The Family and Medical Leave Act (FMLA) provides workers with twelve weeks of unpaid, job-protected leave to care for their own serious illness or injury or that of a close family member. However, the FMLA has strict eligibility guidelines that make this leave inaccessible to many of America’s rural workers. The ability to take time off work without financial or career consequences is critical to a worker’s socioeconomic stability, and the burden of the lack of guaranteed leave often falls squarely on the shoulders of rural workers caring for their own medical needs or those of their loved ones. Rural workers are particularly disadvantaged when it comes to accessing protections under the FMLA due to the requirement that an employer must have fifty or more employees within a seventy-five mile radius to qualify for FMLA leave. The geographic dispersion and scarcity of population centers in rural areas make this requirement extremely difficult to meet. Those who work in the small businesses that predominate in rural communities are excluded from FMLA protections. Rural workers may be forced to work while sick or injured or leave loved ones without care. If a worker takes leave, he or she may not get his or her job back when he or she returns. The first part of this essay describes the legislative history of the FMLA and discusses how broad political compromise led to restrictive eligibility requirements that exclude many rural workers. The next part discusses the Department of Labor’s regulations for the FMLA and an example of a case that worked to further hinder rural access to the FMLA. The third part provides a profile of rural workers and explains how they are uniquely positioned to benefit from access to FMLA leave, as well as how they, in turn, suffer from their lack of access. The final part will explore the impact that easing FMLA eligibility requirements will have on the rural workforce, and also compares state and federal family and medical leave eligibility requirements and what we can learn from these policies when considering family and medical leave on a national scale.

Capitulation in the Name of Compromise: The Legislative History of FMLA Employer Eligibility Requirements

The long legislative road to passage of the Family and Medical Leave Act of 19932 (FMLA) was fraught with compromises between political parties and their affiliated interest groups.3 Political compromise is an essential aspect of governance. As professors Amy Gutmann and Dennis Thompson write, “Governing a democracy without compromise is impossible. To restrict political agreement to common ground or common goods, especially in a polarized partisan environment, is to privilege the status quo, even when all parties agree that reform is necessary.”4 However, Gutmann and Thompson acknowledge that sacrifices are often made in the name of political compromise, as there is “an inevitable tension between seeing the need to compromise in order to achieve political progress and appreciating the loss of something valuable in agreeing to compromise.”5 Professor Mariken A.C.G. van der Velden further explains:

Political compromises can have a diluting effect: when a party compromises its principles, it downplays its ideological commitments, which can confuse its electorate. This compromise paradox poses a conundrum for political parties during coalition negotiations as they must navigate the tension between political representation and accountability.6

Something is inevitably lost when politicians capitulate on their policy goals in the name of bipartisan compromise. This is particularly the case with the legislative process that led to the passage of the FMLA. What began as legislation intended to benefit all American workers7 became a highly exclusionary policy built on arbitrary foundations. The interests of some of the workers who would benefit most from the protections afforded by the FMLA—rural workers—were pushed aside in the name of political compromise with those legislators who instead supported the interests of the business lobby.

The Long Journey to Family and Medical Leave Legislation

. Definition of “rural.” — First, a preliminary question: What constitutes a “rural” area? There are two predominant classification systems for defining rural or nonmetropolitan (nonmetro) areas. Economic Research Service researchers appear to treat the Office of Management and Budget (OMB) definition of nonmetropolitan areas (which are demarcated along county lines or county equivalents, such as a district or parish) as synonymous with “rural.”8 Previously, “OMB defined metropolitan (metro) areas as broad labor market areas that include”9:

  1. Core counties with one or more urbanized areas; urbanized areas…are densely populated urban entities with 50,000 or more people.
  2. Outlying counties that are economically tied to core counties, as measured by labor force commuting. Outlying counties are included if 25 percent of workers living in the county commute to the central counties, or if 25 percent of employment in the county consists of workers coming from the central counties…10

Nonmetropolitan counties include two types:

  1. Micropolitan (micro) areas, which are nonmetropolitan labor market areas centered on urban clusters of 10,000 to 49,999 people and defined using the same criteria used to define metropolitan areas.
  2. All remaining counties, often labeled “non-core” counties because they are not part of “core-based” metropolitan areas or microareas.11

