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Family and Medical Leave Act 19 Years Later: Big Impact, Big Challenges

Family and Medical Leave Act 19 Years Later: Big Impact, Big Challenges

 

Written by Ellen Bravo

Nineteen years ago, an American president signed into law a measure that acknowledged for the first time in our history that having a family shouldn’t cost you your job.

The bill was the Family and Medical Leave Act (FMLA), the president Bill Clinton, the date February 5, 1993. What the FMLA guaranteed wasn’t on a grand scale—eligible workers can take up to 12 weeks unpaid leave to care for themselves, a new child, or a seriously ill child, parent or married spouse.

What was grand was that those covered were guaranteed to have a job to come back to and continuation of health insurance while on leave, if their employer provided such insurance.

Since its implementation six months later, the FMLA has been used more than 100 million times. Women have been able to take time to heal from childbirth. Men and women have used it to bond with a newborn or newly adopted or foster child, recover or help a parent or kid recover from a serious illness, sit by the side of a child dying from cancer.

Back in 1993, activists who’d worked eight years for this reform celebrated wildly. Twice the bill had been vetoed by the first President Bush. We knew it needed to be expanded—right now it covers only half the workforce, has an unrealistic definition of family, and is unaffordable for many. We expected those changes to follow.

I was one of 12 people appointed by Congress in 1995 to a commission to study the impact of the FMLA on employers and employees. We issued a major report showing that the bill had been a boon to workers without being a burden to employers. And even though the group was evenly divided between those who’d worked to pass FMLA and those who’d tried to stop it, we unanimously agreed that more needed to be done and encouraged states to experiment with forms of family leave insurance.

Nearly two decades later, two states have finally done so—California and New Jersey—thanks to the work of broad state coalitions. A third, Washington, has passed paid parental leave but implementation has been delayed.

As for the provisions of the FMLA itself, only minor adaptations have been made, almost all in the last two years. The most significant was ensuring use by family of military personnel who needed time off at the time of deployment or to care for an injured soldier. Just recently First Lady Michelle Obama announced proposed rulemaking for these new uses of FMLA, including one that would extend it for up to five years after a service member has left the military.

Same-sex partners who are not biological parents can now use FMLA to care for a new baby, thanks to an administrative interpretation by the Department of Labor last year that said they’re included in the phrase “in loco parentis” (in the place of a parent).

But those same-sex partners cannot use FMLA to care for each other. Workers in firms with under 50 employees, or those who work fewer than 25 hours a week, or who need to care for a sibling or an extended family member, are also left out.

Instead of being expanded, FMLA has been under attack. The latest version is a case before the Supreme Court that will determine whether state employees can use the law to recover from a personal illness or injury.

The legal issue involves states’ sovereign immunity from being sued in federal court for monetary damages. But the real issue in the case, Coleman v. Maryland Court of Appeals, boils down to this:  does the FMLA cover Daniel Coleman—and millions of other state workers—when they use it to care not for a family member but for themselves?

Daniel Coleman, was working for a Maryland court when he became ill and his doctor ordered bed rest. Within hours of requesting leave, Coleman was fired. He filed a lawsuit alleging a violation of the FMLA. The lower courts agreed with his employer, the state of Maryland, that the state could not be sued for monetary damages under the FMLA’s self-care provision.

Eight years ago, the state of Nevada made a similar argument when an employee named William Hibbs was fired after taking FMLA leave to care for his ailing wife. The Supreme Court in that case ruled that FMLA was enacted by Congress under its Fourteenth Amendment power to address unconstitutional discrimination, and does cover states in the area of family care.

Having to fight this battle all over again over the self-care provision is outrageous. Let’s hope that the justices get it right, so that the millions of state employees in this country don’t have to worry that following doctor’s orders could cost them their job.

Meanwhile, our coalitions will work hard to make sure that this protection applies to all workers.

This post was originally published by the Women’s Media Center.

 

Related Stories:

Family Medical Leave Act Amendments for Military Families and Caregivers

SCOTUS Considers Medical Leave for State Workers

GOP Presidential Candidates Tell Florida Uninsured Woman: You’re On Your Own

 

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Photo from mykaul via flickr

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15 comments

+ add your own
4:04PM PST on Feb 22, 2012

Thanks for posting.

12:54AM PST on Feb 22, 2012

Why is there a problem with FMLA? Traditional values would dictate that new parents establish that bond. Clinton did a good thing by supporting family values.

8:06AM PST on Feb 20, 2012

The sad thing is that so many employers are still fighting complying--including State agencies (there is a case the US Supreme Court is hearing now) and so costly for an individual to fight such discrimination and legal violations.

3:59AM PST on Feb 20, 2012

Thanks for the article.

4:29PM PST on Feb 16, 2012

Most workers in the US do not have sick leave.

4:14PM PST on Feb 16, 2012

Thanks

9:41AM PST on Feb 16, 2012

Thank you for the article...

9:24AM PST on Feb 16, 2012

Uma boa noticia para as familias Americanas

7:58AM PST on Feb 16, 2012

If it wasn't for the FMLA, I would have lost my job five years ago and my husband may or may not be alive now. He suffers from multiple, serious mental illnesses, and when he became acutely suicidal five years ago, I had to irregularly take a lot of time off of work to baby-sit him.

There were things about the law I found clunky and awkward- his psychiatrist didn't want to fill out the paperwork, she thought his therapist should do it. His therapist didn't think anyone would care what she had to say, his psychiatrist should be the one to do it. Finally I filled out the paperwork myself and had his psychiatrist sign it. While I was covered under it, a co-worker was, also, to take care of her husband with cancer. My husband is in remission now, hers isn't, but is still alive and doing well. It is an important piece of legislation, it's ridiculous that we have to fight tooth and nail for it, but I'm glad it exists.

7:03AM PST on Feb 16, 2012

I am all for the FMLA. But one negative I have observed is that people stopped saving/accruing their Sick Leave. They took more "mental health" days whereas people in the past saved their leave for the proverbial rainy day. My husband retired with some 2400 HOURS of accrued (unused) sick leave. I used most of my accrued leave during a battle with cancer (happily won!) and still retired with a good cushion of unused sick leave.

It's the short sightedness that bothers me...the abuse of the benefit and then the whining when the benefit runs out. And Sick Leave is a benefit, not a right.

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