Family and Medical Leave Act Comes of Age

Gwen Mayes, JD, MMSc

Disclosures

September 21, 2004

I've never understood people why people don't vote. I scratch my head at naysayers who claim their vote doesn't matter, that their voice can't be heard. As if the last Presidential election isn't reason enough to know that every vote counts, the thought also occurred recently while I was researching the Family and Medical Leave Act for a possible employment claim for one of my clients. On the Web site of the National Partnership for Women & Families (formerly, the Women's Legal Defense Fund) is an eloquent accounting of events leading up to the passage of the Act in 1993 -- "What it Took to Pass the Family and Medical Leave Act: A Nine-Year Campaign Pays Off."[1]

What it took, beside the obligatory Congressional lobbying, grassroots uprising, and persistent paper pushing, was a change in the White House. Pure and simple. Even after years of negotiating tighter eligibility requirements and enforcement mechanisms to garner bipartisan support for the bill, President George H. W. Bush vetoed the legislation a second time in 1992. This set up a campaign promise by Bill Clinton that it would be his first piece of enacted legislation on his watch if elected. And he kept his promise.

But the Family and Medical Leave Act of 1993 also reminds us of how a nearly isolated legal event can evolve into a dramatic change in healthcare policy on the national forefront. Twenty years ago, a federal court in California ruled that maternity leave was sex discrimination against men, and from that decision, advocates for gender-neutral medical leave for families, especially those who care for a newborn or ill loved one, began an arduous campaign that would significantly reshape health benefits for working Americans.

Today, the Family and Medical Leave Act[2] (FMLA) has come of age. The Act guarantees eligible employees who work for covered employers12 weeks of unpaid leave in a 12-month period: (1) for the birth of a child or the placement of a child with the employee for adoption or foster care; (2) if the employee is needed to care for a spouse, child, or parent with a serious health condition; and (3) to take medical leave when the employee is unable to work because of a serious health condition.

The impetus for FMLA is clear: more and more families are juggling the dual roles of domestic care and employment outside the family, and they need help in doing so. Over the past 30 years, the number of 2-parent, single-earner families has dramatically decreased; in 2000, almost two thirds (64%) of married couples with children younger than 18 years of age were dual-earner families.[3] And although the 2002 US birth rate was the lowest rate ever recorded in US history, the percentage of births to unmarried mothers increased to 34%.[4] On the other end of life's spectrum, "aging" is the highest reported illness or problem of care recipients,[5] creating a "sandwich" generation besought with care responsibilities at both ends of the life span.

According to the 2000 US Department of Labor Report, Balancing the Needs of Families and Employers: Family and Medical Leave Surveys, 35 million people have taken leave under the Act since its enactment.[6] Slightly more than 50% of the people took leave for their own serious illness; however, among both men and women, the second most cited reason for taking leave was to care for a new child or attend to maternity needs.

"The number one goal of the Act was balancing the needs of families and providing equal opportunities for men and women," says Carol Nowicki, attorney and human resource lecturer at California State University at Hawyard and a former attorney with the US Department of Labor (personal communication, August 31, 2004). "Studies show that the statute meets, or exceeds what Congress had in mind when the Act passed in 1993. What is even more compelling is that many employers who are not bound by the Act, still apply the same level of leave benefits and some even exceed them."

In comparison to other federal laws that protect an individual's rights, eg, employment discrimination, pregnancy discrimination, the FMLA is still new enough that case law in this area is still evolving. Should action be taken against the employee, the most important element of proof for the plaintiff will be the plaintiff's own testimony establishing that adequate notice was given to the employer and that the leave was for a protected reason, such as the plaintiff's own serious health condition.

The Act defines the term "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care in a hospital, hospice, or residential medical facility; or (2) continuing treatment by a healthcare provider."[7] Congress did not intend that FMLA cover short-term conditions for which treatment and recovery are very brief, eg, the flu. These will, supposedly, fall within traditional sick leave policies. Nor are conditions that require cosmetic treatments covered; serious mental illnesses are, standing alone, questionable.

Although heart attacks, cancer treatment, and rehabilitation for a stroke are clearly "serious health conditions," courts are being increasingly challenged to render medical opinions on the seriousness of other, less obvious health conditions. Because of the relative infancy of the law and the fact-specific nature of the circumstances, a whole area of case law -- literally disease by disease -- is being developed to determine whether a request for leave is warranted. The following are some examples of conditions that have been found not to constitute a "serious health condition" under the Act: "respiratory tract infection,"[8] "chronic fatigue syndrome,"[9] and "neck pain."[10]

Testimony from the plaintiff's treating physician or healthcare provider will also be important in cases for which the existence of a "serious health condition" is in issue. For new mothers who need to take leave, careful wording of the medical certification is important to ensure access to leave.

"When a woman gives birth and then needs to take leave because of a complication or illness, the physician just needs to be certain that he or she clarifies that the woman cannot work for at least 3 days," says Jodi Grant, Director of Work and Family Programs at the National Partnership for Women & Families (personal communication, September 8, 2004). "Just stating on the medical certification there are 'complications' is not enough to guarantee that FMLA benefits will be available. It's the same for prescribing 'bedrest' or any other nondescript treatment. It just may not be specific enough to guarantee that a woman can assert her rights under the law."

Despite its many benefits, criticism of FMLA does exist. Because the Act guarantees unpaid leave only, many employees cannot avail themselves of the benefits of caring for a newborn or ill family member if they are dependent upon a fixed income. Many times, it is precisely those strapped for assistance, such as single parents, who are in most need of a helping hand during tough times. In fact, the US Department of Labor 2000 survey showed that during the period of the survey (mid-2000), 3.5 million people needed leave for family and medical reasons but were not able to take it, and 78% of those who did not take leave did not do so because they could not afford it.[11]

"It's a huge problem for single mothers," says Grant. "Many of them cannot afford to go without a paycheck."

But for those women who can afford to take leave, Grant wants healthcare providers to know that leave is also available for prenatal care. "While many people associate the Act with maternity leave, it also provides for leave for prenatal care," says Grant. In essence, prenatal care (and any period of incapacity due to pregnancy) is 1 of the 3 expressed conditions under which an employee can take leave for continuing treatment by a healthcare provider. The other 2 are incapacity due to an illness lasting 3 days and treatment for an incapacity due to a chronic condition.

According to Nowicki, the Act has also had a very positive impact on the states. Some, like California, have taken FMLA's focus on work-life balance a step further. "California passed a paid leave statute in January that went into effect this past July," says Nowicki. "It's the only state to do so. At the moment, the law is fairly unpredictable, because it doesn't exclude small businesses like FMLA does and employees are eligible immediately upon employment. Employees can conceivably be hired 1 week and take leave the next. For that reason, the law hasn't been that well received by small business. We'll just have to see."

As society grapples with shaping a work environment that promotes work-life balance, awareness of family leave legislation will gain importance for both employees and employers. The continued success of FMLA will also depend upon a better understanding by employees of when to assert their rights under the law. According to the 2000 US Department of Labor report, 62% of employees at covered establishments do not know whether the FMLA applies to them.[12]

But for now, FMLA is deemed a success. "I wouldn't tinker with it," responds Nowicki when asked whether she would recommend any legislative changes to FMLA in the next administration. "It's working really well and employers are being encouraged to look at their leave policies and voluntarily put benefits in place."

"I'm optimistic that the political future of the FMLA is quite good," says Grant. "Regardless of who wins the presidential election, work-life issues are on the forefront and here to stay. Caring for one's children and aging parents gets the voters out there discussing the issues, and that's what really matters."

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