Compared to the OMB definition of “non-metropolitan,” the U.S. Census Bureau’s definition of “rural” is much more precise, as it is based on “population size and density.”12 All areas not considered urban areas are rural areas.13 The Census Bureau has two categories of “urban areas”: urbanized areas, which contain at least 50,000 people, and urban clusters, which have at least 2,500 people but fewer than 50,000 residents.14 Thus, according to the Census Bureau’s definitions, “rural areas consist of open countryside with population densities less than 500 persons per square mile and places with fewer than 2,500 people per square mile.”15 people.”15

Policymakers and researchers often use varying definitions to identify areas as rural.16 This essay follows the Center for Rural Areas Innovation’s preference for the OMB definition of “nonmetropolitan” as the definition of “rural”: “When forced to choose between these two definitions, we believe that the definition of nonmetropolitan best describes places that share common characteristics, best represents the diversity of rural America, and reflects the critical social and economic dynamics of smaller economies that link open land areas and small towns.”17

Any use of the word “rural” in this essay should be generally interpreted according to the OMB definition (of “nonmetropolitan”), unless specifically stated otherwise. However, some sources use the Census Bureau definition or a combination of both definitions.

Early Efforts in the Quest for Familyand Medical Leave Legislation

An early draft of the soon-to-be-named FMLA was written in 1984. 18 Female participation in the workforce had grown exponentially over the preceding decades, and the number of single-parent households had increased sharply. 19 In the wake of Title VII of the Civil Rights Act of 196420 and the Pregnancy Discrimination Act of 1978,21 female and pregnant workers were protected from workplace discrimination, but pregnant workers were entitled to benefits such as medical leave only if their employer provided similar benefits to other employees as well. 22 Anti-discrimination statutes did not go so far as to “impose . . . 23 Following the passage of these laws, there were efforts across the country to introduce or improve policies designed to protect and accommodate women in the workplace. 24

These efforts suffered a particularly hard blow in 1984, however, “when a federal district court struck down California’s maternity leave law on the grounds of discrimination.” 25 The opinion stated that the maternity leave law “required preferential treatment for women disabled by pregnancy, childbirth, or related medical conditions.”26 The California law required employers to “provide reasonable disability leave of up to four months to employees disabled by pregnancy, childbirth, or related medical conditions.”27 The law further mandated that employers reinstate workers returning from pregnancy or other medical leave to their same or similar position.28 The court found that Title VII preempted the California law since employers were not required to provide this type of leave and right to reinstatement to male employees.29

In response to this setback, a coalition was formed “to advocate for the establishment of comprehensive, gender-neutral family and medical leave at the national level”; The group included representatives from California (one from the federal level and one from the state level), the National Women’s Law Center, Georgetown University Law Center, and the Women’s Legal Defense Fund.30 This coalition helped produce the first draft of the FMLA, then titled the Parental and Disability Leave Act of 198531 (PDLA), which was introduced in the House of Representatives on April 4, 1985.32 This nascent version of the FMLA was intended to apply to employers regardless of size, broadly defining “employer” as “any person engaged in commerce or any industry or activity affecting commerce acting directly or indirectly in the interest of an employer for one or more employees, and any agent or successor in interest of such person.” 33

While the House subcommittees on Labor Relations and Management and Labor Standards of the Committee on Education and Labor and the subcommittees on Civil Service and Employee Compensation and Benefits of the Committee on Postal and Civil Service held a hearing on the Parental and Disability Leave Act of 1985, the federal Parental and Disability Leave Act of 1985 (PDLA) was passed by the House of Representatives on April 10, 1985.33 The Disability Leave Act of 1985 failed to garner sufficient support. And some “Republicans expressed concern about the impact that the PDLA would have on small businesses… Congressman Harris W. Fawell, Republican of Illinois, questioned the cost that such legislation would have on small businesses and asked about the practical application of the PDLA to these [businesses]” during the initial hearing.

 Capturing the Attention of the Business Lobby

In March 1986, another version of a family and medical leave bill was introduced in the House, the Parental and Medical Leave Act of 198635 (PMLA of 1986), intended to apply to employers with “five or more employees and engaged in commerce or any trade or activity affecting commerce.”36 This bill gained more traction than the previous year’s version and attracted the attention of the business lobby.37 Business leaders protested that a federal family and medical leave policy “would impose unbearable economic burdens on American business.”38 Lobbyists noted that “[t]he costs associated with continuing the leave taker’s health benefits . . . and the reduced productivity that would result from replacing the leave taker would be “especially damaging” to this nation’s 14 million small businesses.”37 39 At a hearing held by the House Education Committee’s Labor Relations and Labor Standards subcommittees, Frank S. Swain, Chief Advocacy Counsel for the U.S. Small Business Administration, claimed that the employee number threshold in the 1986 PMLA bill was “ridiculously low.”40

