Wage and Hour Division (WHD)

Printer-Friendly Version

Chapet 3

Use of the FMLA

The previous chapter provided an overview of employees who took leave for a family or medical reason. To take such a leave under the Family and Medical Leave Act (FMLA), an employee must not only take leave for a FMLA-qualifying reason, but must also work for a covered employer and meet certain eligibility requirements.

Private sector establishments are covered by the Act if they employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year at one or more worksites within 75 miles (15). An employee is eligible if he or she: works for a covered employer; has worked for that employer for at least 12 months; has worked for at least 1,250 hours over the 12 months before leave is needed; and works at a location with 50 or more employees within 75 miles.

This chapter provides an overview of:

• Establishments covered by the FMLA and their employees;
• Employees who are eligible for FMLA leave;
• Leave-takers who are eligible for FMLA;
• Establishment and employee awareness of the FMLA; and
• Use of leave under the Act.

Differences between groups (including the 1995 and 2000 surveys) were analyzed for statistical significance by means of either chi-square tests or z-tests. These tests were computed taking into account the specific sample design and weighting of the data. An observed difference has been deemed "significant" if there is less than a 10 percent chance that the difference occurred by chance, given that the null hypothesis of "no difference" is true (i.e., p<.10). Furthermore, for all significant differences it is noted whether the significance is at the 10 percent level (p<.10) or the 5 percent level (p<.05).

3.1 Coverage of Establishments and Employees Under the FMLA

This section describes the number, proportion, and characteristics of U.S. establishments that are covered by the FMLA. It also details the number and demographic characteristics of employees who work for these establishments. For purposes of analysis in both the establishment and employee surveys, an establishment was considered an FMLA-covered establishment if, at the time of the survey, it had at least 50 or more employees working at locations within 75 miles. In the establishment survey, multi-establishment employers with 50 or more employees beyond 75 miles (but less than 50 within 75 miles) were not counted as covered, while some employers with a large number of seasonal employees may also have been classified as being non-covered. Thus, the number of covered employers is likely under-estimated by the 2000 Survey of Establishments.

Respondents from the employee survey were categorized as eligible for FMLA leave if they worked for an employer that was classified as covered, had worked for that covered employer for the past year, and had worked at least 1,250 hours for the covered employer in the past year.

Table 3.1 displays estimates of the distribution of private sector establishments and their employees by coverage status for 1995 and 2000, based on the establishment surveys. In 2000, a large majority of the private establishments in the U.S. are not covered under the FMLA (89.2%), but over half of U.S. employees work in covered establishments (58.3%). This is consistent with the fact that the vast majority of establishments are of relatively small size and the fact that more employees work for large establishments. Approximately the same proportion of employees was working in covered establishments in 1995 and 2000.

Table 3.1. Coverage of Establishments and Employees Under the Family
and Medical Leave Act: 1995 and 2000 Surveys

Note: Column percents may not total to 100% due to rounding.
Source: 1995 and 2000 Survey of Establishments.

Text Version

As was true in 1995, less than half of the establishments surveyed in 2000 have 50 employees at the surveyed worksite (44.2%; see Table 3.2). Slightly over half of the covered private sector employees, however, are found at smaller worksites.

In 2000, covered establishments are distributed across all economic sectors (Table 3.2). About half are in the Retail (19.6%) or Service (29.1%) sectors. The remaining covered establishments are in either Manufacturing (13.0%) or other sectors (38.2%). Changes in the distribution across industry groups between 1995 and 2000 were not statistically significant.

Table 3.2. Characteristics of FMLA-Covered Establishments: 1995 and 2000 Surveys

Note: Column percents may not total to 100% due to rounding.
Source: 1995 and 2000 Survey of Establishments.

Text Version

3.2 Employees Eligible for Leave Under the FMLA

As discussed in the previous section, employees must work for a covered establishment for at least 1,250 hours over the previous 12 month period in order to be eligible to take FMLA leave. This section presents estimates of the number of eligible employees and describes the demographic characteristics of these employees.

