Abstract

The Family and Medical Leave Act (FMLA) of 1993 was introduced to allow employees to take up to 12 weeks of leave a year to provide care to their families as well as themselves. To be eligible, the employee must have worked for the company for a minimum of a year and have worked at least 1,250 hours. Companies who have at least 50 employees within 75 miles of their location must adhere to FMLA regulations. A similar law, the Americans with Disabilities Act (ADA) is sometimes confused with the regulations of FMLA. It is important that companies know the differences of each law to ensure that they are abiding by the correct regulation. Although America provides FMLA, it is one of three countries that do not provide paid leave. America has fallen behind other countries around the world for providing time for employees to take care for their family matters.

The Family and Medical Leave Act of 1993

The Family and Medical Leave Act (FMLA) of 1993 was created to the response of needs in the workforce whose demographics had changed. The prevailing demographic shift was the incursion of women into the workforce that incorporated women from childbearing to mothers of all ages. An additional concern was the aging of the workforce. The post World War II baby-boomer population was aging, so the subjects of disability leaves, medical expenditures, and insurance coverage had become a growing concern. Furthermore, there was a mounting national concern about work and family. The Act was thought to be needed to shield workers from losing their jobs when they wanted time off to address family problems as needed (Lewis, 2004).

The Family and Medical Leave Act has been a topic of vast discussions since the legislation was first introduced. Many corporations have been anxious that the law would cause them excessive manpower and financial hardship to remain in compliance. A dialogue on the history, regulations, and impact of FMLA will be presented.

History

The Family and Medical Leave Act of 1993 is a Federal Law that endured eight years of congressional debates, 13 votes and two presidential vetoes before it was finally declared a law. The Act first emerged during the Ronald Regan years in 1985 and was introduced as the Parental and Disability Leave Act. This legislation was proposed by United States Representative Pat Schroeder, a democrat from Colorado. Schroeder’s intentions were to allow parents of seriously ill children to take leave from work to care for them without the threat of losing their jobs. Under this proposal, parents were permitted to take 18 weeks of leave in a two-year time frame to take care of their ailing, newly adopted or newborn children. Additionally, under the rules, parents were additionally allowed 26 weeks in which they could return to work part time while continuing care of their children. The employee’s benefits were to continue during leave and they were to return to their previous job duties without penalty (Wimberly & Lawson, 1996).

The bill was modified in 1986 to include the authorization of leave for the care of the employee’s sick parents as well. The bill was renamed to the Family Medical Leave Act to signify the change. The new proposal provided 26 weeks of leave in a two-year period to cover the employees own illnesses and up two 18 weeks designated to take care of a family member. The bill continued to be modified during the Regan administration but faced fierce opposition by corporations and could not muster support by the President. During the remainder of the Regan years, the legislation never made its way to the House floor (Wimberly & Lawson, 1996).

During the early years of the George Herbert Walker Bush administration, democrats continued to compromise with republicans to produce a bill that was acceptable for congress. In 1990, congress had agreed upon a family leave act that would oblige employers with 50 or more employees to grant up to 12 weeks of unpaid leave based on family medical needs. Although the bill was passed through congress, the Act was immediately vetoed by President Bush on June 29, 1990 (Wimberly & Lawson, 1996).

Congress continued to team to pass a similar bill in 1992. President Bush again vetoed the bill on September 22, 1992. The senate struck back by overriding the Presidential veto while the House of Representatives voted to support the president’s position (Wimberly & Lawson, 1996). President Bush’s justification for his use of the veto was centered on his apprehensions on implementing federal leave policies on an already delicate competitive world economy. He offered to endorse an alterative family leave incentive that he had previously proposed (Bush, 1992).

Bush (1992) wrote:
America faces its stiffest economic competition in history. If our Nation is to succeed in an increasingly complex and competitive global marketplace, we must have the flexibility in our workplaces to meet this challenge. We must ensure that Federal policies do not stifle the creation of new jobs or result in the elimination of existing jobs. The Administration is committed to policies that create and preserve jobs throughout the economy — serving the most fundamental need of working families. (p.1)

The third attempt by congress to pass the Act was in 1993 when Bill Clinton was president. Unlike his predecessor, Clinton supported the bill. The bill was signed by the president into law on February 5, 1993. The Family and Medical Leave Act of 1993 became enforceable on August 5, 1993 (Wimberly & Lawson, 1996).

