



































14

FMLA IN PA: ANALYSIS OF 
FAMILY AND MEDICAL LEAVE 

POLICY IN THE STATE

Jennie sWeeT-cusHman

Chatham University

This paper details the impact of the federal FMLA, as well as the 
complex web of additional protections many states have. Not all Americans 
enjoy the same rights to family and medical leave because 40% of them 
do not live in states that have written additional protections into state law. 
Pennsylvania is one such state. This paper offers a case study of the policy 
impact on citizens—particularly women, minorities, and the poor—in 
Pennsylvania, one of 21 states where lawmakers have not expanded their 
coverage beyond that of federal law.

Since its enactment more than 20 years ago, the Family Medical Leave 
Act (FMLA) has allowed millions of Americans to maintain job security 
while they tend to the important needs of their families. However, there 
are limits to the breadth of the federal law and many states have either 
subsequently passed their own leave protections that expand coverage in 
many ways or had pre-existing laws that went further than the federal law. 
This paper details the impact of the federal FMLA as well as the complex 
web of additional protections many states have. Critically, not all Americans 
enjoy the same rights to family and medical leave because 40% of them 
do not live in states that have written additional protections into state 
law. Therefore, this paper also offers a case study of the policy impact on 
citizens—particularly women—in Pennsylvania, one of 21 states where 
lawmakers have not expanded their coverage beyond that of federal law.

Family Medical Leave Laws

Signed into law in 1993, the federal Family Medical Leave Act (FMLA) 
guarantees eligible employees up to 12 weeks of unpaid leave per year for 



15

JENNIE SWEET-CUSHMAN

 health conditions, a new child, or military service. At the conclusion of the 
approved leave, eligible employees are guaranteed that their job (or one 
of comparable position) will have been held for their return. Employees 
that work in a business with more than 50 workers are eligible if they have 
worked for the company for at least a year, they have worked at least 1,250 
hours during the previous year, and if they work at a location with at least 
50 employees within a 75-mile radius. This generally means that part-time 
and self-employed individuals are not likely to be eligible. While these 
protections are for both men and women, the law was celebrated as being 
the first national effort to acknowledge maternity leave (albeit unpaid) for 
women.

Prior to passage, 34 states had some version of law that governed family 
and/or medical leave, though 11 of them applied only to state employees 
(Commission on Family and Medical Leave 1996). Only 12 states and the 
District of Columbia had laws that required employers to offer maternity 
leave (Irwin & Silberman 1993; Waldfogel 1994; Women’s Legal Defense 
Fund 1993). However, it should be noted that both large and/or unionized 
workplaces oftentimes had maternity and medical leave policies that were, 
in some cases, more generous than state law required (Waldfogel 1999). 
This continues to be the case.

Impact of FMLA

Following the passage of the FMLA, a series of government and 
academic studies aimed to determine whether the objectives of the law had 
been achieved. Three major conclusions were drawn about the effectiveness 
of the law in allowing workers greater access to job-protected leave.

The first conclusion pertained to the number of Americans who became 
eligible for leave protections under the new law. The Commission on Family 
and Medical Leave reported that as many as two-thirds of employees 
were employed by FMLA-covered employers (1996), but this statistic is 
misleading. Of this number, some employees did not work the required one-
year total of 1,250 hours and still others had not been employed for the 
required one year. Ultimately, perhaps only as few as one-half of workers 
were eligible (Ruhm 1997).

Mothers fared even worse, as far fewer were eligible for maternity 
leave under the FMLA. It was estimated that 31% of working women of 
childbearing age had been with their employer the one year required for 
eligibility and a mere 19% of new mothers met eligibility requirements 
(Klerman and Leibowitz 1994). Considering the spattering of state laws 
and private employer policies that granted leave for one reason or another, 
in some form prior to implementation of the FMLA, it is unlikely that a 



16

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

significant percentage of the workforce suddenly experienced a dramatic 
new access to protected leave. In fact, only 7% of workers that took a type 
of leave covered by the FMLA in 1994–1995 reported that they were able to 
do so by exercising FMLA benefits (Ruhm 1997), the remainder had other 
benefits they were able to use.

Additional findings were discussed following adoption of the law. The 
second conclusion was that as employers adjusted their benefit packages 
to bring them in line with the new law, which two-thirds report having 
done (Waldfogel 2001), they faced little hardship in having done so. The 
Commission on Family and Medical Leave stated that 90% of covered 
employers reported that the changes “had no noticeable effect on business 
performance or growth” (1996, in Ruhm 1997, 181). A survey of employers 
done in 2000 also reflected these positive reviews (Waldfogel 2001). 
Waldfogel (1999) estimated that it cost an employer only about $250 per 
year for each employee that takes leave.

