Happy birthday, Family and Medical Leave Act

The landmark legislation has helped an estimated 50 million workers -- but does it go far enough?

By Page Rockwell
Published February 5, 2007 6:57PM (EST)

Several Broadsheet readers have written in to remind us that today marks the 14th anniversary of the Family and Medical Leave Act, the legislation that allows workers to take unpaid leave from work to recover from a serious health condition, have and care for a newborn, handle adoption or foster-care placement issues or care for a sick family member. Before the FMLA, medical leave was controlled by employers and the individual states, and those needing a chunk of time off for a family medical emergency often risked losing their jobs, losing benefits and/or finding themselves effectively demoted when they returned to work.

In that light, the FMLA might seem like a no-brainer, but the law has its detractors; some argue that offering unpaid leave is too expensive for businesses and open to employee abuse. Some even argue (subscription required) that because women are more likely than men to take family medical leave -- the text of the FMLA notes that "due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men" -- the law makes women more expensive to employ than men, and thus encourages employers to discriminate against women when making hiring decisions.

The National Partnership for Women and Families, which helped pen the FMLA, disagrees, and has said (PDF) that "before the FMLA became law, there were states with narrow medical leaves that effectively discriminated against men by covering a common medical condition that women face (pregnancy) but not comparable medical conditions that men face. This also led to more discrimination against women, because it encouraged employers to view women as more costly employees." (Before he was on the Supreme Court, Samuel Alito made a different argument: that there was no evidence that women are at a disadvantage in the workplace when they can't take maternity leave. This notion eventually got the smack-down from then Chief Justice William Rehnquist.) For its part, the FMLA is deliberately gender neutral, noting that "employment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender," and therefore offers leave for all qualifying employees.

The word "qualifying" is critical, though. As Washington Post blogger Leslie Morgan Steiner summarizes today, under the FMLA, "employees who've worked for 12 months and put in at least 1,250 hours at companies with 50 or more employees can take up to 12 weeks of unpaid leave" per year. Plenty of American workers don't meet that standard. And even for those who qualify, 12 weeks of unpaid leave isn't always a great boon; how many workers can afford to sacrifice nearly a quarter of their annual salaries?

Sen. Chris Dodd, D-Conn., who has been plugging away at these issues for years, is currently promoting legislation that would require employers to offer qualifying employees six weeks of paid family medical leave per year. Steiner explains, "The program would be funded by a shared-cost mechanism supported by the employer, the employee and the federal government"; she also notes that the National Partnership for Women and Families and Sen. Ted Stevens, R-Alaska, have already voiced support for the plan. Six weeks of paid leave might sound like a lot -- except when you consider that the U.S. is one of the few countries in the world that don't provide paid maternity leave. (In a recent study from Harvard and McGill universities, researchers surveyed 173 countries and found that only five -- Papua New Guinea, Lesotho, Swaziland, Liberia and the United States -- provide no form of paid maternity leave. Plus, only 12 percent of U.S. employers voluntarily offer paid leave.) How will Dodd's proposal fare in the new Congress? Will the bill revive old arguments about the cost of doing business and whose job it is to care for family members? Seems likely: In explaining her opposition to Dodd's proposal, Deputy Assistant Secretary of Labor Karen Czarnecki told ABC News, "I think people have to take responsibility for themselves and they shouldn't always look to government to have an answer for them." We'll keep you posted as the brouhaha unfolds.

Page Rockwell

Page Rockwell is Salon's editorial project manager.

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