FMLA Overview

The Family and Medical Leave Act (FMLA) of 1993 provide eligible employees with up to 12 weeks of unpaid, job-secure leave per year. The FMLA allows working Americans to take responsibility for family life outside by allowing a reasonable period of unpaid leave time for certain medical and family reasons. Under the FMLA the employee will maintain employer health care coverage as if the employee were still working and not taking leave (Wimberly & Lawson, 1996).

Eligibility

For an employee to be covered under the FMLA they must work for an employer that has 50 or more employees within 75 miles of the location of the business. Employee eligibility is determined by the number of hours and length of time that the employee has put in with their current employer. An employee must have worked at least 12 months for the current employer and have at least 1,250 hours worked within a 12-month period (Employment Law Information Network, 2004).

There are exceptions to the rule where 50 or more employees are required to be covered by FMLA. All federal, state, and local government organizations must permit employees to be able to use FMLA regardless of how many employees are within the organization. Public schools and other public education institutions must also offer FMLA leave to employees (Employment Law Information Network, 2004).
The FMLA allows up to 12 weeks of leave for the following situations (Employment Law Information Network, 2004):

1. Care of spouse, child, or parent with a serious health condition.
2. Employee’s own serious health condition
3. Birth of a child and care for the child within the first year after birth
4. Adoption of a child and care for the child within the first year of adoption

A spouse is identified by FMLA as a significant other that is legally married according to the laws of the employee’s state. Common law marriages recognized by the state are also applicable under FMLA. This can also be interpreted as same sex partnerships in some states. A parent is defined as the genetic parent of an employee or someone who was the custodian of the employee when they were a child. This includes grandparents or any other person that may have raised the employee in the absences of their biological parents. An in-law is not considered a parent and not covered by FMLA (Wimberly & Lawson, 1996).

Children are designated as biological children of the employee, adopted children, step children, or children in legal custody that are under the age of 18 or over 18 with a disability. The mother and father of an expected birth of a child can also qualify for FMLA. The leave may be granted before the birth of the child and after the birth of the child to provide care. Additionally, the mother may take intermittent time off for any pregnancy complications that have been documented by the health provider. Likewise, parents are eligible to take leave in the first year of an adoption of a child into the home and during the process of such an adoption. Leave may also be taken intermittently as needed as the procedure of adopting my require employees to be away from work. The employee may take leave for their own serious health condition if it renders the employee unable to perform their duties according to their job position under FMLA regulations (Wimberly & Lawson, 1996).

Additional qualifications

The definition of a serious health condition is laid out in FMLA regulations. Serious heath conditions are described as illnesses, injuries, impairments or any other physical or psychological condition that requires assistance or suppresses a person from a functional lifestyle. This includes the care needed after a major operation or medical conditions that are under the direct supervision of a physician where the individual would not rehabilitate without care. Serious health conditions are also a condition where consecutive three days or more are required for care. Pregnancies are considered a serious illness when prenatal care is needed. Treatments for substance abuse are also covered under FMLA. This includes treatments for the employee or a spouse or parent who may need support (Wimberly & Lawson, 1996).

The employer has the right to call for the necessary certification statements from the health care provider that will supply the justification required within the boundaries of FMLA. Heath care providers include medical doctors of medicine, dentists, psychologists, and optometrists that are currently practicing their respective occupation. Nurse practitioners and midwives that are authorized by law are also considered authorized health care providers if they are making recommendations within the prenatal spectrum (Wimberly & Lawson, 1996). Health care providers that are recognized by the company or the company’s health plan are also eligible under the law. Authorized providers are extended beyond the United States and include any health provider that is legally recognized and practicing in their residing country (AFSCME, 1998). Finally, Christian Science practitioners who are authorized by the First Church of Christian Science in Boston, Massachusetts are also considered legal providers (Wimberly & Lawson, 1996).

