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FMLA Not Really Working For Many Employees

Feb 5, 2013
Originally published on February 5, 2013 1:47 pm

Twenty years after President Bill Clinton signed the Family and Medical Leave Act, workers' rights groups say many employees still must choose between their family or their job.

They're marking the anniversary with calls to expand the law, and for Congress to pass a new one that would provide paid leave.

What Falls Under The FMLA?

FMLA provides up to 12 weeks per year of unpaid leave if an employee has a new baby or a serious illness in the family. But there are a number of restrictions, meaning some 40 percent of the workforce is not eligible.

"It has a very narrow definition of family," Ellen Bravo, of Family Values @ Work, says.

Same-sex partners can't use it to care for each other, and people can't use it to care for a grandparent. Only those who work at least 25 hours a week are eligible, even as an ever growing share of the labor force is part time.

"Many people are [cobbling] together two or three part-time jobs, none of which have enough hours to make them eligible for Family and Medical Leave. So this is a disaster," Bravo says. "We have to bring the rules in line with the realities of the workforce."

Crucially, businesses with fewer than 50 people are also exempt.

Not Eligible For FMLA

"I was shocked to find out that I wasn't eligible for FMLA," says Jeannine Sato, who became pregnant when she was a manager at a North Carolina nonprofit that touted its family-friendliness. She was told to return to work after six weeks or risk losing her job.

"I had a lot of issues with that," she says. "A difficult delivery. I had a colicky baby. My husband was working. It was very stressful, and I left as a result of it."

Ironically, Sato's husband's employer — an even smaller firm — felt so badly for the couple that it voluntarily gave him a month of unpaid leave.

Sato realizes she was still lucky. Today, she works with low-income women who are new mothers.

"I see parents going back to work after one or even two weeks because they have no paid sick [leave], they have no vacation, they're not eligible for FMLA," she says. "Even if they were eligible, they couldn't afford to take the unpaid time off."

FMLA Not For Everyone?

"Employers have constraints on them," says Marc Freedman, the head of labor law policy at the U.S. Chamber of Commerce, which led opposition to the Family and Medical Leave Act.

He says even unpaid leave is too big a burden for many small companies. For larger businesses, he says FMLA works pretty well for new parents, but medical leave can be a nightmare for employers to track.

Freedman says it's especially challenging when workers use it intermittently, with no advance notice.

"It's a ripple effect," he says. "Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace."

Taking Days Off

The Society for Human Resource Management says FMLA is consistently the top issue for employers who call its hotline. Among their questions: Which employees are eligible? And which illnesses are "serious health conditions"?

Then there's misuse of the law. Freedman says the leave was deliberately left unpaid to prevent that, and yet "the day of the year when FMLA leave is accessed the most is the day after the Super Bowl."

Still, a new survey by the Labor Department finds the vast majority of employers say it's easy to comply with the law and that misuse is rare.

And if there are some bad-egg workers, the same can also be said for some businesses.

Pushing Through The Pain

"It was described to me as if something really disastrous happened," says Mo Kessler, who used to work at a national grocery chain in Kentucky.

She told her bosses she had endometriosis and suffered excruciating pain a few days each month. But no one ever mentioned that she could use FMLA leave, and, at the time, she didn't know better. Kessler says she was told to push through the pain, or be written up.

"I would try to hide in the back because my face was so pale," she recalls. "I was so visibly sick that I needed to hide away from the customers, to not scare them off!"

With so many gaps and such confusion, the main debate over work and family has moved away from the FMLA and back to the original aim of those who pushed for the law: paid family leave.

Grass-roots organizations have been pushing such measures in states and cities across the country in recent years.

California and New Jersey have both passed a paid family leave insurance program in the past decade, and advocates hope they might be a model for federal legislation. They hope that will happen before another 20 years pass.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

STEVE INSKEEP, HOST:

It's MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. It was 20 years ago today that President Clinton signed the Family and Medical Leave Act. It meant that employees could take off up to 12 weeks of unpaid leave to care for a new baby or a family member with a serious illness.