3.2.1 Estimates of the Number of Eligible Employees

From the employee survey it is estimated that between 83 million and 94 million employees in the U.S. work in covered establishments and have met the eligibility criteria of the FMLA (16). An estimated 18.5 to 24.4 million work for covered establishments but are not eligible to take FMLA leave (17). Further, an estimated 30 to 37 million are not covered (18). Appendix Table A2-3.1 displays the proportion of all employees that work for covered establishments, while Appendix Table A2-3.2 displays the proportion of covered employees who are eligible to take FMLA leave.

3.2.2 Characteristics of Eligible Employees

Employees who are covered and eligible for FMLA leave differ from their non-eligible counterparts in several ways (Appendix Table A2-3.3). These differences include:

• Age. Over 40 percent of covered and eligible employees are age 35-49 (42.8%). Covered and eligible employees are significantly more likely to be between the ages of 25 and 64, and less likely to be younger than 25 or older than 64, compared to all other (i.e., non-covered or non-eligible) employees.
• Race/Ethnicity. About three-quarters of covered and eligible employees (75.3%) identify themselves as White non-Hispanic; 11.1 percent identify as Black non-Hispanic, 7.7 percent as Hispanic, and 3.3 percent as Asian. Compared to all other employees, however, covered and eligible employees are significantly more likely to identify as Black non-Hispanic, Hispanic, or Asian.
• Marital Status. Nearly 70 percent (69.5%) of covered and eligible employees are married or living with a partner; an additional 11.0 percent are separated, divorced, or widowed. Covered and eligible employees are somewhat less likely than other employees to be never married (19.5%).
• Education. Nearly all (96.3%) covered and eligible employees have at least a high school education. Compared to other employees, covered and eligible workers are significantly less likely to have less than a high school education, and significantly more likely to have graduated from college (27.0%) or to have attended graduate school (13.2%).
• Annual Family Income. Consistent with being married and having more education, covered and eligible employees have significantly more annual family income than do other employees.
• Compensation Type. Roughly half (50.3%) of covered and eligible employees are hourly workers; significantly more (42.7%) are salaried workers, compared to other employees.

Covered and eligible employees did not differ significantly from other employees in terms of gender or the presence of children under 18 in the household.

3.3 Coverage and Eligibility of Leave-Takers

The previous section provided estimates and characteristics of employees who were covered and eligible to take leave under the FMLA. In this section, similar estimates are provided for leave-takers who were covered and eligible to take leave under the FMLA. These individuals worked for a covered establishment, had worked the number of hours specified by the Act to be eligible and had taken a leave for a covered reason. Note that the leave-takers discussed in this section did not necessarily take leave under the FMLA. Those that actually took leave under the FMLA are discussed in the last section of this chapter.

From January 1, 1999 to the end of the survey period, between 14 and 16.4 million covered and eligible employees took leave (19). This is a significant increase compared to 1995 which found between 11.6 and 13.6 million took leave in the 18-month period before the 1995 survey (20). The rate at which leave was taken by covered and eligible employees, however, did not change significantly. In 1995, 18.0 percent of covered and eligible employees took leave, while 17.1 percent took leave in 2000.

Table 3.3 compares the demographic characteristics of covered and eligible leave-takers to those of all other (i.e., not covered or not eligible) leave-takers. These include:

• Age. Covered and eligible leave-takers are less likely to be in the youngest or oldest age groups, compared to other leave-takers, but the overall pattern of age distribution resembles that of all leave-takers.

• Race/Ethnicity. Covered and eligible leave-takers, compared to other leave-takers, are less likely to be White non-Hispanic (73.6% vs. 81.1%, respectively) or Hispanic (7.9% vs. 8.7%, respectively), and significantly more likely to be Black non-Hispanic (13.6% vs. 5.1%, respectively).

• Annual Family Income. Covered and eligible leave-takers are less likely to be in either the lower or upper income groups, compared to other leave-takers.

