The Family and Medical Leave Act of 1993: origins and impact

FMLA and a Changing Society

The Family and Medical Leave Act of 1993 (FMLA) was passed by the 103rd U.S. Congress. President Bill Clinton signed it into law on August 5, 1993. It is published in Pub.L. 103-3; 29 U.S.C. sec. 2601; 29 CFR 825 (U.S. EEOC). FMLA required larger employers to provide job protection while on unpaid leave due to a serious health conditions that makes the employee unable to perform his or her job. The leave can be granted if they become sick, to care for a sick family member, or to care for a new child. This includes birth, adoption, and foster care. The law is administered by the Employment Standards Administration Wage and Hour Division within the U.S. Department of Labor. The following will discuss the historical and social context around which the law was written,

Social Context of the Law

Prior to FMLA, employers frequently fired employees who had to take extended time off due to their own illness, or the illness of a family member. If an employee was absent from work for a week or more, they could often be certain of losing their job. Women routinely lost their jobs when they had to take four weeks or more off work for the birth of a child. This created an unfair disadvantage for women in the job market. Employers were reluctant to hire women for fear that they might become pregnant and have to take extended time off work.

Often, women returned to work too soon after the birth of a child, placing themselves or their baby at risk. They often felt coerced by the threat of job loss and would return to work against their doctor's orders. In addition, there were no provisions in the law for a person to take off work to care for a sick relative. When an employee or loved one became seriously ill, they were forced into making unfair choices between their own health, the health of their family, or their jobs. It was never an easy decision and created considerable stress in the lives of working Americans.

In addition to providing for job security and guarantee, FMLA also protects employee benefits. Their benefits must be reinstated upon their return. An employer cannot deny an employee's rights under FMLA. It also protects the employee from types of retaliation by the employer. FMLA is written to protect the worker and to help end certain forms of discrimination that were present at the time of its writing and adoption.

The act has been criticized for promoting discriminatory actions by employers. Although they cannot discriminate against women once they are hired. There is nothing to stop them from exercising discrimination in the hiring process. Employers know that it is unlawful to discriminate based on gender, but this type of discrimination is more difficult to detect, than that which occurs once the woman has been hired. It is easy for the employer to simply choose the "other" employee in many cases.

FMLA was adopted in response to demographic changes. At the time of its writing, women of childbearing age and mothers of young children had entered the workforce more that at any other time in history. Economic conditions made it necessary for women to enter the workforce. They were no longer to stay at home as previous generations had done. This demographic change in the workforce was a result of economic necessity. However, social forces also played a role. Women wanted the greater independence that having their own job meant.

Changing Demographics and Special Populations

At the time of writing, FMLA provided a necessary break for families. However, since its writing, the population demographics have changed again and new needs have arisen. The baby boomers are growing older and as the population ages, more and more working persons are finding themselves having to juggle work and caring for elderly family members (One Solution HR). Caring for this special population of family members takes more than the 12 weeks granted by FMLA. It is an ongoing process that can last a decade or more. The amount of time needed varies according to individual needs.

Another special population that represents a growing need in the workforce is those who have to care for a handicapped, or disabled child. Like the care of the elderly, caring for a disabled child is a long-term process, with a varying number of hours required (Schuster, Chung & Elliott et al., pp. 698). It was found that parents of the average parent of a disabled child missed up to 20 days of work to care for those children and averaged 12 doctor and emergency room visits per year (Chung, Garfield and Elliott et al., pp. e1407). They also reported not always taking the time off to care for their children when they needed to and that they often returned to work before they felt they should have (Chung, Garfield and Elliott et al., pp. e1407). Just as with caring for the elderly, there may be an ongoing need to take regular time off for doctors appointments, medical tests, physical therapy, court appointments and a host of other reasons. However, unlike the emergency, short-term situation provided for by FMLA, the needs involved in the care for the elderly and physically handicapped may go on for years.

FMLA does not cover those who are anticipated to need to take off work for longer periods of time. It was meant to address rather short-term problems, not those that were anticipated to go on for years. However, the number of persons who fall into this category is expected to increase as the population ages. In addition, recent surges in disabilities such as autism place a growing number of parents at risk for falling into this situation (One Solution HR; Schuster, Chung & Elliott et al., pp. 698). In a recent study, employed parents expressed that taking time off to care for a disabled child improved the child's emotional and physical outcome. It also had a positive effect on their own emotional health. However, they felt that it placed a financial strain on the family and perhaps even jeopardized their job (Schuster, Chung & Elliott et al., pp. 698).

FMLA was written in response to a changing demographic population. It eased the strain for a majority of working American families. Through the years, FMLA has been extended to include adoptions, foster care, and other special circumstances. However, those that must care for the elderly or for the disabled population still face the strain of trying to juggle the needs of their family member with the needs of their employer. Demographics have once again changed and it would be prudent at this time re-examine FMLA to make certain that it cares for the needs of those with long-term health needs. Recent studies indicate that FMLA no longer meets the needs and provides the protection that was intended to a large portion of the population. This gap needs to be fixed if FMLA is to continue to meets the needs of the American workforce.