Employer Rights and Responsibilities

The employer has the right to be given 30 days notice from the employee of any FMLA leave that may be anticipated. In the account that the necessity for leave is not foreseeable, then the employee must notify the employer as soon as possible. The employer may also call for reasonable updates from the employee of their intentions to return to work. Furthermore, in the case that employee is taking time off because of their health; the employer may request certification from the heath provider that the employee is fit to return to work (Employment Law Information Network, 2004).

The employer may also designate their definition of a 12-month period. There are four allowable ways that an employer can define this period. The first allows a company can use is the calendar year which is defined as January through December. An employer can also use a set 12-month period from the date that the employee started with the organization. The third alternative a company may use is to start the 12-month period from the first day that the employee initially used FMLA leave. The final option for an employer is to calculate the 12-month period backwards from the day the employee first used FMLA leave. The employer may switch between the four options available to accommodate the needs of the company. To do so, the employer must give a minimum of a 60-day notice before executing the change. Employees remaining leave time must be calculated to correctly transpose to the new timeframe (Wimberly & Lawson, 1996).

The employer has the option to deplete FMLA leave for each day that the employee receives paid medical time off such as short-term disability. However, an employer must not charge FMLA leave during such periods where a compulsory or forced plant shutdown is in effect. Leave may continue to be charged at the end of the shutdown (Wimberly & Lawson, 1996).

The employer may also exercise the right to limit married couples to a combined 12 weeks leave that is designated for a birth when both members work for the same company. This regulation applies regardless if the couples are working at the same location or otherwise. This holds true when adoptions are the reason for leave. Each individual spouse is entitled to their remainder of FMLA leave for additional reasons (Wimberly & Lawson, 1996).

The employer may call for that all accumulated paid time off be used as a part or the full 12 week of employee leave, making the 12 weeks of FMLA the bare minimum amount of time that an employer may offer for leave. The employer must allocate the leave permitted to the employee as FMLA leave to protect the rights of both the employee and employer (Schmidt, 2001).

During the employees leave under the FMLA the employer must retain the group health care coverage under the identical circumstances as if the employee were still working and not on leave. Furthermore, included to protect the employee’s rights is the restoration of the employee to their former job or one that is of similar status. Employers must not retaliate against an employee in any fashion for using their FMLA leave. Employers can not claim that allowing FLMA leave to an employee will cause undue hardship for the company (Schmidt, 2001).

The United States Department of Labor mandates that all employers retain and present the Family and Medical Leave Act Poster (WH 1420) in a noticeable place where employees and candidates for employment can examine it. This poster encapsulates the major requirements of FMLA and informing employees how to register a complaint. This poster should be displayed at all locations although there may not be any any eligible employees (Department of Labor, 2003).

Employee Protection

The Family Medical Leave Act is enforced by the Wage and Hour Division of the U.S. Department of Labor. Employees who may have a claim that their company may have violated FMLA regulations may contact the agency directly. Employees are not required to exhaust their employer’s complaint system to file a complaint. Employees have two years after the alleged violation to file and complaint and three years if it was a willful violation. A private lawsuit can also be filed to recover damages (AFSCME, 1998). The following damages can be recovered by the employee if a violation is found (Employment Law Information Network, 2004):

• Back pay, in which is comprised of wages, salary, and benefits that were lost during the time frame of inequity.
• Monetary losses, these are the tangible losses incurred as a direct consequence of the violation. This includes the expenditures of providing care up to 12 weeks of wages.
• Liquated damages, which is equal to the sum of lost wages plus interest. These damages may be reduced or abolished if the employer can demonstrate that they acted in good faith.
• Attorney fees can be recovered by the employee.
• Injunctive relief, this is where the employer has practiced deliberate unwarranted actions to discriminate against the employee. The employee can be restored to their pervious job and the company is barred against any retaliation against the worker.

Americans with Disabilities Act

There is a similar law that originations must be aware of that protects disabled workers. This law is known as the Americans with Disabilities Act (ADA). Companies must be aware of the similarities and differences between FMLA and ADA to determine which circumstances follow the correct legislation (Schmidt, 2001).