(SOUNDBITE OF SPEECH)

PRESIDENT BILL CLINTON: I'm very proud that the first bill I am to sign as president truly puts people first.

MONTAGNE: Bill Clinton has since said that this is the law that, over the years, is most likely to get people to stop him in airports and thank him. But the law has huge gaps, gaps supporters had hoped to fill in over time. NPR's Jennifer Ludden reports that has not happened.

JENNIFER LUDDEN, BYLINE: If the Family and Medical Leave Act has meant nothing to you, you are far from alone.

ELLEN BRAVO: Half the workforce is still excluded from the FMLA.

LUDDEN: Ellen Bravo heads Family Values at Work. She says only those who work at least 25 hours a week are eligible, even as an ever growing share of jobs is part time.

BRAVO: Many people are copping together two or three part time jobs, none of which have enough hours to make them eligible for family and medical leave. So this is a disaster. We have to bring the rules in line with the realities of the workforce.

LUDDEN: Same sex partners? Not eligible. Need to care for a grandparent? They're not included. And, crucially, businesses with fewer than 50 people are exempt.

JEANNINE SATO: Well, I was shocked to find out that I wasn't eligible for FMLA.

LUDDEN: When she got pregnant, Jeannine Sato was a manager at a North Carolina non-profit that touted its family friendliness. But she was told to return to work after six weeks, or risk losing her job.

SATO: You know, I had a lot of issues with that. A difficult delivery, I had a colicky baby, my husband was working. It was very stressful. And I left as a result of it.

LUDDEN: Today, Sato works with low income women who are new mothers.

SATO: I see parents going back to work after one or even two weeks because they have no paid sick, they have no vacation, they're not eligible for FMLA. Even if they were eligible, they couldn't afford to take the unpaid time off.

MARC FREEDMAN: You know, employers have constraints on them.

LUDDEN: Marc Freedman is with the Chamber of Commerce, which led opposition to the Family and Medical Leave Act. He says it's just too big a burden for many small companies. For larger businesses, he says the FMLA works pretty well for new parents. But medical leave can be a nightmare for employers to track. Freedman says it's especially challenging when workers use it intermittently, with no advance notice.

FREEDMAN: It's a ripple effect. Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace.

LUDDEN: Another problem - Freedman says the leave was left unpaid to prevent misuse. And yet...

(SOUNDBITE OF THE SUPER BOWL)

UNIDENTIFIED MAN: At the 50 and the Ravens have won it.

FREEDMAN: The day of the year when FML leave is accessed the most is the day after the Superbowl.

LUDDEN: Still, the U.S. Department of Labor says the vast majority of employers report it's easy to comply with the law and misuse is rare. And if there are some bad egg workers, the same can be said for some businesses.

MO KESSLER: It was described to me as if something really disastrous happened.

LUDDEN: Mo Kessler used to work at a national grocery store chain in Kentucky. She told her bosses she had endometriosis and suffered excruciating pain a few days each month. But no one ever mentioned she could use FMLA leave, and at the time she didn't know better. Kessler says she was told to push through the pain, or be written up.

KESSLER: I would try to hide in the back because my face was so pale, and I was so visibly sick that I needed to hide away from the customers, to not scare them off.

LUDDEN: With so many gaps and confusion, the main debate over work and family has moved on, circling back to where it was before.

(SOUNDBITE OF RALLY)

UNIDENTIFIED GROUP: (chanting) Paid sick days. Paid sick days. Now. Paid sick days. Now.

LUDDEN: Paid family leave is now the rallying call for grass roots groups, like this one last month in New York. California and New Jersey have already mandated such programs. Advocates hope they might be a model for federal legislation and that it happens before another 20 years passes. Jennifer Ludden, NPR News, Washington. Transcript provided by NPR, Copyright NPR.