FMLA's Impact: Balancing Employee Rights and Employer Concerns

Overview of the Family Medical Leave Act

The Family Medical Leave Act (FMLA) went into effect on August 5, 1993, with final regulations taking effect on August 6, 1995. The act entitles full-time employees to a total of 12 weeks of unpaid, job-protected leave during any 12-month period under specified circumstances. Full-time status is defined as having worked for the employer for at least 12 months and for at least 1,250 hours during the previous 12-month period. The FMLA requires employers to allow employees to return to the same job or a position of equal status with equivalent pay (BBP, 2004).

The context for FMLA's passage reflects significant changes in American work and family life. Americans work longer and harder than workers in other industrialized nations. The proportion of Americans in the workforce is at an all-time high, largely because more women work outside the home than ever before. In more than half of all families headed by married couples, both spouses work. Additionally, most single parents hold down full-time jobs. As a result, parents spend less time with their children than previous generations, creating what many observers call a "time crunch" (Family Leave, 2005).

Legislative Intent and Workplace Realities

The 12 weeks of leave do not need to be taken consecutively. Employees can work a reduced schedule or take intermittent leave in increments as short as one hour. For example, an employee with a serious health condition might take three weeks of continuous leave, then return to part-time work for several months while taking intermittent leave for medical appointments. Each time increment must be recorded and counted as part of the employee's 12-week annual allowance (Charlet & Kimberly, 1994).

When the FMLA became law in February 1993, women's and children's advocacy groups celebrated the legislation. However, many business groups protested that the law—which allows employees at companies with 50 or more workers up to 12 weeks of unpaid leave to care for a newborn, newly adopted child, or seriously ill family member—would impose an unfairly heavy burden on employers. Years later, the FMLA remains controversial. Some argue it is too broad in scope; others contend it is not broad enough (Kruger, 1998).

The FMLA was designed largely to alleviate the "time crunch" working parents feel between their jobs and their family responsibilities. The law gives many Americans a federally protected right to take time off work to care for newborn babies, sick relatives, or their own medical conditions. The law has been praised for supporting employee work-life balance and engendering a family-friendly workplace. However, its successes have not come without problems. Since its inception, employers have found FMLA certification, administration, tracking, and compliance confusing and problematic. Employers argue that the law's ambiguous language makes it difficult to certify, track, and administer leave, particularly intermittent leave (Reinberg, 2004).

Employer Concerns and Administrative Burden

Many employees remain hesitant to take advantage of FMLA protections. These workers fear that their employers will view them unfavorably for taking extended leave or that they will miss promotions or raises during their absence. Many low-income workers cannot afford to take leave because the law contains no provision for paid leave. However, business leaders and many conservatives have questioned FMLA's value and have opposed its expansion. In their view, employees have begun to feel entitled to extended periods of time away, thereby decreasing business productivity. Additionally, some workers are demanding days off for minor ailments that could be treated with a quick doctor's visit (Family Leave, 2005).

Some employers report significant challenges from FMLA implementation. Volinski (1999) explains that FMLA has had a negative impact on transit employees and agencies. Although the act was created with good intentions, many transit managers felt that it provides an opportunity for those with low sense of responsibility to stay out of the workplace when they choose. A review of 36 agencies examined how FMLA affected their operations. Twenty-six of the agencies interviewed stated they had extreme concern with FMLA's effects; the act was referred to as a nightmare, a disaster, and a royal pain.

Other employers report that they have had to make special accommodations due to FMLA that would not normally have occurred. Employers may choose to offer a variety of accommodations and enhancement benefits to meet objectives including mental and physical well-being support, family assistance, flexible work schedules, educational benefits, and support programs. The reasoning for these accommodations stems from the fact that absenteeism and tardiness are higher when employers do not offer accommodation and enhancement benefits that increase employee attendance (Martocchino, 2005).

Employee Perspectives and Barriers to Leave

Employers also face significant litigation concerns. Courts at all levels have applied definitions of "serious health condition" more broadly than regulatory intent. Under Department of Labor regulations, a serious health condition includes conditions requiring the employee to take three or more days off and have two or more doctor visits. Once this threshold is met, the employee may qualify for up to 12 weeks of FMLA leave. The complexities of FMLA compliance are driving more employers to turn to outside vendors to manage leave administration. Reasons for outsourcing include avoiding potential litigation and fines, providing privacy protection for health information, reducing administrative burden and training needs, ensuring consistent tracking integrated with other benefits, reducing lost productivity from over-certification, and maintaining compliance with appropriate documentation and state leave requirements (Reinberg, 2004).

Despite legal protections, many employees are reluctant to take time off under FMLA. Workers often feel that taking extended leave will incite disapproval from employers or cause them to miss raises and promotions. Many employees fear their employers will view them as lazy and unmotivated if they take leave. Research based on interviews with workers, particularly new mothers who had taken FMLA leave, reveals that many employers pressure leave-takers to return to work as quickly as possible. Upon returning, workers often feel resentment from peers and believe they must compensate for time away by working longer hours. Most workers, particularly men, worry about how leave will affect job mobility, including promotions and raises (Family Leave, 2005).

