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.
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).
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.
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.