Though the employee's husband did spend nearly four weeks being involved in the healing ministry, "nearly half of the trip was spent not in faith healing, but visiting friends, family, and local churches" (FEPG).
The bottom line is that the FMLA won't permit employees to take leave when it is a vacation with a "seriously ill spouse" -- even if caring for the spouse is an "incidental consequence" of bringing him along on a vacation. Not only was the employee's claim for unfairness vis-a-vis FMLA denied, her petition for "associational discrimination" in violation of the ADA was not approved as well.
The FMLA was a politically hot potato even before the presidential election of 1992. The first two versions of FMLA were vetoed by George Harold Walker Bush, and during the 1992 presidential election, candidates Bill Clinton and Bob Dole debated the merits of the proposed legislation. In the end Clinton won the election and the bill became law in 1993. But is the FMLA everything it is cracked up to be? According to the Mother Jones (Mencimer, 2008) the law is "incomplete. It does nothing for people who simply can't afford to take unpaid leave" (Mencimer).
Moreover, Mencimer goes on, the law leaves out "40% of the workforce, including millions of workers employed by companies with fewer than 50 employees in a 75-mile radius." It also leaves out part time workers and "strangely, flight attendants," Mencimer goes on. In the industrialized world, only the United States does not provide paid maternity leave, Mencimer asserts. That leaves the U.S. "on a par with such nations as Liberia and Swaziland," the writer goes on. And during the George W. Bush administration Bush attempted to "quietly…gut the law through the regulatory process" but did not succeed in that effort.
The conservative United States Chamber of Commerce has "relentlessly attacked the popular law" calling it an "expensive" burden on companies "rife with abuse" (Mencimer). And Republicans have tried to obstruct every attempt to expand FMLA. Apparently the Department of Labor under George W. Bush tried to push through new regulations that would "…make it easier for employers to deny leave requests," Mencimer writes. The regulations would also have allowed the employer of a company to "directly quiz an employee's doctor" as to the seriousness of his or her medical condition. However, those regulations did not become law, and as of 2010, if an employer wishes to contact a physician about a request for leave from an employee, that employee must give permission for the employer to contact his or her doctor. Moreover, the employer must have a medical professional -- not the boss -- make contact with the doctor.
One can imagine a supervisor who doesn't want the employee to take leave contacting the doctor and bullying that doctor into admitting that it was not truly a "serious health condition."
During the presidential campaign of 2008, candidate Obama consistently said he was in favor of expanding the Family and Medical Leave legislation, according to Mother Jones. In fact when Obama was elected to the United States Senate, he hired Karen Kornbluh, who was previously the director of the Work and Family Program at the New America Foundation, as his policy director. Kornbluh's "fingerprints are everywhere" on Obama's positions in the family leave genre, Mencimer writes. Indeed Obama has said he wants to expand FMLA so smaller companies with fewer employees can also be covered.
In the White House Web site (www.whitehouse.gov) a report by Vice President Joe Biden on middle class families emphasizes that "millions of American workers" lack paid sick leave, personal leave or family leave and yet their economic security depends on them keeping their jobs. There are 3.7 million working adults with children under the age of 14 "and no other adult or older child to share child care responsibilities" (White House). And when a member of that family, or the worker, has to contend with a "contagious illness" like the H1N1 flu, currently the law does not protect that person.
Biden's report to the president asserts that the "Healthy Families Act" is a possible solution for families who cannot take time off to care for a very ill child or family member. The Healthy Families Act would provide millions of working Americans with the ability to "…earn up to 56 hours per year of paid sick time" during which they can care for themselves or their families." Those individuals would then have job security when they do take a leave of absence. They would be provided "short-term continuation" of their income.
The Secretary of Labor, Hilda Solis, wrote that "a key component of a good job is having the flexibility to meet caregiving as well as workplace responsibilities"; moreover, the work-life balance includes such things as paid leave, flexible work schedules -- and the option to work at home through the use of telework technologies. Add to those concept quality child care and elder care support and according to Biden and Solis, the Middle Class Task Force is coming up with proposals -- and legislation -- to help solve these problems for working families.
So, if polls "consistently show that most Americans strongly support policies like expanding the FMLA" as Mencimer contends, there may be additional legislation coming down the pipe soon to make FMLA even more friendly to families. Mencimer quotes the President of the National Partnership for Women and Families: "If we can accomplish all this in a recession" it will prove that nothing is impossible if there is the political will to get something done. Americans, Mencimer contends, are "hungering for change on this front."
American Federation of State, County, and Municipal Employees. (2008). The Family
And Medical Leave Act. Retrieved February 23, 2010, from http://afscme.org/issues/1764.cfm.
Berg, Gordon. (2003). USERRA Protects Family and Medical Leave Rights of Reservists
And National Guard. U.S. Department of Labor. Retrieved February 22, 2010, from http://www.dol.gov.
Connecticut Law Tribune (2010). Worker Sought Intermittent Leave for Wife's
Pregnancy. Retrieved February 22, 2010, from General OneFile.
Fair Employment Practices Guidelines. (2010). Purported faith-healing trip with ill
Husband not FMLA-protected. Retrieved February 22, 2010, from General OneFile.
Mencimer, Stephanie. (2008). What Family Leave? Mother Jones. Retrieved February 23
2010 from http://motherjones.com/politics/2008/06/what-family-leave.
U.S. Department of Labor. (2002). Protection of Uniformed Service Member's Rights to Family and Medical Leave. Retrieved February 23, 2010, from http://www.dol.gov.
U.S. Department of Labor (2008). Wage and Hour Division. Family and Medical Leave