Third, the law did increase the frequency of leave taking. The increase 
was found particularly at medium-sized firms that would have been less 
likely to have had pre- existing policies, and particularly for new mothers 
(Waldfogel 1999). An important consequence of the law is that it also 
institutionalized rights to parental leave, not just maternal leave; under 
the law men now have the same rights to paternity leave as women do 
to maternity leave. Another possible positive externality is the effect on 
women’s employment. Since the 1960s, there has been a steady increase of 
the number of women who return to the workplace after they have a child. 
Fifty-five percent of new mothers are back in the workforce within a year of 
their child’s birth (U.S. Bureau of the Census 2010).

In summation, while the FMLA offered a modest expansion of 
rights for workers, it did provide both more coverage and more usage for 
working women while imposing negligible costs to employers. Much of the 
reflection on the law’s early impact argues that this does not amount to a 
tremendous impact. However, it should be noted that most scholars observe 
(Ruhm1997; Waldfogel1997; 1999), as did the legislation’s supporters in 
the 1990s, that the law was not ever designed to be far reaching. The limited 
scope and strength of the law is a major contributor to the limited impact it 
had. Where the law had holes or inadequacies in coverage to meet the needs 
of the contemporary workforces, it was left up to states to compensate in the 
form of more expansive state laws.

More Comprehensive State Laws

Today, many of the original state laws that governed workers’ family 
and medical leave needs before passage of the FMLA are superseded by 



17

JENNIE SWEET-CUSHMAN

the more comprehensive federal law. Other states have passed laws that add 
to or expand the protections in the federal law. In addition to the federal 
FMLA, 29 states have taken steps to expand the coverage for their own 
workers by adding additional benefits and/or expanding which employees 
are eligible for protections in their states.

Table 1 identifies the additional benefits states have enacted and in 
which states these more expansive laws apply.

Table 1 
Additional Leave Protections in Current State Law by Type and State

Type of Expansion Expansion States

Application to smaller employers 
(fewer than 50 employees)

DC, ME, OR, VT (family leave)

CA, IL, ME, NE, NY, OR, RI 
(military leave)

CA, CT, IA, LA, NH, WA (maternity 
leave)

CA, MN, NC, VT (small necessities 
leave)

Broader, more-inclusive 
definition of “family”

CA, CT, DC, HI, ME, NJ, OR, RI, 
TN, VT, WA, WI

Additional military protections CA, CT, IL, IN, ME, MN, NE, NY, 
OH, OR, RI, WA

Pregnancy as specific disability CA, CT, HI, IA, LA, MT, NH, WA

“Small necessities” allowances CA, CO, DC, IL, LA, MA, MN, NV, 
NC, RI, VT

Domestic violence coverage CA, CO, FL, HI, IL, ME, NM, NC, 
OR, WA

Temporary disabilities CA, NJ, NY, RI

Paid sick leave CT, DC

Adoptive parents CO, KY, MD, MA, MN, NE, NY, VT, 
WI

Compiled from www.nolo.com (2014)

While each state that has enacted more comprehensive legislation has a 
different formula for what is covered and for whom, there are some general 
categories in which state laws have become more comprehensive than 
federal law. These categories are discussed below.



18

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

Definition of Family

In some states, what constitutes a family is redefined by including 
domestic partnerships, children of domestic partnerships, grandparents, 
or in-laws. In Washington, D.C., which has the most inclusive definition, 
“family members include parents, spouses, children, domestic partners, 
parents-in-law, grandchildren, children’s spouses, siblings, siblings’ 
spouses, children with whom the employee lives and whom the employee 
has responsibility for, and a person with whom the employee shares a 
residence and committed relationship” (District of Columbia 1990). In 
New Jersey, which also passed a FMLA in 1993 (NJFLA), the definition of 
eligible immediate family coincides with the federal definition, but extends 
it slightly to include a spouse’s parents (State of New Jersey n.d.). These 
states also have more flexible options when it comes to company size and 
leave availability.

Additional Military Benefits

Leave in the case of having a loved one on active duty is only available 
in 12 states, the most inclusive being Minnesota where if the employee’s 
grandparent, parent, legal guardian, sibling, child, grandchild, spouse, or 
fiancé is being deployed or coming back from deployment, or if they have 
been injured while deployed, they are entitled to limited leave. Other states, 
such as Maine, entitle domestic partners to leave. Some set limits on how 
many days of leave are permitted depending on the length of the deployment 
(it usually has to be over 90 days) (nolo.com).