“Senator Christopher Dodd, Democrat of Connecticut,” along with Senators Arlen Specter, Gary Hart, and Daniel Patrick Moynihan,41 “introduced a companion bill [in the Senate] to the PMLA . . . one month after the House bill was introduced, [with] several [key] differences.”42 In particular:

[T]he definition of employer contained in the Senate bill increased the exception for small businesses from five to fifteen. Supporters hoped that this definition of employer would be more acceptable to a Republican-controlled Senate . . . [This change] also made the Senate version of the PMLA identical to the Title VII definition of an employer.43

However, this compromise “excluded more than one-fifth of the private sector workforce.”44

Despite these concessions, the business lobby, as well as legislators who supported their interests, continued to oppose the low employee threshold. During a joint hearing on the House and Senate bills in April 1986, a representative of the Chamber of Commerce stated that “unpaid leave poses a serious and substantial threat to the ability of businesses to grow, compete, and create jobs, particularly small businesses.”45 Representative Margaret Roukema, Republican of New Jersey,46 was particularly critical of the impact that the 1986 PMLA bill would have on small businesses. Representative Roukema argued that the 1986 PMLA bill was “too ambitious for both the ultimate good of the workforce and the ultimate good of the business community.” 47 Regardless of these criticisms, the bill was eventually approved for consideration in the House of Representatives, but Congress eventually adjourned before the bill could be considered.

Moving Toward a More Stringent Employer Exception

Following the failure of the 1986 PMLA bill to pass, Representative Roukema herself introduced a parental leave bill, the Family and Medical Leave Job Security Act of 198749 (FMLJSA).50 The FMLJSA was intended to cover employers with fifty or more employees at “any geographically separate facility” or at a non-geographically separate facility that is “functionally separate and distinct from any other facility of the employer that is located within the same geographic area,”51 in an effort to “balance the legitimate concerns of small businesses.”52

While the FMLJSA did not pass, it marked an important step toward what would become the final version of the employee threshold requirement in the FMLA. This bill was the first time that the fifty-employee threshold was mentioned as a limiting factor for eligibility for family and medical leave. 53 The FMLJSA also classified employers not only by their number of employees but also by the geographic extent of their operations. 54 As eligibility requirements for family and medical leave evolved through the legislative process, the geographic restrictions proposed by the FMLJSA also evolved; the final version of the FMLA limited coverage to employers with fifty or more employees within a given seventy-five-mile radius. 55

Although the purpose of the mileage restriction is not readily apparent in congressional records contemporary with the introduction of the FMLJSA, a 1991 House report states that the mileage provision “recognizes the difficulties an employer may have in reassigning workers to geographically separate facilities,”56 potentially benefiting larger employers with widespread satellite operations in rural areas as well as small rural businesses. Later congressional sources also point to concerns about how family and medical leave would affect small businesses in rural areas. Representative Bill Barrett of Nebraska commented at a 1991 hearing on family and medical leave legislation:

As the owner of an insurance and real estate company in a small rural town in Nebraska, I know that the consequences of requiring even larger businesses to mandate unpaid family leave would have a damaging, ripple effect on businesses like mine.

Time and again I have seen government policies that hinder business growth and development, and in small rural communities that means community growth as well. . . .

I am concerned that in small communities in my state, like those that dot the landscape of my district, the temporary absence of even a single wage earner could have a serious effect. Employers cannot be forced to keep that position vacant if it means the possible bankruptcy of the company.57

At a hearing in 1993, Democratic Representative Dan Glickman of Kansas shared the concerns of his rural constituents about family and medical leave policies:

I want to share with my colleagues the views of average Americans. I have spent the past few weeks holding a series of town hall meetings in my district, particularly in rural and suburban areas. What I keep hearing, over and over again, is that small businesses, protected by this legislation, cannot stand any more government intrusion. The federal government can only impose so many regulations before a business owner realizes that he or she can no longer operate profitably. In our fragile economy, the role of government should be to encourage small business owners to thrive and expand so they can hire more workers, not burden them with more government mandates. 58

Although Representative Roukema’s bill failed, she and her supporters continued to hold fast to the fifty-employee threshold59 and consideration of a business’s geographic spread60 when structuring a small business exception to the family and medical leave legislation. These geographic exceptions took into account both small and large businesses operating in rural areas,61 and these exceptions became increasingly important as the FMLA neared passage.

