FAMILY LEAVE



In the latter half of the 20th century, the American family and the American workforce underwent two changes that had a significant effect on the workplace. The cost of living rose dramatically, making it more and more common for both parents to work outside of the home, and the family became less likely to be comprised of two parents, working or nonworking. Where one adult headed a household, that adult worked. In addition, these adults became increasingly responsible not only for the care of young children, but also for the care of older adults—those over age 55. These shifting family responsibilities had an impact on the workforce in terms of scheduling, as workers required more time with children and older adults, especially when one of the persons being cared for by a worker became ill. While most workplaces offered paid sick leave for illnesses of the worker, few offered any kind of assistance when a worker had to take off time to tend to the needs of another family member.

"Family leave" is the term applied to leave taken for the care and assistance of another member of the family or a person in the care of the family. The term itself does not imply anything about the pay status of this leave. In other words, the leave may be paid or unpaid, nor does it imply a reason for taking the leave—such as pregnancy, maternity leave, care for the elderly, or adjustment to adoption.

In the 1980s many employers saw the need for the workplace to adapt to the changing circumstances of the American family. Some employers built on-site day-care centers for children and even for the elderly. Employers began to experiment with alternative work programs such as job sharing, flextime, flexplace, and other arrangements that would allow employees to deal more conveniently with personal responsibilities without taking time off. Labor unions negotiated further arrangements including the right to take large blocks of unpaid time off with the guaranteed right to return to the same or an equivalent job. This concept of taking time off from work to meet emergencies and be guaranteed the right to return to one's job became more important in the tight economy of the late 1980s and early 1990s, when finding a new job was becoming increasingly difficult. Congress responded to the general clamor for these rights by passing a law extending them to the majority of public and private employees.

The Family and Medical Leave Act of 1993 (FMLA) is a landmark piece of legislation designed to resolve the gap between the needs of the U.S. workforce and the development of high performance, economically healthy workplaces. FMLA entitles employees of private and public sector firms or agencies with more than 50 employees to take up to 12 weeks of unpaid job-protected leave each year for law-specified family and medical reasons. The U.S. Department of Labor estimates that the FMLA applies to 70 percent of the national workforce. One of the key provisions of the bill is that during the time of unpaid leave, the employer maintains any preexisting health insurance under any group health plan for the duration of the leave and at the level and under the same conditions that the coverage was provided prior to the commencement of the leave. The law is administered and enforced by the Wage and Hour Division (WH) of the Department of Labor's Employment Standards Administration.

According to WH publication 1421, "The FMLA is intended to balance the demands of the workplace with the needs of families." The need for such a law has been documented in many ways. Fact Sheet No. 86-4 documents the role of the working American woman in the care of children and the elderly. Women comprise nearly 50 percent of the total workforce, and working wives contribute substantially to family income. In March 1992, according to the U.S. Department of Labor, 59 percent of wives in married couple families were in the workforce. In 1991 the median income for families with the wife in the labor force was $48,169 and for families without the wife in the paid labor force, the income was $30,075. Women who maintain families alone had the lowest median income ($16,692) of any group in the labor force.

Of the 34 million women who had children under the age of 18 in March 1992, 67 percent were in the labor force. Fifty-eight percent of the 9.6 million women with children under the age of six were in the workforce in March 1992. At the same time there was a large increase in the number of elderly who needed care. Department of Labor figures showed that women gave a disproportionate amount of child and elder care, despite their increased participation in the workforce. Between 1994 and 1996, 82.3 percent of leave taken by all New York State employees under the FMLA was taken by women. The Department of Labor Fact Sheet 86-4 reports:

Those caring for functionally impaired elderly family members are predominantly females, with adult daughters providing 29 percent of the long term care and wives providing 23 percent. Three-fourths of the caregivers live with the care recipient and the majority provide assistance seven days a week, an average of four hours a day. About one fourth of the daughters and one-third of the other female care givers have competing family obligations.… The burden for workers responsible for both children and elderly relatives, however, is expected to be especially great in the years of the next century when the baby boom cohort largely constitute the members of the elderly population. Many persons then ages 45-49 will have to support both an aged parent or parents often over 70 years and children of college age or younger.

One of the salient points of the FMLA is that it applies to both males and females, recognizing the fact that while by tradition the responsibilities fall more often on the female, there are certainly many cases in which the male is the caregiver. The right to take leave under FMLA applies equally to male and female workers.