Pregnancy as Specific Disability

Legislation regarding disability due to pregnancy is generally vague. 
States such as Connecticut, Hawaii, or Montana give “reasonable” leave due 
to pregnancy, while other states put a time limit on length of leave, commonly 
over at least three weeks. Recognizing pregnancy in itself as a disability 
has been a contentious issue since 1976 when the Supreme Court ruled in 
General Electric Co. v. Gilbert that discrimination on the basis of pregnancy 
alone did not equate to discrimination based on sex and was, therefore, 
not necessarily illegal. Congress responded in 1978 with The Pregnancy 
Discrimination Act (PDA), but the law has limitations when it comes to 
accommodations pregnant workers may need to continue working. National 
Public Radio recently reported that The Equal Employment Opportunity 
Commission has received 46% more pregnancy-related complaints over 
the last 14 years (National Public Radio 2014). The Philadelphia EEOC 
district office (which includes coverage of the entire state of Pennsylvania) 



19

JENNIE SWEET-CUSHMAN

registered more than 300 complaints in that time period—second only to 
the Miami district office (United States Equal Employment Opportunity 
Commission 2014). As a result of the increased claims, the commission 
issued a detailed clarification of how the PDA should be applied in cases of 
disability and other issues of leave in July 2014 (EEOC 2014).

Small Necessities

Some states offer their employees with children a few hours per year of 
unpaid leave for parent/teacher conferences or even for involvement in their 
children’s schools.

Domestic Violence Coverage

Employees of certain states are allowed some unpaid leave to get 
social, family, and medical services, such as medical or legal assistance, 
or enhance the security of their homes after a violent assault. Maine and 
Washington employers are required to grant leave to employees who have a 
family member that has been attacked (nolo.com).

Temporary Disability

California, New Jersey, New York, and Rhode Island have Temporary 
Disability Insurance and Paid Family Leave that entitles employees to a 
percentage of their wages, previously withheld from their paychecks 
through payroll deduction, much like unemployment insurance.

Paid Sick Leave

Connecticut and the District of Columbia offer paid sick leave 
dependent on how many employees a company has and how many hours the 
employee has worked. In D.C., this leave also includes domestic violence 
or family leave.

Leave for Adoptive Parents

While recent interpretations of federal law recognize adoptive and 
other caretaking scenarios as parenting relationships covered by FMLA 
(U.S. Department of Labor 2010), these protections are not extended to 
employers who are not required to offer protections or private companies 
that offer their own set of benefits that go above and beyond. However, some 
states award adoptive parents the same rights to leave as birth parents in all 
cases, as long as the company offers parental leave to biological parents. 



20

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

Some states, namely New York and Nebraska, make provisions regarding 
the child’s age. No state extends these additional benefits to step or foster 
parents.

Family Medical Leave in Pennsylvania

Twenty-one states offer no additional family-leave protections. 
Pennsylvania is one of the more populous of these states. Because there are 
currently no additional rights other than those afforded by the federal law, 
many of the state’s working women and their families have fewer protections 
than their peers in many other states.

Paid Leave

The largest disadvantage Pennsylvanians have is that state law does 
not mandate that private employers provide paid leave for its employees. 
While many private employers and municipalities do offer paid sick, family, 
and/or parental1 leave (United States Bureau of Labor Statistics 2013), they 
are not required to do so by federal or state law. So, while workers may be 
eligible for leave under FMLA, exercising it may be limited by financial 
considerations. Indeed, research shows that leave is much less-exercised by 
women with lower levels of education or women who are single parents 
(Han, Ruhm, and Woldfogel 2009).

Take into consideration the 24% of Pennsylvania families with 
household income that is below 200% of the Federal Poverty Level (FPL)2 

(Pathways PA
2009). Many of these families (21%) have at least one parent with a low 

level of education, making it difficult for them to secure jobs with wages high 
enough to make ends meet. Lower-income jobs, such as health care aids, retail 
or fast food workers, and child care providers, are disproportionately held by 
women. In fact, Corporation for Enterprise Development recently reported 
that 21% of Pennsylvanians face “asset poverty,” meaning they would not 
have the resources to survive for up to three months of sustained loss of 
income. Single women are 40% more likely than single men to be asset poor 
in Pennsylvania—which is a greater disparity than most states (Corporation 
for Enterprise Development 2014). For individuals and families who are 
living paycheck-to-paycheck, any reduction in household income caused by 
an unpaid leave can seriously affect already precarious household budgets. 
Taking an unpaid leave simply is not a viable financial option.

The City of Philadelphia passed a law in 2011 that required city 
contractors to allow their workers to accrue paid sick leave. A strong effort 
in 2013 to expand this requirement to all private city employers with more 
than five employees fell just short of passage when Mayor Michael Nutter 



21

JENNIE SWEET-CUSHMAN

vetoed the legislation, which had passed the city’s council by a vote of 11-6 
(National Partnership for Women and Families 2014).

Nonetheless, the efforts prompted 17 members of the Pennsylvania 
General Assembly to introduce House Bill 1807, The Leave Policy Act, 
which would prohibit “political subunits” in the state from enacting 
legislation requiring private employers to offer paid leave of any kind 
(Pennsylvania General Assembly 2013). The bill was referred to the full 
House by the Labor and Industry Committee in February 2014, but has not 
been voted on—likely because the 2014 election of Democrat Tom Wolf 
would mean the measure would face a veto. 