• Compensation Type. Covered and eligible leave-takers are more likely than other leave-takers to be salaried (39.1% vs. 31.5%) or hourly workers (55.1% vs. 53.3%).

Covered and eligible leave-takers did not differ significantly from other leave-takers in terms of gender, marital status, the presence of children under age 18 in the household, or educational attainment.

Appendix Table A2-3.5 displays a comparison of the demographic characteristics of covered and eligible leave-takers by reason for leave. Reasons for leave are associated with differences in marital status and education.

Covered and eligible leave-takers did not differ from other leave-takers in the length of their leave (Appendix Table A2-3.8).

Table 3.3. Demographic Characteristics of Leave-Takers by
Eligibility Status: 2000 Survey

** Difference between covered and eligible leave-takers and all other leave-takers is significant at p<.05.
-- Indicates less than 10 unweighted cases.
Source: 2000 Survey of Employees.

Text Version

3.4 Awareness of the FMLA

An important element of the FMLA is establishment and employee knowledge about the Act. The FMLA requires that covered employers provide employees with notification of their rights (e.g., posting Act provisions in the workplace; including provisions in employee handbooks and notices). In order for the FMLA to function well, both employers and employees must be aware of its provisions. This section discusses current level of awareness of the Act among employees and establishments, and compares awareness levels in 1995 and 2000.

3.4.1 Current Employee Awareness of the FMLA

To assess the level of awareness of the FMLA among employees, the 2000 Survey of Employees included two items. First, respondents were asked whether they had ever heard of the FMLA. Second, if they had heard of the Act, they were asked whether it applied to them personally.

As shown in Figure 3.1, slightly over half of employees reported having heard of the Act. The extent of knowledge, however, does not seem to vary by whether or not the employee works for a covered establishment. Almost equal proportions of employees working in covered establishments and non-covered establishments reported having heard of the FMLA (59.3% covered; 58.2% non-covered).

Figure 3.1. Proportion of Employees that Have Heard of
The FMLA: 2000 (Employee Survey)

Text Version

Among employees of both covered and non-covered establishments, approximately half reported they do not know if the Act applies to them (49.0% in covered establishments; 51.2% in non-covered ones) (Figure 3.2). Employees in covered establishments are slightly but significantly more likely to say that the Act applies to them; 37.9 percent reported that the FMLA applies to them, compared to 22.4 percent of employees of non-covered businesses (21). Similarly, a significantly smaller percentage of employees in covered establishments reported the Act does not apply to them, compared to employees in non-covered worksites.

Figure 3.2. Employee Report of Coverage Status by Actual Coverage Status:
2000 (Employee Survey)

Text Version

3.4.2 Current Establishment Awareness of the FMLA

The establishment survey included an item that asked whether the FMLA applied to the establishment’s location. A substantial majority of those classified as covered (84.0%) reported that they are subject to the FMLA (Appendix Table A2-3.9). Most of the remainder (15.0%) did not know whether the Act applies to them. Very few covered establishments (1.0%) reported that it does not apply.

Figure 3.3 compares the responses of covered and non-covered establishments. As one would expect, covered establishments have a much better idea of how the Act applies to their particular location. Non-covered establishments are much more uncertain about whether the Act applies to them. The majority (55.5%) do not know whether the FMLA applies to them, and 16.1 percent reported that the Act does apply (22). Only 28.4 percent reported that the Act does not apply to their establishment.

Figure 3.3. Establishment Report of Coverage Status by Actual Coverage Status:
2000 (Establishment Survey)

Text Version

3.4.3 Changes in Awareness of the FMLA Since 1995

Employees’ general awareness of the FMLA increased slightly and significantly between 1995 and 2000, but only among those working in non-covered establishments. More than half (58.2%) had heard of the Act in 2000, a significant increase over 1995, when only 50.2 percent reported having heard of the FMLA (See columns 3 and 4 of Table 3.4). Awareness among employees in covered establishments did not change significantly; 59.0 percent in 1995 and 59.3 percent in 2000 reported having heard of the law.

