the overall cost of FMLA administration
(30%) or that they had not done so (66%).
Table 3. Changes in Selected Costs Since Coverage Under the
FMLA Began, by Establishment Size
Percent of covered establishments with:
Type of employer
251 or more
Cost of continuing benefits during leave
Source: DOL. Balancing the Needs of Families and Employers: Family and Medical Leave
Surveys, 2000 Update. Washington, D.C., January 2001.
Note: Figures may not total 100% due to rounding.
Appendix Table 1. Compliance Activity Under the FMLA
Total number of
Type of compliance action
Nature of employee complaints
Refusal to grant FMLA
Refusal to restore to same
or equivalent position
Status of compliance
No violations, total
Employer not covered
Employee not eligible
Complaint not valid
Grand total, employees
Monetary damages (in
Source: U.S. Department of Labor.
The FMLA was in effect only from August 5, 1993 through September 30, 1993 in FY1993.
Since FY1998, only the primary complaint that an employee files is reported.
Includes cases terminated before completion generally at the complainant’s request.
Through FY1999, 88% of the grand total of cases were successfully resolved and the remainder were reviewed for potential litigation. The DOL
filed 32 court cases, of which four are pending, and a friend-of-the-court brief in six cases, of which none are pending.