Adult Caregivers

For many working women, it is not only their own health or the birth 
of a child that requires them to weigh their options for being off work. 
Increasingly, adult children are faced with providing care for aging parents. 
According to the Pennsylvania Department of Aging, there are 1.3 million 
“informal caregivers” in the state who invest 1.4 billion hours of unpaid 
time in caring for the elderly in the state (2013). Historically, this burden 
has fallen on the adult daughters (and presumably daughters-in-law) of the 
aging individual who needs care (Smith 2004), many of whom are still in 
the process of caring for their own children’s needs. According to Dr. Lynn 
Martire and her colleagues of the University of Pittsburgh’s department of 
psychiatry, this burden is not just financial, but psychological as well. This 
dual demand on working women exacerbates stress-related depression, 
especially as it complicates their other roles as employees, wives, and 
mothers (2000).

The State offers some help with the financial burden with a means-
tested program—The Pennsylvania Caregiver Support Program—that 
reimburses qualified applicants for some of the expenses associated with 
caretaking. Eligibility for the program is income-based and uses a sliding 
scale cost sharing approach that may reimburse caretakers up to $500 a 
month for expenses such as uncovered medical costs or up to $2000 for 
home renovations (Pennsylvania Department of Aging 2014). 

Governor Corbett’s 2014–2015 budget proposal requested over $40 
million in additional funds for programs for the state’s elderly (Pennsylvania 
Department of Aging 2014), but it is not clear how much, if any, of those 
funds will be directed into The Caregiver Program. Presently, the program 
is aiding only around 7,000 caretakers, and not all of them are eligible for 
financial support, but rather counseling or referral services. A decision, 
then, to take unpaid time off under the FMLA to care for an aging parent, 
can mean financial hardship in precisely the same way faced by new parents 
or those with personal or immediate family medical needs.



22

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

Small Necessities

Not all the demands on working mothers are long term or overly 
significant. Several states recognize that working parents have smaller 
needs that require their attention during work hours, like parent teacher 
conferences and regular trips to the pediatrician. Often referred to as a 
“small necessities” law, a bill that would have protected a worker’s right to a 
handful of hours leave time to attend to these things was recently introduced 
in Pennsylvania. HB1673, The Parental Involvement Leave Act was 
introduced in 2013 to “[provide] Statewide uniformity regarding vacation 
and other forms of leave mandated by political subdivisions, for parental 
involvement leave and for civil remedies.” The legislation was referred the 
House Labor and Industry Committee but has not come up for any votes. 
The legislation’s original prime sponsor, Dan Miller (D-Allegheny) has 
since withdrawn his original sponsorship, but in August, 2013, wrote his 
colleagues to encourage them to support the legislation’s goal of enhancing 
parental involvement in their children’s school by requiring Pennsylvania 
employers guarantee parents paid leave time to attend parent-teacher 
conferences and other related functions (Pennsylvania General Assembly 
2014a). Miller reintroduced the legislation in the 2015–2016 term as HB 
849, picking up 19 cosponsors, but with no Republicans among them, the 
bill seems unlikely to have much success in the Republican-controlled 
legislature (Pennsylvania General Assembly 2015).

This type of legislation generally only provides a few hours per year for 
worker’s to access protected leave, and it is exclusively unpaid. It does allow 
parents to participate in important events in their children’s lives.

Definition of Family

Many Pennsylvanians are also limited in their access to FMLA protections 
by the law’s narrow definition of “family.” The Obama Administration has 
expanded the interpretation of the law to include coverage for same-sex 
parents of children that lack a biological relationship with the child (U.S. 
Department of Labor 2010). This extension of the law should serve to 
directly impact the potential for job-protected parental leave for parents in 
Pennsylvania’s estimated 24,481 same-sex households (U.S. Department of 
Commerce 2012). The Supreme Court struck down the Defense of Marriage 
Act (1996) in their 2013 ruling on United States v. Windsor, which had—in 
part—prevented the extension of federal benefits to individuals in same-
sex marriages. For now, this means that FMLA protections are extended 
to couples with marriages that are legally-recognized in the state in which 
they work (Department of Labor 2013), though there is an expectation that 
the ruling will ultimately extend federal protections to all legally-married 



23

JENNIE SWEET-CUSHMAN

couples regardless of their state of residence or work. It is also presumed 
that many of these protections will be extended to Pennsylvanians in same-
sex unions since the May 2014 legal decision3 that made same-sex marriage 
legal in the state.

What is less clear is how the limited definition of family will apply to 
same-sex couples as the interpretation of the law expands because there is 
no state law prohibiting workplace discrimination. Void of a more inclusive 
state law, committed couples or couples with marriages performed in other 
states will fail to have protections that extend to family members other than 
a spouse or children (e.g., in-laws, grandchildren, siblings).

