Family and Medical Leave Act

Family Medical Leave Act

Before the Family and Medical Leave Act (FMLA) was signed into law in 1993, the United States was among the few industrialized nations with no such legislation in place.

Employees had to make do with piecemeal legislation, such as the Pregnancy Discrimination Act or with leaves won through union contracts or policies with more enlightened employers.

The FMLA, however, was a controversial piece of legislation. On one side, employers decried the effects the law were expected to have on their businesses. Many employees and union members, on the other hand, found the FMLA legislation not comprehensive enough and leave process too complicated.

A decade after its enactment, this paper evaluates the accomplishments of the FMLA.

The first part of this paper gives an overview of FMLA benefits and traces the history of FMLA legislation. In the second part, the paper examines the FMLA how both employees, employers and small business owners perceived the FMLA.

The third part of the paper looks at the real effects the FMLA legislation has had on employees and businesses in general, based on surveys commissioned by Department of Labor in 2000. Based on this survey, the paper identifies problems areas and difficulties with the current FMLA law. Finally, the paper looks at the various solutions offered to address these problem areas - ranging from a greater emphasis on worker's compensation to state-based initiatives.

By looking at the issues behind this law, this paper hopes to contribute towards addressing these problems and contributing towards a more effective and encompassing FMLA.

Overview

Under the FMLA, all covered employers were required to grant their eligible employees up to 12 weeks of unpaid leave in a 12-month period. Employees can take leaves for four main reasons. First, an employee can avail of the FMLA to give birth or to take care of a newborn child. Second, employees can take leaves to adopt a child, take in a foster child or to take care of a newly placed child. Third, an employee could take a leave to care for sick family members, meaning a spouse, child or parent. Finally, the FMLA allows employees who are ill and unable to work an extended leave period (Jenero and Ketay).

To be covered under this law, an employer had to belong to one of two categories. All public agencies such as schools and state, local and federal employers were automatically covered under the FMLA. In addition, private sector employers with at least 50 fulltime daily workers are also required to abide by the FMLA provisions (Jenero and Ketay).

To be eligible for the extended leave, an employee must first work for an employer covered under FMLA regulations. Furthermore, the employee should have worked for the employer for at least 12 months, encompassing a minimum of 1,250 hours during the previous 12 months. The employee should also be stationed in the United States or in a U.S. territory or possession, with at least 50 other employees (Jenero and Ketay).

Because FMLA leaves may be confused with other leave benefits, Department of Labor Regulations make it the employer's responsibility to inform their workers about the FMLA. Employers were thus mandated to inform their employees if future absences would count towards FMLA-related leave (Sayeed).

History

The FMLA is one of the most important pieces of labor legislation ever enacted in this country. Though its policies requiring unpaid leave were modest compared to policies in other industrialized nations, this policy had widespread support of powerful unions like the AFL-CIO (Schwartz 9).

Despite widespread union support, however, this enactment came only after eight years of Congressional debate. Congress voted on the issue 13 times, and President George Bush vetoed the bill twice. The FMLA was again passed by Congress in February 1993 and signed into federal law later that year by then President Clinton (Schwartz 15).

In many ways, the FMLA is a piece of legislation that specifically targets the dual care giving and economic roles of men and women, and the difficulty many people have with balancing work and family.

Seeds for the law that would eventually become the FMLA were sown in California in 1984, when a court struck down a California law mandating maternity leave as discriminatory to men. When Democrats approached women's groups for help in reinstating the law, the National Partnership for Women and Families instead proposed a broader leave that would address a wider range of work and family issues, for both men and women. In fact, the early drafts for the FMLA closely resembled the version that would be enacted eight years later (Asher and Lenhoff).

Advocates of women's rights and civil rights took up the issue, pointing to the inadequacy of maternity leave. First, there was no national policy for maternity leave, placing the jobs of pregnant women at the discretion of their employers. Critics also noted that focusing on maternity laws did not address the need for protected time off for a variety of reasons, not just when a child is born. Furthermore, men and fathers were an important part of early parenting (Asher and Lenhoff).