Table 3.4. Awareness of FMLA Among Covered and Non-covered Employees:
1995 and 2000 Surveys

* Difference between 1995 and 2000 is significant at p<.10.
Source: 1995 and 2000 Survey of Employees.

Text Version

The proportion of all workers reporting that the Act applies to them personally increased slightly between 1995 and 2000 (22.7% vs. 34.3%) (Appendix Table A2-3.10). This includes significantly more employees of covered establishments reporting that the Act applies to them (37.9% in 2000 vs. 29.0% in 1995) as well as significantly more employees of non-covered establishments (22.4% in 2000 vs. 10.4% in 1995). Employees in general are more aware of the Act. However, this increase does not seem to come from those employees who, by the survey measures, are actually covered by the Act.

Establishment awareness of their FMLA coverage status did not change significantly, compared to 1995. In 2000, 84.0 percent of covered establishments reported that the Act applies to their organization, compared to 86.5 percent in 1995 (Figure 3.4). Among non-covered establishments (Figure 3.5), the proportion that that does not know whether the Act applies to them remained approximately the same (56.5% in 1995, and 55.5% in 2000). The proportion of non-covered establishments that believe the Act does apply to their location increased slightly (see Figure 3.5).

Figure 3.4. Covered Establishment Reported FMLA Coverage Status:
1995 and 2000 (Establishment Survey)

Text Version

Figure 3.5. Non-covered Establishment Reported FMLA Coverage Status:
1995 and 2000 (Establishment Survey)

Text Version

3.5 Use of Leave Under the FMLA

This section discusses the use of FMLA leave since January 1, 1999. First, it presents estimates of the number of employees taking leave under the FMLA, based on both the 2000 Survey of Employees and the 2000 Survey of Establishments, including the proportion that used FMLA leave intermittently. Second, it describes the reasons employees took leave under the FMLA. Third, it estimates the percent of leave-takers who did and did not return to work after leave.

3.5.1 Estimates of the Number of Employees Taking FMLA Leave

The 2000 Surveys of Employees and Establishments provide two methods to estimate the extent to which employees take leave under the FMLA. During the employee survey, leave-takers who had heard of the Act were asked whether their longest leave was taken under the FMLA. In the Survey of Establishments, those that reported being covered by the FMLA were asked the number of employees who had taken leave under the Act since January 1, 1999.

Estimates Based on the Employee Survey. Table 3.5 provides estimates for the percent of employees, percent of all leave-takers and the percent of covered and eligible leave-takers who reported taking leave under FMLA. For purposes of this estimate, employees were counted as FMLA leave-takers if they were working in a covered establishment, were classified as being eligible to take the leave, and reported taking FMLA leave for their longest leave. These data indicate that approximately 18.3 percent of covered and eligible leave-takers took leave under the Act since January 1, 1999. This translates to between 2.2 and 3.3 million people (data not shown) (23).

Table 3.5. Employees Taking Their Longest Leave Under FMLA:(1) 1995 and 2000 Surveys

(1) Estimate derived from employees who were covered and eligible at time of longest leave.
** Difference between 1995 and 2000 is significant at p<.05.
Source: 1995 and 2000 Survey of Employees.

Text Version

Compared to 1995, the proportion of covered and eligible leave-takers who took leave under the FMLA increased significantly. In 1995, 11.6 percent of the covered and eligible employees reported taking FMLA leave, while in 2000, 18.3 percent of covered and eligible employees reported taking FMLA leave.