Military

Some states’ laws recognize a family member’s military deployment 
as a “condition” sufficient for granting leave, known as a “qualifying 
exigency.” A member of the Armed Forces’ (to include the National Guard 
and Reserves) spouse, parents, or children (of any age) would be entitled to 
this leave under certain conditions requiring their absence from work (e.g., 
child or parent care, post-deployment activities) (U.S. Department of Labor 
2013). Pennsylvania’s more than 56,000 military personnel (Department of 
Defense 2014) were only given this recognition by a federal expansion of 
FMLA that took effect in early 2013 (Department of Labor n.d.). The state’s 
thousands of Iraq and Afghan War veterans would not have been covered 
under this expansion. Also, despite the Obama Administration’s 2010 repeal 
of the Don’t Ask, Don’t Tell (DADT) policy, same-sex spouses or partners 
as well as extended family of deploying military personnel continue to have 
no guaranteed right to leave, particularly in states that do not recognize 
these unions.

Some Pennsylvania military families who fall through this particular 
crack might be helped by a state program run through the state’s Department 
of Military and Veterans Affairs. Using both public funds and private 
donations, The Military Family Relief Assistance Program (MFRAP) offers 
grants of up to $3,500 to qualifying service members or family members to 
help with costs associated with hardships due to deployment4—including 
child care and other loss of employment income (Pennsylvania Department 
of Military and Veterans Affairs 2014). However, MFRAP is a small 
program and awarded only $104,000 to 33 approved applications in 20125, 
very few of which described circumstances that would have been governed 
by an expanded FMLA (Pennsylvania Department of Military and Veterans 
Affairs 2103). Veteran support groups in the nonprofit sector also offer 
services that presumably could help families struggling with leave-related 
issues.



24

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

Domestic Violence and Sexual Assault

According to the National Network to End Domestic Violence, an 
average of more than 2,400 adults and children receive services for domestic 
violence (e.g., shelter, counseling) in Pennsylvania each day and there 
are, on average, 33 calls to hotlines every hour (National Network to End 
Domestic Violence 2013). These statistics are only a portion of individuals 
coping with domestic violence as they do not reflect victims that do not 
seek outside help. In 2013, an additional 30,000 Pennsylvanians sought help 
as victims of sexual violence (Pennsylvania Coalition Against Rape 2013). 
Again, many of these crimes go unreported and/or victims do not actively 
seek support in their recovery. In their lifetimes, one in four women will 
experience domestic violence (Pennsylvania Coalition Against Domestic 
Violence 2013), and one in three will be exposed to sexual abuse of some 
kind (WOAR n.d.).

These victims of both domestic violence and sexual assault face 
discrimination and problems obtaining needed time off in their jobs 
(Swanberg, Ojha, and Macke 2012; Brownmiller 2013). Pennsylvania’s 
employers are required to provide potentially critical workplace safety under 
the Occupational Safety and Health Act of 1970 (OSHA), and employees 
would qualify for leave under FMLA if their absence would be to seek 
medical treatment for or to recuperate from injuries due to an incidence of 
domestic violence or sexual assault. State statutes also provide work leave 
for a related subpoena or court appearance (Swanberg, Ojha, and Macke 
2012).

However, victims of both domestic and sexual violence face far more 
than physical wounds they may have received in these attacks. Scholars 
who study the aftermath for victims of these crimes describe a long list of 
psychological concerns, as well—including post-traumatic stress disorder 
(PTSD), anxiety, insomnia, anger, self-harm, and high rates of depression 
(Armour et al., 2013; Humphreys and Thiara 2003). There are also more 
practical considerations, like victims needing to find a new place to live and, 
in some cases, establishing credit in their own names. These scenarios and 
others demonstrate how crucial the need to maintain employment can be to 
future empowerment of the victim. According to the Pennsylvania Coalition 
Against Domestic Violence (2014), while the state legislature is considering 
several pieces of legislation that support victims in other ways (e.g., laws to 
strength protection for children in environments of abuse), there is currently 
no legislation being considered in the state that would offer greater or more 
expansive employment protection for victims of either domestic or sexual 
violence.

As a result, the vast majority of Pennsylvanians have no leave protections 
under these dire circumstances. However, employees within the city of 



25

JENNIE SWEET-CUSHMAN

Philadelphia do have additional protections that were passed by the City 
Council and took effect in 2009. The ordinance provides up to eight weeks6 
of unpaid leave to workers of any Philadelphia employer7 who are victims 
of not only domestic or sexual violence, but also stalking. The ordinance 
allows an employee to take time off to tend to physical or psychological 
injuries, seek help from a domestic or sexual violence organization, receive 
counseling, relocate, or seek legal assistance for themselves or a member 
of their immediate family (City of Philadelphia 2009). However, there is 
some concern that this ordinance will be overturned by legislation passed 
by the state House of Representatives in March 2014 (H.B. 1796) that would 
prohibit municipalities from requiring certain benefit mandates from private 
employers (Pennsylvania General Assembly 2014c) similar to The Leave 
Policy Act mentioned above. When the General Assembly recessed in July 
2014, H.B. 1796 was still under consideration in the senate, but no action 
had been taken.