Advocates and supportive lawmakers began to lobby for a national family and medical leave law that was both comprehensive and gender-neutral. Activists and grassroots organization joined the Family and Medical Coalition, beginning with feminist and children's rights groups. The Coalition was soon joined by, among others, labor unions, the American Association of Retired Persons, various disability advocates and representatives of religious organizations such as the Catholic Conference and Hadassah (Asher and Lenhoff).

The diversity of these organizations belied claims that the FMLA was a left wing, anti-business attack on family values. The various representatives successfully raised bipartisan support in Congress and were able to argue their case during hearings and in the media. Support for the FMLA continued to grow (Asher and Lenhoff).

The Coalition, however, faced stiff opposition, mostly from representatives of business. Diverse business groups like the Society for Human Resources Management, the National Federation of Independent Businesses and the United States Chamber of Commerce all argued that the law undermined the independence and authority of businesses. Many representatives of small business feared that even unpaid leave would promote high absenteeism and cause significant loss of profit (Zall).

Still others attacked the law because it facilitated women's entry in to the workforce, encouraging them to stray from their traditional, family-oriented roles (Asher and Lenhoff).

Assessing the FMLA's Effects

Proponents of the FMLA hail the law as a significant achievement for employee and family rights. Since the law was passed, employees have gained significant access to expanded leave without having to worry about job loss. By 2001, an estimated 35 million workers have availed of leaves under the FMLA (Cantor et al.).

Most employees supported the provisions of the FMLA. A survey found that 88% of Americans who were familiar with the law viewed unpaid leave and job protection favorably (National Partnership for Women and Families).

Though business opposition to the FMLA has decreased significantly over the decade, many business coalitions continue to criticize the law and agitate for reforms. In a study commissioned by U.S. employers, for example, statistics showed that FMLA has a significant negative impact on both small and large employers. This study maintains that the law resulted in unpredictable absences and lost productivity. The FMLA also exposed employers to potential legal action caused by non-compliance (Leonard).

Partly for these reasons, many businesses have yet to fully-comply with FMLA provisions, almost a decade after the law was passed. An estimated ten percent of all covered businesses have yet to fully-comply with all the FMLA's provisions (Waldfogel).

Problems with Implementation

After almost ten years, many problems remain to be ironed out regarding FMLA-based leaves. Business representatives continue to criticize the law for its supposed negative impacts on profit and growth. At the other end of the spectrum, even proponents of the FMLA are critical of how employees find it difficult to avail of mandated leaves. This section evaluates arguments from both sides.

Business Concerns

Many arguments from an employer's perspective score the FMLA for its high administrative costs and its difficult requirements and record keeping. A group of allied businesses believe that while the law had noble goals, misapplications of the FMLA have hurt coworkers and customers (Zall).

Problems included high absenteeism and low productivity, as abusive workers took leaves for problems like pinkeye and the common cold. Employers could no longer fire or replace such nonperforming employees for fear of being sued (Zall).

The FMLA Technical Corrections Coalition also criticized the FMLA for its high administrative and personnel costs. Even though the extended leave is unpaid, employers were still required to continue a worker's health insurance benefits. They were also required to reinstate returning employees to their previous position, even if the position was already filled or restructured (Zall).

FMLA leaves also cause resentment and loss of morale among other, more conscientious workers who are not prone to absenteeism.

Even when the leave is justified, an estimated 92% of employers are forced to assign the work to other employees instead of hiring temporary workers. This results in unscheduled overtimes and an increased work burden for other employees (Zall).

The greatest problem with the FMLA, however, lies in the difficulty of determining what counts as a "serious health condition." Conflicting regulations from the Labor Department and federal court decisions make it problematic to determine which health conditions qualify for FMLA-leave. Depending on the regulations applied, conditions like colds, the flu, ulcers and migraines may or may not qualify for FMLA leave (Zall).

Aside from traditional businesses, large employers such as universities had problems with getting work done to cover for an employee's absence. Finding immediate competent replacements for professors on leave proved to be difficult. Professors who were already burdened with large class sizes could not simply take on the teaching duties of a colleague on leave. On the administrative side, budget constraints kept many universities from hiring temporary help, forcing department managers to take on several additional responsibilities (Campion and Dill).