Coverage is not universal and the right to take up to 12 weeks of unpaid leave does not apply in all circumstances, only to "legitimate" reasons as recognized by the FMLA. The FMLA provides that when the cause of the leave is "foreseeable," as in the birth or adoption of a child, the employee must give the employer at least 30 days notice of leave-taking. The employer, under some circumstances, has the right to include paid leave days as part of FMLA leave. It must also be noted that if a state's benefits are more generous than those of the FMLA, then the state's benefits supersede those of the FMLA. Fact Sheet 93-1 notes: "The Act does not supersede any state or local, collective bargaining agreement, or employment benefit plan providing greater employee family leave rights, nor does it diminish the capacity to adopt more generous family leave policies."

Not everyone is entitled to apply for leave under the FMLA. Teachers are subject to special rules when leave coincides with the end of a school term. A husband and wife who are working for the same firm cannot each take 12 weeks of leave; they must split the time except in cases of rare illness in the immediate family. The highest paid 10 percent of a company's salaried employees may be denied job restoration. An employer can require a person to provide an additional medical opinion from its own physician list about the need for leave. If for some reason a person decides not to return to the job after the leave, the employer has the right to bill for the cost of all of the health benefits paid during the absence.

The law excludes any persons employed at a worksite that has fewer than 50 employees, if the total number of persons employed by the employer within 75 miles of the worksite is fewer than 50. In 1997 Congress began consideration of amendments to the FMLA that would make employees of agencies and firms with 25 or more employees eligible for protection under the act. It is estimated that this amendment would extend FMLA protection to 13 million workers currently outside its jurisdiction.

The law also specifies the way in which leave may be taken. It may be taken intermittently or on a schedule that reduces the usual number of hours per workday, subject to employer approval. Further amendments to the FMLA under consideration by Congress in 1998 include allowing employers to require employees to take intermittent leave in half-day increments and redefining serious health conditions.

Public and private sector employees eligible for the leave must have been employed by the employer for one year and have worked at least 1,250 hours. The 12 weeks of leave may be taken only once in any 12-month period. The law specifies that a leave may be taken for one of these reasons: birth or adoption of a child; acquiring a foster child; the serious illness of a child, spouse, or parent; or the serious illness of the employee. The FMLA currently defines a serious illness as "an illness, injury, impairment, or physical or mental condition requiring inpatient care or continuing treatment by a health-care provider." Although a 1996 survey by the U.S. Department of Health and Human Services found that the majority of employers found compliance with the FMLA easy and its cost effects minimal, enforcement of the act has proven difficult in certain respects.

FMLA protections overlap to some extent with those set forth in the Americans with Disabilities Act (ADA), giving rise to legal and compliance questions. For instance, the ADA definition of a disability includes people who have an impairment that substantially limits one or more life activities (such as walking or seeing), people who have a record of such an impairment, and people who may be regarded as having an impairment. Given the nature of this definition and that of a serious illness under the FMLA, it is clear that contentions can arise between employers and employees regarding which act applies, or whether both acts apply, in individual cases. Legal analysts believe that it is easier to meet the definition of a serious illness under the FMLA than it is to meet the definition of a disability under the ADA, and feel that many cases brought by employers against employees seeking FMLA protection should not be litigated.

Employee rights are enforceable through civil actions. Complaints of violations must be brought to the attention of the Department of Labor no later than two years after the date of the last event constituting the alleged violation or within three years of the last event if the violation is willful. Complaints are filed with the Department of Labor's Employment Standards Administration.

SEE ALSO : Child Care/Elder Care

[ Joan Leotta ,

updated by Grant Eldridge ]

FURTHER READING:

Hesse, Katherine. "Attorney Reviews Significant Employee Benefits Cases." Employee Benefit Plan Review 53, no. 4 (October 1998): 12.

Kim, Soonhee. "Toward Understanding Family Leave Policy in Public Organizations." Public Productivity and Management Review 22, no. I (September 1998): 71.

Papa, Jeri White, Richard E. Kopelman, and Gillian Flynn. "Sizing Up the FMLA." Workforce 77, no. 8 (August 1998): 38.

Williams, John M. "Clearing Up Confusion on Hiring the Disabled." Nation's Business, December 1998, 55.

Woller, Barbara. "Family Leave Law Turns Five." Detroit News, 11 August 1998, A5.



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