Temporary Disability and Pregnancy

The Social Security Administration provides income replacement to 
workers who become disabled or ill and are not able to work for 12 months or 
more (Social Security Administration 2012). Shorter-term leave needs would 
be (for those covered) governed by FMLA, but would be unpaid unless the 
employer offers additional benefits or the absence is covered under a state 
or municipal statute that offers paid time off for short-term needs. Many 
employers do offer short-term disability insurance programs that serve this 
function. The important distinction is, however, that while these insurance 
programs will provide compensation, they do not offer job protection. While 
most states have statutes that extend the FMLA job protection to short-term 
disabilities, Pennsylvania does not (J. A. Gallagher, personal communication, 
May 5, 20148). Theoretically an employee in Pennsylvania could be approved 
for short-term disability payments through the insurance program they 
participate in but lose his or her job while on leave.

A few states (e.g., California, New York) have incorporated a paid leave 
component into their state leave laws that requires employee contributions to 
a short-term disability program, effectively removing any additional burden 
from employers because the funds come from employees not employers. 
Examples from the handful of states that have implemented these programs 
indicate that employees take the leave they need more often and for longer 
duration because they are receiving compensation when they do. In 
California, for example, single mothers are among the biggest beneficiaries 
of this program (Koss 2003).

Short-term disability issues are particularly complex in the context of a 
pregnancy and the issue remains unresolved in states, like Pennsylvania, that 



26

FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

have not made clear statutes defining pregnancy as a disability. According 
to legal scholar Jeanette Cox, recent expansions of the Americans with 
Disabilities Act (ADA) have allowed for more conditions that may be 
concomitant with pregnancy—like shortness of breath or back pain—
to be protected under the law (and thus recognized by FMLA, as well). 
However, courts continue to bar extension of FMLA protection to pregnant 
workers suffering from ADA-recognized disabilities because pregnancy 
is not recognized as being a condition from which disabilities can stem. 
As Cox states, “the primary remaining justification for concluding that 
pregnant workers may not obtain ADA accommodations is that pregnancy 
is a physically healthy condition rather than a physiological defect (2012).”

Pennsylvania has been named one of the 10 worst states in the country 
for pregnancy discrimination (National Partnership for Women and Families 
2008). Without specific state law that defines pregnancy as a disability, 
expectant mothers in Pennsylvania who are in some way limited from 
performing their job responsibilities by side effects of normal pregnancies 
cannot receive reasonable accommodation under the

ADA or exercise FMLA rights. Without either of these protections, 
these women face potential repercussions by their employers when their 
job performances are affected. As a result, The National Women’s Law 
Center reports that many women are either forced to take a reduction in 
hours without pay, quit, or are fired from their jobs when employers refuse 
to make even small accommodations that are extended to disabled workers9.

Even when nondisability conditions associated with pregnancy are 
recognized, employers may insist employees take FMLA leave intermittently. 
Considering the law allows for only 12 weeks of protected leave, leaves 
during pregnancy can erode the amount of time available to a new mother 
once her baby is born (NWLC 2013).

In 2014, the Philadelphia City Council voted to amend the Philadelphia 
Fair Practices Ordinance of 2013 to include protections for pregnant workers 
in the city that require city employers to make reasonable accommodations 
(Council of the City of Philadelphia 2014). Testimony in support of the 
amendment drew attention to the fact that 53% of Philadelphia children 
are being raised by single working mothers, women who could not afford 
to suffer job and income loss because of pregnancy (Council of the City of 
Philadelphia 2013). 

Rep. Mark Painter (D-Montgomery) introduced H.B. 1892, The 
Pennsylvania Pregnant Workers Fairness Act, in February 2014. The 
legislation is designed to eliminate discrimination and ensure reasonable 
workplace accommodations for workers whose ability to perform the 
functions of a job are limited by pregnancy. The bill was referred to the 
Labor and Industry Committee, but no further action has been taken 
(Pennsylvania General Assembly 2014b).



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JENNIE SWEET-CUSHMAN

Conclusion and Policy Prescriptions

In conclusion, it is obvious that Pennsylvania’s leave laws and supporting 
statutes provide some of the nation’s most meager protections for workers. 
In the 20 years since the passage of the federal FMLA, a majority of states 
and municipalities around the country have expanded the law’s scope with 
statutes of their own. Regrettably, in nearly every way, other states have 
chosen to expand FMLA to offer additional rights and protections for their 
citizens; Pennsylvania has not.