Estimates Based on the Survey of Establishments. Compared to the estimates from the employee survey, the estimates from the establishment survey indicate a larger number of persons took leave under the FMLA since January 1, 1999. Table 3.6 presents these data as a ratio of the number of employees taking the leave since January 1, 1999 to the total number of employees in covered establishments. This ratio is 6.5 from the 2000 survey. Using these data, it is estimated that between 4.6 million to 6.1 million took advantage of the FMLA since January 1, 1999 (24). Taking FMLA leave is apparently more frequent in larger establishments (8.9 leave-takers per 100 employees) than in smaller establishments (5.5 leave-takers per 100 employees). FMLA leave is also more likely to be taken in manufacturing establishments compared to other industries. Since manufacturing establishments tend to be larger ones, this is not surprising given the higher ratio of leave-taking among larger establishments (25).

Table 3.6. Establishment Size and Industry Differences in Ratio of FMLA Leave-Takers:(1)
1995 and 2000 Surveys

(1) Per 100 employees.
** Difference between 1995 and 2000 is significant at p<.05.
Source: 1995 and 2000 Survey of Establishments.

Text Version

Compared to 1995, the rate of taking leave under FMLA has almost doubled, from 3.6 per hundred covered employees in 1995 to 6.5 in 2000. The increase in use of FMLA since 1995 does not seem to be due to an increase in awareness of the law. As seen in the previous section, neither the knowledge of establishments about the law, nor the extent that employees had heard of the law has changed as dramatically as usage.

Intermittent Leave. Intermittent leave is used when the employee needs to take time off repeatedly for short periods of time. Examples of these kinds of needs include receiving ongoing treatments (e.g., chemotherapy) or providing ongoing care for an immediate family member. The 12 weeks of leave allotted under the FMLA can be taken in small increments intermittently. According to the employee survey, approximately 19.1 percent of the leave taken under the FMLA is intermittent (Table 3.7) (26).

The establishment survey also provides an estimate of the proportion of FMLA leaves that were taken on an intermittent basis. These results estimate about 20 percent of FMLA leaves were taken intermittently (data not shown).

Table 3.7. Intermittent Use of Longest Leave Taken Under FMLA:(1) 2000 Survey

(1) Estimate derived from employees who were covered and eligible at time of longest leave.
Source: 2000 Survey of Employees.

Text Version

3.5.2 Reasons for Taking Leave Under the FMLA

The reasons for which leave was taken under FMLA are shown in Table 3.8 for 1995 and 2000. The most common reason for taking FMLA leave was the employee’s own health (37.8%). The next most common reason was the care for a newborn, newly adopted or placed foster child (24.4%). Taking leave to care for an ill child (13.5%), for maternity-related reasons (10.9%), and to care for an ill parent (10.6%) were the next most common reasons; caring for an ill spouse was the least common reason.

Between 1995 and 2000, the reasons for taking FMLA leave did not change significantly (Table 3.8).

Table 3.8. Reasons for Longest Leave Taken Under FMLA:(1)
1995 and 2000 Surveys

(1) Estimate derived from employees who were covered and eligible at time of longest leave.
-- Indicates less than 10 unweighted cases.
Source: 1995 and 2000 Survey of Employees.

Text Version

Since the FMLA was enacted in 1993, there has been some concern expressed that perhaps many employees would abuse the rights granted under the Act by using leave for something other than serious health conditions. The 2000 Survey of Employees asked leave-takers who used leave for health-related reasons (excluding disability due to pregnancy) if the condition required a doctor’s care or overnight hospital stay. It is worth noting that 99.1 percent of leave-takers who took leave under FMLA to address their own or a family member’s serious health condition reported that the condition required a doctors’ care. Furthermore, 67.0 percent indicated that they (or their family member) were in the hospital overnight. When asked to give the health condition, responses included heart attack, cancer, depression, and a variety of surgeries.

3.5.3 Returning to Work After FMLA Leave

Two central benefits of taking leave under the FMLA are the continuation of health care benefits during leave and the guarantee of the same or equivalent job upon return to work after leave. Employers fear that after taking FMLA leave an employee might decide not to return to work. If this happens, the employer has held open a job and covered the cost of continued health benefits without any real return on this investment. To better understand whether and how often this happens, FMLA leave-takers were asked whether they had returned to work for the same employer after taking leave. As seen in Table 3.9, almost all employees who took leave under the FMLA did return to work for the same employer (98.0%). This percentage has not changed significantly since 1995, when 97.8 percent of FMLA leave-takers reported that they returned to work for the same employer.