The Beginnings of Compromise

In early 1987, the Parental and Sick Leave Act of 198762 (PMLA bill of 1987) and the Family and Medical Leave Act of 198763 (FMLA bill of 1987) were introduced in the Senate and House of Representatives, respectively. Both bills applied only to employers with fifteen or more employees;65 however, the House bill also included a requirement that these employees must work within two hundred miles of the employer’s premises66 (this was later amended to seventy-five miles67).

Congress held several hearings on the 1987 PMLA bill and the 1987 FMLA bill, including several hearings on the 1987 PMLA bill in cities across the United States. 68 The small business exception was frequently discussed during these hearings. 69 Rep. Roukema remained steadfast in her commitment to exempting businesses with fifty or fewer employees and was continually asked her rationale for supporting this employee number. 70 Rep. Roukema acknowledged that “50 is a somewhat arbitrary number” and that “[f]ifty employees or fewer would exempt approximately 44[%] of the workforce.” 71 However, Representative Roukema argued that the fifty-employee threshold was a better threshold than the lower employee exceptions in the 1987 PMLA bill and the 1987 FMLA bill “because [a] business[] with fifty employees ‘can absorb and still effectively continue its operations with a family and medical leave policy in place.’” 72 Representative Roukema did not rely on any empirical data in making this suggestion; Roukema commented, “In my own random survey of businesses in my district, 50 or more employees appears to be a workable and feasible number that my small business community seems to be able to work with.” 73 Representative Roukema’s concessions make it clear that the fifty-employee threshold was, in effect, arbitrary and lacked a factual basis beyond her own independent “survey.” 74

Furthermore, it is not clear from contemporary records why House lawmakers initially chose two hundred miles,75 which was later amended to seventy-five miles,76 as the radius for the mileage exception. Since there is no mention of empirical studies or other evidence used to determine this number, it is possible that the mileage threshold is also an arbitrary figure, like the employee threshold.

Despite the weak basis upon which the fifty-employee threshold, and possibly the mileage threshold, was established, Representative Roukema’s recommendations continued to gain support among her fellow Republicans.77 “Representative Roukema proposed an amendment in the nature of a substitute for [the 1987 FMLA]” in November 1987.78 This proposed legislation included a phase-in period: for the first three years, businesses with fifty or more employees would be covered; After that, businesses with thirty-five or more employees would be covered.79 The House Education and Labor Committee adopted the amendment, and several months later it was “reported by the House Postal and Civil Service Committee,” but was never debated on the House floor.80 The Senate companion bill also failed to come up for debate, mired in lawmakers’ concerns about the cost of family and medical leave for small businesses.81

In June 1988, Senator Dodd introduced what he described as a compromise bill in an effort to finally pass family and medical leave legislation.82 The Parental and Medical Leave Act of 198883 was intended to apply to employers with “20 or more employees… for each workday during each of the 20 or more workweeks of the current calendar or preceding calendar year.”84 Lawmakers’ insistence on the fifty-employee threshold and continued concerns about costs to small businesses led to a rise in the number of employees who were “employed” in the 1980s.85 businesses, as well as a general resistance to government mandates, led to the bill’s defeat, although not before the bill was debated on the full Senate in November 1988. 85 Democrats were unable to overcome Republican filibustering of the legislation, which centered “on whether the private sector, rather than Congress, is better equipped to decide and manage profit policy,” and Democrats vowed to reintroduce the bill after the 1988 elections.

Another Republican President, Stronger Small Business Exceptions

The 1988 election resulted in a new Republican president, resulting in greater incentives for Democratic legislators to strike deals with Republicans to pass family and medical leave legislation. 87 While the Senate version of the Family and Medical Leave Act of 198988 still only affected employers with twenty or more employees,89 the House bill, notably with Rep. Roukema on board as a co-sponsor, was intended to apply to employers with fifty or more employees within seventy-five miles for the first three years after the law was enacted, then to employers with thirty-five employees within seventy-five miles after the three-year period. 90 “[P]roponents of these bills strove to gather as much bipartisan support for their family leave bills as possible.”91 A bipartisan amendment was adopted in May 1990 to raise the threshold to fifty employees without the phase-in approach, cementing the threshold for family leave in the House. of FMLA employees as it stands in the final version of the FMLA.92 Despite bipartisan support for the Family and Medical Leave Act of 1989,89 the House bill was proposed to apply to employers with fifty or more employees within seventy-five miles for the first three years after the law was enacted, and then to employers with thirty-five employees within seventy-five miles after the three-year period.93 In 1989, President Bush vetoed the legislation in protest against government mandates, noting that “rigid federally imposed requirements” on businesses would harm the American economy; Congress was unable to override the veto.93

Despite the veto, lawmakers were still dedicated to passing family and medical leave legislation. Virtually identical bills as the previous year were introduced in the House and Senate,94 and each passed and was sent to President Bush’s desk.95 However, once again, President Bush vetoed the legislation, claiming that the “financial burden it would impose on businesses would further slow economic growth and job creation.”96 Congress was also unable to override the veto.