In recent years, it is the state’s political climate that can be blamed 
for inaction. The Democratic minority in the general assembly continues 
to introduce legislation that would expand leave, but such legislation has 
received virtually no Republican support. To this point, increased partisan 
polarization makes compromise unlikely on even modest expansions, let 
alone more dramatic proposals such as a paid leave policy for the state. 

However, one need only look to neighboring New Jersey to identify a 
much more worker-sensitive environment. Two large cities in the state—
Newark and Jersey City—passed municipal laws that would mandate 
employers to allow employees to accrue paid days off. East Orange is 
considering a similar measure, and five municipalities passed citizen-
initiated ballot measures in fall 2014 that require employers to facilitate 
paid time off in their communities. The Associated Press reports that, as 
a result, New Jersey lawmakers are seriously considering legislation that 
would make the requirement apply to the entire state, and there appears 
to be enough support in the legislature to accomplish it (Mulvihill 2014). 
The state’s governor, Governor Chris Christie, however has expressed his 
reluctance to require businesses to provide paid time off to employees in 
the state, despite opinion polls that show more than 80% of citizens support 
government-mandated paid sick time (Dawsey 2015). 

Meanwhile, Pennsylvania has taken no action. This inaction has created 
a work environment in the state that is less protective of workers than those 
in many other states. Most significant, this analysis finds that these gaps in 
protection and rights are most obvious and under-coverage has the biggest 
impact for the state’s most vulnerable citizens. For example, this report 
identifies how low-income families, single parents, and individuals living 
on meager budgets cannot afford to take unpaid leave. Employees straining 
under the burden of caring for elderly loved ones (and perhaps children 
concurrently) have far too many limitations in their leave options. Victims 
of domestic or sexual violence, face further hardships in trying to manage 
serious needs that arise out of their victimization when it puts their jobs 
in jeopardy. Pregnant women can still be discriminated against when their 
pregnancy affects their job performance. Pennsylvania can and should do 
better.



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The following four recommendations for prudent action could make 
Pennsylvania a more hospitable place to work: Action by Municipalities, 
Leadership from the Private Sector, Support from the Nonprofit Community, 
and Expansion of State Laws.

Policy Prescription 1: Municipal Opportunity

One way expansions of leave laws have taken place in Pennsylvania, 
despite inaction by the state legislature, is the enactment of policy at the 
local level. Philadelphia and Pittsburgh10 (as well as Allegheny County), 
the state’s most populous cities, have recently instituted numerous policies 
that give workers who are employed within the city more access to and 
more expansive leave rights. While there are political forces at work against 
continuing to allow municipalities to enact these types of locally-applied 
ordinances, it remains an option for other communities that want to improve 
leave options in their jurisdiction.

In municipalities where significant political support for progressive 
protections

for workers exist, an effort to address these types of issues on their 
governing councils could certainly be tackled. Even smaller municipalities 
may see prudence in protecting the quality of their local government work 
forces by improving benefits that local government employees and/or 
contractors receive—a move that would be entirely within a local governing 
body’s authority. Of course a community-by-community expansion of 
leave offers no comprehensive solution for workers who continue to fall 
through the cracks in the federal law, but developments in population-dense 
areas where a majority of jobs are could greatly expand the number of 
Pennsylvanians who could enjoy the same protections as those who live in 
states with more comprehensive laws.

Policy Prescription 2: Role for Private Sector

A frequent argument made by the state’s conservatives regarding state 
regulation of employment policies is that telling private businesses how to 
run their businesses can limit economic growth and is not an appropriate 
role for state legislators. Where state laws fall short, then, private companies 
are left to make decisions on what type of leave policies they will offer 
their employees. Responsible employers should and often do recognize 
that offering their employees access to the leave they need has the potential 
to decrease employee turnover and resources needed for training new 
employees, as well as a happy, healthy, and loyal workforce (Grover and 
Krooker 1995; Batt and Valcour 2003).



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JENNIE SWEET-CUSHMAN

As Grover and Krooker (1995) found, “(E)mployees who had access 
to family-responsive policies showed significantly greater organizational 
commitment and expressed significantly lower intention to quit their jobs 
(271).”

Studies following the implementation of the federal FMLA also 
indicated that the cost of implementing (and employees exercising) leave 
policies is small. Because it can make good business sense, employers, from 
small to large and regardless of industry, should feel compelled to revisit 
their existing leave policies and consider expanding their benefits in perhaps 
small but significant ways that could improve the lives of their employees 
and create a culture of greater work-life balance in their industry. Even a 
slightly expanded leave policy could mean a great deal to workers faced 
with a personal need that prompts a tough choice about how to juggle their 
employment and the health and safety of themselves and their loved ones.