Table 3.9. Employees Choosing Not to Return to Work After Taking
Longest Leave Under FMLA: 1995 and 2000 Surveys

(1) Estimate derived from employees who were covered and eligible at time of longest leave. Includes employees who went to work for another employer as well as those who chose to not return to work at all.
-- Indicates less than 10 unweighted cases.
Source: 1995 and 2000 Survey of Employees.

Text Version

3.6 Summary

This chapter has described the extent to which establishments are covered by the FMLA, employees are eligible for FMLA leave, and both are aware of its provisions. A little more than 10 percent of U.S. establishments and slightly over half of all employees are covered under the Act. This rate has not changed substantially since 1995. Employees who are covered and eligible are likely to be between 25 and 64 years of age, of White non-Hispanic ethnicity, married, with at least a high school education, and with significantly higher annual family income, compared to employees who are not covered or eligible for FMLA leave.

The number of covered and eligible persons expressly taking leave under the FMLA increased significantly since 1995. The estimate of the number of people using it during the 18-month period ranges from 2.2 million to 6.1 million. Estimates from the two surveys indicate almost a doubling of the level of use among employees. This increase does not seem to be related to increased awareness on the part of the employee or increased knowledge on the part of the establishment.

(15) All public agencies are covered by the FMLA regardless of size. The Survey of Establishments included only private sector establishments. The Survey of Employees included employees from both the private and public sector.

(16) This may be an over-estimate of those covered and eligible. See Appendix C (Section 1.6.3) for more details. The range reflects a 95 percent confidence interval centered around a point estimate of 88.9 million.

(17) This may be an overestimate of those covered but not eligible. See Appendix C for more details. The range reflects a 95 percent confidence interval centered around a point estimate of 21.4 million

(18) This may be an underestimate of those not covered. See Appendix C for more details. The range reflects a 95 percent confidence interval around a point estimate of 21.5 million.

(19) This may be an overestimate. See Appendix C (Section 1.6.3) for more details. The range reflects a 95 percent confidence interval around a point estimate of 15.2 million. The point estimate for 1995 was 12.6 million.

(20) The estimate of the amount of change between 1995 and 2000 may be too high since the two surveys did not use identical survey items to categorize establishments into the covered and non-covered categories. See Appendix C (section 1.6.3) for more details.

(21) Bear in mind that some covered employees likely are mis-classified as not covered, due to the way the analysis measured coverage.

(22) As noted in the introduction, multi-establishment employers with 50 or more employees beyond 75 miles, but less than 50 within 75 miles, were not counted as covered in the survey. Some portion of the 16.1 percent shown in Figure 3.3 are likely these multi-unit businesses who are in fact covered under the law.

(23) The range reflects a 95 percent confidence interval around a point estimate of 2.7 million.

(24) This estimate was computed by adding the total number of covered employees in private businesses from the 2000 Establishment Survey to an estimate of the total number of government employees from the Department of Labor. This provides the total number of covered employees in the U.S. from the establishment survey. This estimate was then multiplied by the ratio of 6.5 (see Table 3.6) to estimate the total number of persons taking leave under FMLA (5.3 million). The range reported in the text reflects a 95 percent confidence interval around this point estimate.

(25) One possible reason the estimate based on establishments may be higher than the estimate from the employee survey is that the establishments may double count persons that took more than one FMLA leave. It may also be due to different types of error related to each source. Employees may not be aware their leave was counted under the FMLA. Employers may have difficulties retrieving information from their records. Approximately 45 percent of covered establishments could not provide these data when asked on the survey. The estimates reported above exclude those establishments that could not provide these data.

(26) Comparison to the 1995 survey is not possible because it did not include a comparable question about intermittent leave.