In summary, arguments against the FMLA and for introducing FMLA reforms center around the law's potential to create business hardship. Even if the leave is unpaid, companies and businesses incur expenses when funding an absent employee's insurance and training their replacements. Some employers, such as universities, find it difficult to get competent replacements for employees on leave. Many employers find themselves unable to address rising absenteeism problems because of potential lawsuits. All these factors contribute towards a growing dissatisfaction and plunging morale among other employees, who are often forced to take extra work and responsibilities.

Employee Concerns

Despite these gloomy business predictions of absenteeism and business hardships, statistics show that 45% of the American workforce is not even covered under the FMLA. In addition, a Department of Labor survey shows that 78% of all eligible employees do not avail of the leave because they need their paycheck. An estimated one in 10 people who need to take unpaid leave are forced to go on welfare to make ends meet (cited in DeBaise).

Julie Shields, a lawyer who specializes in FMLA cases, says that the law "is almost worthless for most American workers because it is unpaid and therefore rarely utilized" (cited in Hansen). Because the leave is unpaid, it is only often invoked by higher income workers who have other resources.

In addition to the financial constraints, many workers contemplating FMLA leaves also face strong deterrents from their colleagues. A father contemplating FMLA leave in preparation for the birth of his second daughter ran into strong resentment among his peers and resistance from his managers. One colleague sniped that she should be allowed to stay home with her dogs. A senior boss warned that taking a month off would have deleterious effects on the father's career (Hansen).

1996 report on the impact of the FMLA showed that contrary to business claims of hardship, more than nine out of 10 employers said the law was "relatively easy" to administer and had no noticeable effect on their job performance. Most workers took short leaves, with an average of 10 days (cited in Waldfogel).

These results held up in a follow-up survey conducted in 2000. Covered establishments said that the FMLA had no noticeable effect on business productivity, profitability and growth. Majority of the businesses also found that intermittent leave - which was feared to be particularly disruptive - had no significant impact on their productivity (Waldfogel).

The 2000 survey also highlighted a trend in the reasons for taking leaves. Whereas maternity or disability were the most cited reasons for FMLA leaves in 1995, most employees who took FMLA leaves in 2000 did so to care for a sick spouse or parent (Waldfogel). This shift may reflect a growing acceptance and awareness of the FMLA provisions, encouraging more people to care for their loved ones themselves rather than hiring professional caregivers.

The availability of FMLA leaves has also had noticeable effects on parenting roles. Whereas maternity leave was only available to mothers of newborns, the FMLA allowed both mothers and fathers more time to bond with their growing children. The percentages showing FMLA leaves to care for a newborn or a newly-adopted or foster child were roughly equal between the sexes, with 35.8% for women and 34.1% for men (Waldfogel).

In general, majority of employees who availed of FMLA-related leaves reported being satisfied with the amount of time and the quality of their leave. Many of the leave takers said that the protected leave had positive effects on their ability to take care of sick loved ones, on their own health and on their emotional well being. For those who took health-related leaves, majority responded that the time off made it easier to comply with doctors' orders, leading to a faster recovery period (Waldfogel).

In conclusion, the more impartial studies show that the FMLA has not resulted in greater hardships to companies and businesses or in increased worker absenteeism. In fact, many employees reported faster recovery periods from illness due to this law. This would potentially benefit employers who could not readily find employees with similar qualifications, such as universities and college professors.

However, for almost half of all covered employees in the American workforce, the FMLA remains useless. Many employees are barred from taking leaves because of financial constraints or repercussions from colleagues and superiors.

Problem Areas

Two major problems areas are apparent from this survey of employer and employee concerns regarding FMLA leaves.

First, though the FMLA is an admirable step forward in federal work policy, this law does not cover all employers or work sites. It excludes about one-third of the American workforce. Furthermore, almost half of all employees are not eligible for protection, because they have not worked at their current jobs for the requisite time period. These eligibility restrictions tend to exclude vulnerable groups who may need this protection the most - low wage workers, part timers, immigrant workers and people who are trying to leave welfare.

Second, the FMLA only provides unpaid leave. The law is therefore ineffective for the millions of people who cannot afford to forego a regular paycheck. Many fathers, for example, who would like to be with their newborn children are forced to remain at work. Nearly one in 10 FMLA leave takers will have to avail of welfare assistance. Among households with annual family incomes below $20,000, the number of FMLA leave takers forced to take welfare is doubled.

