Family and Medical Leave Act

Employment opportunities for women in the United States have been limited by the assumption that women are mothers first and workers second or that working and mothering are incompatible. Differences in the treatment of men and women have been justified on the basis that women are or could become mothers. Women's prominence in the private, domestic sphere created a parallel stereotype in which men were thought not to have domestic responsibilities. Employers denied or discouraged men from taking leaves from work to care for family members, especially children. In 1993 Congress passed the Family and Medical Leave Act to allow both men and women to take leaves from work to provide family care.

THE PROVISIONS OF THE ACT

The Family and Medical Leave Act of 1993 (FMLA) requires public and private employers to grant eligible employees up to twelve weeks of unpaid leave from work for a serious health condition, for the birth or adoption of a new child, or to care for a family member with a serious health condition. Although an employer can require an employee to exhaust any accrued paid leave as part of its twelve-week obligation, the important provision of the statute is the right of the employee to return to the same position or a similar position with equivalent pay, benefits, and working conditions after completing the leave. Employees may enforce the statute in federal or state courts by seeking money damages or an injunction to require compliance.

The FMLA applies to employees who have worked for an employer for at least a year and for more than 1,250 hours within the last year. Employees in high-ranking or sensitive positions are ineligible for FMLA leave; state elected officials, their staff, and appointed policy makers are excluded expressly from coverage.

THE PURPOSE AND APPLICATION OF THE ACT

The stated purpose of the FMLA is to protect the right to be free from gender-based discrimination in the workplace. Congress found that primary responsibility for family caretaking often falls on women and that such responsibility affects the working lives of women more than the working lives of men. To minimize the potential for sex-based employment discrimination, Congress attempted to ensure that family leave would be available on a gender-neutral basis. By creating an across-the-board rule and setting minimum standards for leaves, Congress tried to ensure that family leave would not be stigmatized as a drain caused only by female employees. The statute challenges the stereotype that only women are responsible for family care.

The FMLA applies to men and women alike, although nearly 60 percent of those who take leaves are women. It also applies to the married and the unmarried in terms of leave for the birth or adoption of a child. The statute also allows employees to take a leave to care for a child, spouse, or parent. The term spouse does not include domestic partners; the term parent does not include parents-in-law. The term child is more inclusive in that it includes not only biological and adopted children but also stepchildren and children for whom the employee has day-to-day responsibilities to provide care and financial support.

The FMLA does not address fully the problems facing single parents—not because they are ineligible but because there is often no one to share the work and family responsibilities. It also does not address the problems facing employees who cannot afford to take unpaid leave. Private employers with fewer than fifty employees are excluded from the FMLA; this means that a significant part of the workforce is not covered by the statute.

Workers' illnesses have dominated the use of FMLA leaves. This transformation of the FMLA to an extension of sick leave is the source of most employer criticism of the statute. Moreover, most leaves under the FMLA are short: Half of the longest leaves are for ten days or less.

As a policy to minimize the potential for gender-based employment discrimination, the statute gives eligible employees additional choices in dealing with family responsibilities. As a policy to aid in the balance of the demands of the workplace with the needs of families, the statute has had a minimal impact. Many leaves are for an employee's own illness. Leaves to care for children, spouses, and parents focus on single extraordinary events such as birth, adoption, and a serious health condition despite the fact that most conflicts between family and work involve much more ordinary events.

BIBLIOGRAPHY

Cantor, David; Jane Waldfogel; Jeffrey Kerwin, et al. 2001. Balancing the Needs of Families and Employers: The Family and Medical Leave Surveys, 2000 Update. Washington, DC: U.S. Department of Labor.

Decker, Kurt H. 2000. Family and Medical Leave in a Nutshell. St. Paul, MN: West Group.

Family and Medical Leave Act of 1993, P.L. 103-3 (codified at 29 U.S.C. § 2612 et seq.).

Kim, Pauline T. 2004. "Symposium: Family and Medical Leave Act of 1993: Ten Years of Experience." Washington University Journal of Law and Policy 15: 1-251.

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

Schwartz, Robert M. 2003. The FMLA Handbook: A Union Guide to the Family and Medical Leave Act. 2nd edition. Boston: Work Rights Press.

                                            Julia Lamber