New Administration, Renewed Hope of Passage

The 1992 election brought renewed promise that family and medical leave legislation would finally pass with a Democrat in the Oval Office. 98 President Clinton was a strong supporter of the FMLA during the election campaign, bolstering lawmakers’ hopes for successful passage. 99 The FMLA was introduced in the House on January 5, 1993, and a companion bill in the Senate was introduced on January 21. 100 The small business exception in these bills reads as follows:

The term “eligible employee” does not include… any employee of an employer who is employed at a worksite at which such employer employs fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50. 101

The House and Senate passed the FMLA several weeks later, and President Clinton signed it into law on February 5, 1993. 102 Upon signing the bill, the House and Senate approved the FMLA, which was approved by the House on February 5, 1993. 103 FMLA, President Clinton noted that “America’s workers will no longer have to choose between the job they need and the family they love.”103

After nearly eight years of coalition building and bipartisan compromise, (some) American workers have finally won the hard-fought right to enjoy twelve weeks of job-protected leave to care for their own health or the health of a loved one, without putting their jobs and economic security at risk.

Reflections on Compromise

The road to passage of the FMLA was long and arduous, and is an example of the importance of legislative compromise to benefit the common good. However, many legislators were frustrated and dissatisfied with the sacrifices they made along the way in the name of compromise. During debates over the 1991 version of the FMLA that was later vetoed by President Bush, Representative Patricia Schroeder of Colorado, who was one of the original sponsors of the first family and medical leave bill in 1985, stated that she had “trouble supporting this compromise because [the bill] had been watered down too much.”104 At the same hearing, Representative Bill Owens of New York stated:

It would be difficult to weaken and water down this bill any more than it has been done in the 5 years it has taken to get to the floor… Most businesses are no longer even covered by this bill. Small businesses with fewer than 50 employees are now completely exempt. This bill will have no effect on 95 percent of businesses and 44 percent of employees in this country.105

Lawmakers continued to express frustration with these compromises reached during discussions over the final version of the FMLA in 1993.106 Representative Donald M. Payne, Jr., stated: “I am truly disappointed, however, with this watered-down version. It was watered down so that the previous administration wouldn’t veto it, and I wish we hadn’t started on that same premise—I’m personally disappointed.”107 Representative Patsy Mink said, “My only disappointment is that it’s not as strong as I would have liked it to be, and it’s the product of the Bush administration’s work in trying to water down our efforts over a number of years.”108 Several years later, when Senator Howard Metzenbaum introduced the 1993 FMLA on the Senate floor, he commented:

[T]he small business exemption in the bill…exempts 95 percent of businesses in this country. As a result, 60 percent of our workforce will not be protected by this bill.

Let me make this clear: This bill must protect all workers, not just an arbitrary fraction. A worker’s right to take family or medical leave should not depend on whether he or she works for a large or small company. But I recognize that compromise is part of the legislative process… 109

Some attempts were later made to reduce the FMLA exception for small businesses; President Clinton even urged Congress to lower the employee age threshold to twenty-five during his 1999 State of the Union address. 110 However, all attempts made at the federal level to change the small business exception have failed. 111 While many cities and states have enacted their own versions of family and medical leave with lower age thresholds for employees, the employer exception to the FMLA has remained unchanged for over thirty years. 112

The FMLA was originally intended to benefit all workers, regardless of the size of their employers. 113 However, capitulation to the business lobby left the law woefully underinclusive, excluding about 95% of the nation’s employers from coverage at the time of its passage. This singular focus on business interests ignored those whom the law was ultimately supposed to benefit: workers, especially low-income workers who might not have had access to medical leave benefits otherwise. Moreover, the FMLA’s strict eligibility requirements (which protect small businesses) are based on “admittedly arbitrary” numbers.114 Despite calls to narrow the employer exception, subsequent regulations have promoted the interests of rural businesses to the detriment of their employees.