FMLA Reforms

These FMLA-spawned difficulties have resulted in movements to reform the current FMLA restrictions. One side seeks to strengthen current vague definitions regarding serious health conditions and the supposed lower productivity. On the other hand, early advocates like the AFL-CIO and the National Partnership for Women and Families are pushing for the next step - paid leave.

This section of the paper explores the recommendations for reform, both on the part of the employers and employee advocates.

Employer Reforms

In Ragsdale v. Wolverine World Wide, landmark case for FMLA reform, the United States Supreme Court struck down the Department of Labor regulation that required employers to notify their workers when their absences would be counted as FMLA leaves.

The case concerned Tracy Ragsdale, a Wolverine World Wide Inc. employee who was diagnosed with cancer. Ragsdale was granted seven months worth of incremental leave as she got treatment. After the leave period, her employment was terminated due to her continuing inability to work. When Ragsdale petitioned for FMLA leave, she was informed that her previous seven-month incremental leave already fulfilled her FMLA allotment (Bartl and MacDougall).

Ragsdale filed suit in an Arkansas court, citing the Department of Labor regulation stipulating that if an employee avails of medical leave "and the employer does not designate the leave as FMLA leave, the leave takes does not count against an employee's FMLA entitlement" (cited in Bartl and MacDougall).

When the lower court ruled in favor of Wolverine World Wide, Ragsdale filed an appeal in the U.S. Court of Appeals.

The case reached all the way to the Supreme Court, where a five-member majority ruled that the FMLA regulation exceeded the Labor Department's authority to implement the statute. Furthermore, the Supreme Court ruled that the statute already specifically requires employers to post FMLA information notices, which is sufficient to inform employees of their rights. The Ragsdale challenge was invalid because "it relieves employees of the burden of proving any real impairment of their rights and resulting prejudice" (Bartl and MacDougall).

In defending the Court's decision, Justice Anthony M. Kennedy noted that imposing penalties on companies like Wolverine could cause other employers to discontinue other leave programs that already give employees more generous benefits than mandated under FMLA. This places the Department of Labor in violation of its own FMLA statute, which stipulates that nothing should be done to keep employers from offering their employees better leave benefits (Bartl and MacDougall).

Ragsdale v. Wolverine World Wide presents the most successful challenge to the FMLA laws to date. However, previous court cases have already ruled on challenges to FMLA provisions. In 36 out of 51 court decisions involving FMLA, the courts ruled that the questionable regulation was invalid (Bartl and MacDougall). The Supreme Court's Ragsdale decision further sets a precedent that will facilitate more challenges to ambiguous and contentious points of the FMLA.

While employer complaints are mostly anecdotal or backed by private-interest research groups, these successful court decisions set precedents that demonstrate the need for FMLA reform.

First, there is a need to clarify what illnesses fall under the classification "serious health condition." Critics argue that current definition of a serious health condition is too broad, including minor illnesses that are already covered by sick leave policies. In addition, while many workplace policies already provide for chronic conditions, employers believe that the FMLA regulations regarding chronic illnesses are particularly prone to abuse (Bartl and MacDougall).

Advocates thus believe that FMLA reforms should start by disqualifying short-term illnesses and other conditions with relatively brief recovery periods. Employers should also be given the right to verify the medical information on an employee's health form directly from the healthcare provider (Bartl and MacDougall).

Employers and human resources professionals have also identified several problems with the complicated procedures regarding leave requests and notices. While most cases require employees to give due notice, employees can request FMLA leave up to two days after an "unforeseeable" leave. Furthermore, a human resources professional who fails to classify leaves as FMLA leaves can be held personally liable for the violation, regardless of when the leave-taking employee files for FMLA (Bartl and MacDougall).

These restrictions place a great burden on the part of employers and human resource professionals. Therefore, save in cases of true emergencies, employers are lobbying for FMLA changes that will shift the burden of FMLA leave onto the employee. This will ensure that both parties are clear on when FMLA leave is taken, and avoid having human resources people from prying into potentially sensitive family and health matters.