Title I of the Americans with Disabilities Act became in effect on July 26, 1992. ADA prohibits discrimination against people with disabilities in employment and defines certain rights of disabled workers in the workplace. Unlike the FMLA, ADA is a civil rights statue that safeguards disabled employees from prejudice from acquiring and sustaining employment and forces employers to make reasonable accommodations to the qualified employee (Schmidt, 2001). Employers must be aware that ADA not only covers protects current employees as with FMLA but potential employees that are applying for employment (State of Florida, 2003). ADA is not restricted to offering leave time as with FMLA but offers supplementary safeguards. ADA mandates that employers that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or previous calendar year be subject to the law (Schmidt, 2001).

An individual qualifies for ADA if she or he has a physical or psychological impairment that significantly limits one or more of that individual’s life functions. This also includes anyone who has a documented history of such impairments. Additionally, individuals are qualified if they are considered to have an impairment. Pregnancies and temporary impairments are not included in the scope of ADA (State of Florida, 2003).

To initiate the process, an employee must inform their company that they need an accommodation (State of Florida, 2003). ADA requires the employer to actively engage to provide accommodations to the approved worker. Additionally, ADA contrasts with FMLA in the following ways (Schmidt, 2001):

• ADA provides the eligible worker with an unlimited amount of obligatory leave time when it is an accommodation.
• ADA does not require a minimum number of hours or months as a stipulation for eligibility.
• ADA covers the employee only and is not intended to cover the workers family members.
• Employee may return to work beyond the 12 weeks designated by FMLA and must be reinstated to the same or similar position and salary.
• Under ADA, the employer is not required to preserve employee’s benefits during approved leave.

In dissimilarity to the FMLA, the ADA provides an undue hardship defense for the employer. If the employer can establish that providing exceptionally expensive accommodations to the employee would be detrimental to the finances or operations of the company, the employer may not be required to perform these accommodations (Schmidt, 2001).

An employer can not make an individual undergo a medial examination before an offer is made to the employee concerning a position. However, an employer can declare that the offer is conditional on the results of the tests if the same standard is held for all employees in that position. Current employees can be asked to take a medical exam to determine if they can perform the vital duties of the position. Medical exam can also be used to determine if the employee needs the accommodations that are requested (State of Florida, 2003).

FMLA Cases

Congress enacted the Family Medical Leave Act to balance employees’ home life and workplace demands. But the often-burdensome regulations of FMLA have led to litigations through our judicial system. During 2003, 39,425 FMLA cases were concluded resulting in $212,537,554 in back wages paid to employees and $9,993,041 in civil penalties assessed to companies (Department of Labor, 2004).

There is one lawsuit that has been the focus of much debate. In 2002, Ragsdale v. World Wide Wolverine was decided by the Supreme Court. The case is presented as follows (Cornell University, 2003).

The company, World Wide Wolverine approved Tracy Ragsdale for 30 consecutive weeks of leave for cancer treatments under the Wolverine leave policy. At the end of seven months of leave, Tracy Ragsdale asked for an extra 30 days or part time work under FMLA. Her request was denied. When Ragsdale did not come back to work after her initial leave request she was terminated (Cornell University, 2003).

Ragsdale filed a lawsuit, insisting that Wolverine in no way informed her that her 30 weeks of leave would be designated as FMLA. She insisted that she was entitled to an additional 12 weeks under the Department of Labor regulation 29 C.F.R. 825.700(a) (Cornell University, 2003).

The Ragsdale argument was eventually listened to by the United States Supreme Court and determined on March 19, 2002, under an infringement of FMLA. The Supreme Court rejected the argument by Ragsdale maintaining that the penalty provision that permits employees’ additional leave when employers fail to inform employees their leave would be designated as FMLA, was unfounded. The court established that company did fail to inform Ragsdale in advance that her leave would be considered as FMLA and their verdict sustains the rule that employers must continue to follow the obligation of notification. Furthermore, the Supreme Court evaluated all statutory penalties concerned in the Department of Labor’s guidelines for providing individual notice and resolved that this penalty was disproportional to the original intentions of Congress. The court regarded that Ragsdale’s serious medical circumstance would have kept her from returning to her job whether or not she was informed of the FMLA entitlement. It was left for interpretation that in other cases the up-front notice may weigh in how an employee would decide to control their rights in taking the leave (Cornell University, 2003).