Financial barriers represent a critical obstacle to FMLA utilization. The greatest barrier to taking leave is that it is usually unpaid. Many employees eligible for leave cannot afford to take it because they lose income during absence. This is particularly true for female single-parent households. An inherent bias exists in favor of those who can afford to forgo income for the 12 weeks stipulated under the act. Employers can offer employees the option of taking accrued sick leave, vacation time, or disability pay during leave. However, policy changes are needed to mandate compensation for those not qualifying for these options. One possible solution would be to pay employees taking leave a portion of their full wages and deduct this amount from their wages upon return to work (Roog, Knight, Koob, & Kraus, 2004).

Research Findings on FMLA Implementation

In 1996, a Family Leave Commission appointed by Congress to study FMLA concluded the law was a success. Nearly 80 percent of 1,206 employers polled said it was easy to implement; 89 percent said it added only minor administrative costs or none at all. Despite early fears that FMLA would increase employee turnover, 84 percent of workers who took leave returned to their company (Kruger, 1998).

The 1996 Commission report identified several important positive findings. First, the law led to increased family and medical leave benefits for employees. Two-thirds of covered establishments reported changing aspects of their family or medical leave policies to comply with the law, and covered establishments were much more likely than non-covered establishments to offer family and medical leave. Second, the law had little or no negative impact on covered establishments' operations. More than 90 percent of covered establishments said FMLA was relatively easy to administer, and most said the law had no noticeable effect on their business performance. Third, work of those taking leave was typically covered by other employees. Most employees took short leaves (median length of 10 days, with 90 percent lasting 12 or fewer weeks), and their work was typically covered through temporary reassignment to other employees (Waldfogel, 2001).

The 1996 Commission report also identified problems and limitations. Coverage under the law was far from universal: only 59.5 percent of private-sector employees worked for covered establishments, and only 46.5 percent were both covered and eligible. Awareness of the law was limited—41.9 percent of employees at covered establishments had not heard of it. Although most employees could take leave when needed, about 3 percent of employees who needed leave for family or medical reasons during the previous 18 months were unable to take it. The lack of paid leave was a significant problem: many who needed leave but did not take it cited inability to afford unpaid leave (Waldfogel, 2001).

A survey of 300 West Coast employers showed that FMLA had little impact on them. Fifty-two percent said compliance costs were insignificant, and an additional 41 percent reported only minor costs. One reason for the limited impact was that few employees could afford to take advantage of unpaid leave provisions (Family Leave Act has little impact, 1994).

Conclusion: Balancing Rights and Responsibilities

Research findings pose a serious challenge to the "gender neutrality" goal inherent in FMLA. Single women with lower incomes constituted the majority of ineligible families, and the act does not adequately meet the needs of caregivers of children with chronic or life-threatening medical conditions. Those who used FMLA with incomes exceeding $35,000 were more satisfied with the act than those with incomes below $35,000. This difference in satisfaction reflects an inherent bias in FMLA based on socioeconomic status (Roog, Knight, Koob, & Kraus, 2004).

Independent studies conducted since the Commission report have found that family leave coverage increased because of the act and that use of family leave increased for some groups, such as mothers of newborns. However, FMLA's impact on actual leave usage appears smaller than its impact on coverage, perhaps reflecting financial and other barriers to taking leave. These barriers have been particularly important for men, who experienced the greatest increase in parental leave coverage but have shown minimal increase in actual usage (Waldfogel, 2001).

Recent changes to FMLA have expanded its scope. Military family provisions that took effect January 16, 2009, allow family members of soldiers to take time off if the soldier is deployed. This rule permits unpaid time off to spend with soldiers before deployment and to arrange personal affairs. The act also allows family members to take up to 26 weeks of unpaid leave to care for injured soldiers returning from deployment. Local companies face increased paperwork and potential loss of employee productivity from these provisions (Mortland, 2009).

One thing is certain: based on all the research data compiled in this paper, the effect of FMLA has been both positive and negative. In fact, perception depends on whom you ask. FMLA has accomplished one significant goal regardless of perspective: it has given average workers the ability to take care of themselves and their immediate family—an option that did not exist before the act's passage.

However, like every situation, it is easy to find people who take advantage and find loopholes. The question then becomes whether to penalize everyone for the few who manipulate the system. Yet research makes it difficult to penalize even those potentially in the wrong, which represents one of FMLA's negative effects as evidenced through employer complaints and legal circumstances. Through its enactment, FMLA was proposed to bring economic disaster, a concern that in many observers' views proved unfounded. With lower turnover and a boost to morale, 90 percent of employers told the Department of Labor that FMLA had a neutral or positive effect on profits. The benefits to children and families have been equally marked: when parents can be present for sick children, they recover faster, avoid more serious illness, and remain healthier. Family leave increases the likelihood children will be immunized, encourages mothers to breastfeed longer, and provides more time for parent-child interaction (Dobb, 2008).

Today, the idea of guaranteed leave seems obvious, but a new and equal challenge remains: making earned leave a possibility for all Americans. In the 21st century, working families should not have to forgo leave they have earned simply because they cannot afford it. The next step forward should include provisions for paid leave so that workers at all income levels can exercise their rights under FMLA.