Family Medical Leave Act Under Attack

by Kari Lydersen

Jul 8 - Despite protests from labor and women's organizations, the Bush administration is considering changes to the federal law that guarantees unpaid time off for employees attending to personal and family medical problems.

Under pressure from business groups critical of the Family and Medical Leave Act (FMLA), the US Department of Labor may soon impose restrictions on workers seeking time off under the hard-fought 1993 law. Currently, for employees of companies with at least 50 employees, the FMLA grants up to twelve weeks of unpaid leave for health and personal reasons, including birth or adoption, death or illness of family members, sickness or treatment for chronic health problems.

Among other things, the law means not as many employees need to choose between their job and taking care of or starting a family. "It was a ten-year fight to pass it," said Taylor Hatcher, an analyst with the National Partnership for Women. "It's really important to us."

The law currently protects about 40 percent of the private sector workforce, according to Hatcher, though advocates have long been pressing to expand its coverage.

Lower-income workers who are less likely to have access to paid sick days, maternity leave and other benefits through their company's policies especially value the law. "It's an incredibly popular statute," AFL-CIO legislative representative Kelly Ross told The NewStandard. "Everyone should be entitled to this leave. The ability to deal with a crisis in your life without getting fired is pretty important to people, and it's a matter of basic decency."

About 50 million workers have taken advantage of the act since its inception, according to a working group including the National Partnership for Women, who used 2000 Department of Labor data to extrapolate the rate of use.

Manufacturing and business groups like the US Chamber of Commerce and the National Association of Manufacturers claim that employees abuse the law by invoking it whenever they are late to work or want to skip out early. A recent study by the pro-business Employment Policy Foundation said the productivity lost to FMLA leave cost employers $4.8 billion in potential profit during 2004.

Over the past few years, members of Congress have unsuccessfully brought legislation restricting the FMLA. Advocates say the legislation failed to pass since the act is so popular with voters and labor and women's groups nationwide.

Today, the changes are likely to be made by the Labor Department through bureaucratic rule changes to the FMLA statute instead.

Although there are no concrete proposals on the table, three major areas have been discussed during June Senate hearings and meetings between Department of Labor officials and business groups.

One possible change would limit the amount of "intermittent" leave that can be taken in small blocks. Discussed alterations would mandate leave must be taken in blocks of at least four hours. Currently, someone could take an hour of leave for weekly physical therapy appointments, or even half an hour to deal with a child's illness or to recover from a migraine.

Another change would modify the definition of a "serious illness" and require more proof of health conditions justifying leave or ongoing treatment.

A third change would require employees to provide their bosses more notice before taking leave. Currently, employees are supposed to give 30 days notice for foreseeable conditions and reasonable notice for emergencies. In an emergency, employees do not need to appeal for FMLA leave until they return from an absence.

The Employment Policy Foundation report said that not giving timely notice was one of the most harmful ways workers use the FMLA. The report, "The Cost and Characteristics of Family and Medical Leave," found that in over 30 percent of cases, employees notified employers after the leave had already started and only 35 percent gave more than a week's notice.

The report also said employers are hit with costs for replacement labor and continuing health insurance payments for employees during unpaid leave. And it claimed employers have observed morale problems among other employees who see coworkers abusing the FMLA.

Proponents of keeping the FMLA as it stands argue that abuses of the Act's provision are localized problems that should be dealt with in individual workplaces, not grounds for changing the FMLA. The Institute for Women's Policy Research released a paper rebutting the Employment Policy Foundation's work, noting that the survey represented only 110 employers not selected at random, employing less than half a percent of all US workers. They note that employers with complaints were probably more likely to answer the survey, leading to an over-estimation of the difficulties caused by the FMLA.

In fact, a study by the Department of Labor in 2000 found that, "for most employers, the Act had no noticeable effect on their overall productivity, profitability or growth."

It said that for "more than 80 percent of covered employers, the act had a positive effect, or no noticeable effect, on business productivity, profitability and growth. Two-thirds of covered employers reported that, overall, complying with the Act was very or somewhat easy."

Meanwhile, workers and women's rights groups want to not only maintain the FMLA as it currently exists, but to broaden its protections and guarantee paid family leave at the federal level. They note that the United States is the only industrialized country without national paid maternity leave. A recent study by the Center for Economic and Policy Research found that mothers make significantly higher wages later in their careers if they have access to paid maternity leave.

"If women have paid leave they are much more likely to go back to their jobs, and much less likely to quit or switch jobs," economist Heather Boushey, the author of the study, told TNS.

In February 2005, Senator Chris Dodd (D-Connecticut) introduced the Family and Medical Leave Expansion Act, which would provide at least six weeks paid leave to workers for care-giving needs arising from birth, adoption or family illness; expand FMLA coverage to workers in businesses with at least 25 employees – instead of 50; expand the reasons for leave to include domestic violence and its effects; and allow 24 hours a year for school activities like parent-teacher conferences.

"It is still a real burden for people to take leave because they don't get paid and they get criticism from employers," said Misha Werschkul, a research associate at the Institute for Women's Policy Research. "And they are still being fired if they don't quite meet the requirements of the FMLA. We need to go in the direction of expanding [the FMLA] and getting more information about it out there, rather than weakening it."

© 2005 The NewStandard. See our reprint policy.