The Supreme Court decision does not impede or overturn the individual notice obligation from the United States Department of Labor. Furthermore, the judgment does not amend any of the FMLA statutes. However, it succeeds to place in doubt the issue of automatic penalties for any originations who fails to abide by the regulation in question. This ruling grants an employer who inadvertently breach a Department of Labor directive for FMLA guidelines, a chance to sustain their argument without any additional fines or consequences (Brown, Mero, & Robinson, 2003).

Statistics

In 2000, the U.S. Department of Labor performed a survey that was sent to various employers and employees. The survey was focused on the impact and opinion of the then close to decade old FMLA law. From 1993 to 2000, over 35 million covered and eligible personnel took advantage from exercising leave for family and medical reasons (FMLA Survey and Information., 2002).

The assessment suggested that more than 80 percent of eligible employers, the Act had a positive effect, or no evident effect, on business efficiency, profitability, or growth. This contrasts with the companies’ initial beliefs when the Act was originally presented to the public. Moreover, two-thirds of eligible employers stated that, overall, conforming to the Act was very or somewhat effortless (FMLA Survey and Information., 2002).

The survey further revealed that more than four in five employees in the study agreed that every worker should have up to 12 weeks of unpaid leave in a year for family and medical troubles. Despite this, the reality is that more than half of the workers who received family or medical leave were anxious about having sufficient money to pay their bills. This may clarify why 88% of those who wanted time off but did not use it stated that they would have taken FMLA leave if they could have received some compensation during their leave (FMLA Survey and Information., 2002).

It is projected that 40% of workers expect to need family leave within the next five years. This may lead to pleads to amend the FMLA regulations to accommodate the requests of workers. The survey suggested that Americans endorse the expansion of Unemployment Insurance (UI) or Temporary Disability Insurance (TDI) to supply paid family and medical leave. 79 percent of Americans favor supplying family leave insurance through expanding UI or TDI (FMLA Survey and Information., 2002).

Conclusion

In this fast-paced modern world, daily demands of careers have taken time away from parent’s duties of raising a traditional family. Despite the initial resistance to the Family Medical Leave Act by corporations and politicians, this law is now considered an important step to protect the value placed on a family. However, this should be viewed only as one small step to protect families in the United States.

Out of 158 countries around the globe, 130 have leave policies for parents, of which 98 percent have paid leave. Merely three, the United States, Ethiopia and Australia, present unpaid leave. The question if the United States will ever supply any paid leave does not to seem to be expected soon (FMLA Survey and Information., 2002). Nevertheless, as the world seems to place importance on the significance of family, Congress may possibly have to mull over strengthening current FMLA regulations or establishing new laws to keep in tempo with the remainder of the world governments.

As the leader of the world, America should be assertive in being the world leader in family values as well. This country should set the standards for the world to follow our footsteps instead of lagging behind the rest of the world. America should continue to improve measures to protect families while finding a balance with our careers.

References

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Brown, J. A., Mero, N. P. & Robinson, R. K. (March 2003). Employer penalties for failure to provide individual employee notification under the family and medical leave act: “Clarifications” following ragsdale v. wolverine worldwide, inc. Employee Responsibilities and Rights Journal. 15(1). p. 11.     New York. Retrieved on July 15, 2004 from ProQuest.
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U.S. Department of Labor (2003). Family and medical leave act (fmla) poster. Retrieved July 15, 2004 from http://www.dol.gov/esa/regs/compliance/posters/fmla.htm
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Wimberly & Lawson (1996). The family and medical leave act of 1993: A practical guide for human resources professionals. Retrieved July 8, 2004 from http://www.wimlaw.com/fmla.htm