Policy Prescription 3: Need for Nonprofit Advocacy and Support

In reality, political will and corporate motivation to expand workers’ 
access to leave may require significant social pressure and targeted 
advocacy. A coordinated effort among organizations with missions that 
recognize the needs of workers, women, parents, families, children, the 
working poor, victims of domestic and sexual violence, and others could 
draw hereto unseen attention to the implications of the minimal protections 
Pennsylvanian workers have compared to workers in other states. A 
campaign that united these diverse but influential advocacy sectors behind 
an effort to expand state or local leave laws could be effective in a way that 
individual organizations (that have merely touched on some of these needs 
in their reform priorities) have not been. A larger, more expansive effort 
could draw attention to the vast opportunities lawmakers and employers 
have to improve working conditions in the state.

In the absence of expanded laws, many nonprofit organizations may also 
need to examine how they might develop programs that meet the needs of 
workers who have legal, personal, or financial hardships in the face of tough 
decisions about how to manage their leave needs. The nonprofit community 
is uniquely skilled at developing education and service programs that 
address many of the problems created by inadequate leave laws, as well as 
partnering with private corporations to meet many of these needs.

There are many considerations the nonprofit community could begin 
to make if there were an effort to more specifically address issues of leave 
in the state.



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FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE

Policy Prescription 4: Action by State Legislature

Finally and most significant, without changes in state law and even with 
ad hoc policy changes at other levels, many Pennsylvanians will continue 
to face inadequate protection under federal laws. As has been outlined in 
this report, this disproportionately disadvantages many of the state’s most 
vulnerable populations (see Table 2). Lawmakers should examine prudent 
means of comprehensively extending additional protections to the state’s 
workers—with a specific examination of viable legislative options in the 
state. The newly-created, bicameral, and bipartisan Women’s Health Caucus 
in the General Assembly seems a likely starting point for this endeavor.

Table 2 
Implications for Under-Covered Groups Under Pennsylvania Law

Under-Covered Groups Under Pennsylvania Law

Low-income families Leave requires financial hardship

Parents No leave for nonmedical needs, narrow 
options for adult caregiving leave

The Disabled Private insurance programs do not 
protect jobs

Military Families Families of recently-deployed veterans 
had few leave options

LGBT Families State law has limited recognition 
of nontraditional families in 
application of existing law

Pregnant Women Employers can force leave or terminate 
instead of making reasonable 
accommodations

Victims of Domestic/Sexual Violence Justification for leave may not meet 
needs of victims

All Pennsylvanians Scope, availability, justifications for, and 
ease of taking leave more limited 
than other states

The Caucus revealed The Pennsylvania Agenda for Women’s Health 
in December 2013 and has since introduced bipartisan legislation that 
addresses women’s health, safety, and financial security in the state. One 
of the group’s initiatives is H.B. 1892, The Pennsylvania Pregnant Workers 
Fairness Act, which addresses issues of pregnancy discrimination and 
accommodation discussed in this report. None of the other agenda items 
directly deals with issues of family or medical leave, but these issues are 
distinctly in the spirit of the caucus’s mission.



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JENNIE SWEET-CUSHMAN

In particular, the legislature and the governor should consider options 
for extending paid leave to millions of Pennsylvanians that have none 
whatsoever through their employers. Many, many states have recognized 
the limitations of the federal law and have acted in important ways through 
state statute to strengthen the options available to workers. Doing so 
in Pennsylvania would give working women and their families, as well 
as working men, greater flexibility to manage their health, the health of 
their families, as well as unforeseen emergencies that can happen to any 
Pennsylvanian. In doing so, quality of life and work environment could be 
improved for all workers in the state, regardless of their economic or family 
status, or gender. This has been successfully done in many other states as 
the modest federal FMLA law provoked state legislatures to fill in the gaps. 
As such, it seems reasonable to expect that with the right political attention, 
some moderate expansion of leave laws in Pennsylvania could be possible. 

Notes

 1 Frequently only maternity leave, but employers are increasingly offering new 
parents—regardless of gender—some form of paid leave.

 2 $40,000 for a family of four (Pathways PA, 2009).
 3 Whitewood v. Wolf; Palladino v. Corbett
 4 The grants are also awarded for several circumstances other than deployment, which 

would not be covered by family leave laws.
 5 The most recent year for which data is available.
 6 Employers with more than 50 employees must provide up to eight weeks of leave, 

while those with fewer than 50 are required to provide up to four weeks.
 7 Regardless of whether the employer is subject to FMLA.
 8 John Gallagher is a Pennsylvania disability attorney.
 9 In March 2015, the U.S. Supreme Court set an important precedent that pregnant 

women have some right to pregnancy-related accommodation in Young v. United Parcel 
Service. Presumably if pregnant workers are more easily able to get accommodations from 
their employers, fewer will need to take leave during their pregnancy. 

10 According to Pittsburgh City Councilwoman Natalia Rudiak (personal 
communication, March 17, 2015), the city could only offer paid leave to city employees 
because legal precedent prevents Council from requiring it be offered by employers within 
the city. 

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