April 12, 2013
Family and Medical Leave Act still helps some, but not all
In the struggle to balance our family and work lives, one law has made a giant difference for 35 million American workers -- the Family and Medical Leave Act.
In February, the FMLA celebrated its 20th year in existence. It has been a godsend for those of us who want time to bond with our newborn, care for an aging parent or deal with a health emergency without fear of losing our jobs.
But two decades after President Bill Clinton signed the act into law, advocates say they still have unfinished business.
“It was meant to be a first step toward a family-friendly American workplace. But it [has been] 20 years and we haven’t gotten to the second step,” says Judith Lichtman, senior adviser to the National Partnership for Women & Families and an original advocate for passage of the FMLA.
In many ways, the law has been even more helpful to working families than expected. The law initially was conceived to allow working mothers to take time off for childbirth and post-maternity. But over the past 20 years, it has been used 100 million times by all types of workers -- about 40 percent of them men.
Who can use FMLA
The Family and Medical Leave Act applies to employers with 50 or more employees within a 75-mile radius and people who have worked at their current employer for at least one year and 1,250 hours within the past year.
The definition of “family” under the law is narrow; leave is not available to caregivers of parents-in-law, grandparents, grandchildren, siblings, domestic partners or same-sex spouses.
The act does not provide leave for victims of domestic violence, sexual assault or stalking. And it does not provide any wages during periods of leave.
The FMLA has provided time off for women who needed medical care during difficult pregnancies, fathers who took time to care for children fighting cancer, adult sons and daughters caring for frail parents and workers taking time to recover from their own serious illnesses.
The federal law says we can take up to 12 weeks of unpaid leave if we work at a company with more than 50 employees, with a caveat that we must have been employed there for a year. The big benefit is that our jobs are protected during that leave.
During the recession, the job security and the continuation of health insurance that the law guarantees proved particularly important.
Debbie Winkles, senior VP/director of human resources at Great Florida Bank in Miami Lakes, Fla., used the law three years ago when she needed to care for her husband, who was battling cancer. Today, Winkles has male and female employees who are using the law to care for their newborns or to cope with illness.
Her company has created an easy spreadsheet system to track its employees’ leave.
In Wisconsin, Jill Delie is using the law to manage a chronic disease by taking a few days off each month for doctors’ appointments. In Maine, Vivian Mikhail used it to care for her daughter when the little girl was diagnosed with an autoimmune condition that left her deaf.
Recently, a longtime friend of mine told me how fortunate she feels to be able to take advantage of the law to spend time with her mother, who has incurable lung cancer. “I don’t want to lose my job, but I can’t imagine not being there for her when she needs me,” my friend says.
FMLA by the numbers for 2012
• Women made up 56 percent of employees who took leave.
• 57 percent of employees reported taking leave for their own illness, 22 percent for reasons related to a new child and 19 percent to care for a parent, spouse or child with a serious health condition.
• Most leaves were relatively short. Forty percent of workers reported they were away from work for 10 days or less; 70 percent were back at work within 40 days.
• Two-thirds of workers (66 percent) reported receiving at least some pay while on leave.
• Nearly half of workers who needed leave but did not take it (46 percent) said they were unable to afford unpaid leave.
• Women made up 64 percent of those who needed but did not take leave. Workers of Hispanic background were more likely than non-Hispanics to need leave but not take it.
• 90 percent of worksites covered by the FMLA reported that compliance has had a “positive effect” or “no noticeable effect” on employee productivity, absenteeism, career advancement and morale, as well as the business’s profitability.
Source: Department of Labor study
Yet for all the benefit, the Family and Medical Leave Act doesn’t guarantee wages while workers are on leave, a component advocates had planned as a second step. According to a Department of Labor study, 78 percent of workers who needed unpaid leave did not use it because they could not afford it.
Proposed federal legislation would expand eligibility and introduce a paid family-leave insurance program. Funded through a small payroll tax, the program would provide two-thirds of an employee’s wages for up to 12 weeks of leave.
“It’s embarrassing, given where we are compared to our partners in the industrial world. There are very few countries that still don’t provide paid leave,” Lichtman says.
Across the country, cities and states have been trying to fill this gap.
A handful, including Seattle, have supplemented the FMLA by adopting sick-time laws. Ellen Bravo, executive director of Family Values at Work, coordinates campaigns around the country to advance family-leave insurance and paid sick days. Beyond a patchwork of state and local laws, Bravo wants to see federal approval for expansion of the law to make it more affordable to people of all income levels to use. “The bottom line is: having a family shouldn’t cost you your job,” she says.
Those efforts aren’t popular with big employers. Bravo says that business interests, which fought the FMLA for nine years before its passage, predicted doom for employers. That never came to fruition, she says: “It’s been positive in the sense that it has kept workers attached to the workforce.”
New research released this month by the Department of Labor shows that women who take paid leave after a child’s birth are more likely to be working the following year.
Still, there are some unforeseen consequences with FMLA. Employers say it can be difficult to track time off for workers who take their 12 weeks of leave a few hours at a time. And, even with the law on the books, some employers just don’t comply, leading to lawsuits in federal courts around the country.
“In some scenarios, employers don’t familiarize themselves to the extent they need to with the FMLA requirements under the law,” says Angeli Murthy, an attorney with Morgan & Morgan in Plantation, Fla.
In Miami, Pat Hurley, a former president at Kent Security, asked for medical leave to recover from depression. His company’s CEO fired him the next day. “My story reads like a case study in how not to treat employees,” Hurley says.
Hurley sued Kent in federal court in Florida in 2008 for a violation of the FMLA and won more than $1 million in pay, penalties and attorneys fees. “The court found it significant that the CEO of 1,000 employees had never reviewed the employee handbook to familiarize himself with his obligations under FMLA,” says Murthy, who along with Richard Celler represented Hurley. (Kent has appealed the verdict.)
One of the biggest frustrations for the law’s advocates is that as much as 40 percent of the workforce isn’t even eligible. The law is confined to workplaces with 50 or more employees and excludes part-time workers. New legislation drafted in Washington, D.C., would expand eligibility to more of the workforce and introduce a nationwide paid family leave.
National Partnership for Women & Families President Debra Ness and others are pushing hard for the law’s expansion: “The law has been a huge success, but it’s time -- past time -- to take the next step.”
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