Panel 3: The FMLA 20 Years Later: What Have We Learned and Where Do We Go From Here?

By: Seth Nadel

 

Marcy Karin:

  • Unpaid job protective leave for defined medical reasons; available for up to 12 weeks for various reasons
  • Calls to expand FMLA shortly after it was enacted, amended for the first time in 2008 (now allows certain military family members to take time off for covered reasons relating to active duty, and for family members in the case of serious illness)
  • Grandparents and same-sex partners may qualify for FMLA if in loco parentis for a child

 

Robin Runge:

  • Advocated for changes and expansions (representing low income workers making up to 300% poverty level, so the FMLA did not affect them)
  • Key issues: (limitations) low wage workers who tend to only work for less than a year, or with 50 or fewer employees, don’t work requisite hours, not permissible reasons for needing to take leave
  • More than 50 percent of US employees working at employers where they could get FMLA, of them only 24 percent earned less than 30k a year, only 18 percent of eligible employees take it
  • Even non-FMLA leave, 75% of low income workers had no access to paid sick leave (before recent legislative change)
  • Significant movement on state level to provide paid leave to employees, first in California, New Jersey and Rhode Island (1. Provide paid leave, 2. Expand reasons to take the leave, 3.expanding eligible people by applying to companies with less than 50 employers) but not every state has these laws (“Temporary Disability Leave”)
  • City level trends post-FMLA, city ordinances requiring employers to give paid sick days depending on the size of the employer, shorter timing requirements (less than 1 year)
  • Connecticut law carving out specific low wage jobs (hospitality, service industry) which are granted paid sick leave
  • Federal Level: significant movement to amend FMLA or pass bills increasing FMLA access (almost none are ever adopted), views FMLA  as a “third rail” which is never touched (Family Act: slated to be introduced in November, modeled after Cali/NJ/RI creating new fund in Soc. Sec. system in order for employees to take time off for family or medical reasons)

Nicole Porter:

  • Represented employers as in-house counsel and large firm
  • More novel ideas: cost sharing solution (between employee and their spouse in the case of something like pregnancy), incentivize men to take leave
  • FMLA from employer’s perspective: abuses (faking a serious health condition, ¼-1/2 of all unscheduled FMLA absences unrelated to any reasonable interpretation of FMLA, risk averse employers grant leave for almost any doctor’s note, incentive to take longer leave, abuses of intermittent leave – once certified, no doctor’s note required), difficulty in administrating FMLA (tracking small increment leave, understanding and challenging “serious health conditions”, what constitutes “notice” for FMLA leave)
  • Proposal to divide FMLA into 4 categories: 1. long-term care of others (remains with FMLA), 2. long term self-care (reasonable accommodations under FMLA), 3. short term care of others (separate statute), 4. short term self-care (separate statute)

Her proposed legislation: STAA – short term absences act: 1. 10 days of unpaid absence a year, 2. Can be used for any reason (illness of self, family, medical appointments, bereavement), 3. Notice required for reasons need not be given, 4. Applies to all employees with 15+ employees, 5. Counted in half day increments

Policies: return FMLA to original purpose (originally to allow women to give birth without losing their job), distance “family leave” from the controversial short term leave for serious health condition, lead to additional reforms in the future, curb abuses (no need to take longer leaves them necessary to pigeonhole them into the FMLA), decrease in necessary record-keeping, benefits employees (no infringement on privacy, no need to choose being caring for a loved one and losing job, avoids the problem of “special treatment stigma”)

 

Joseph Lynette:

  • Defends employers, business, educational institutions in courts and admin hearings (Jackson Lewis)
  • What we’ve learned from FMLA in the last 20 years: has been inadequate for certain groups of workings (leading to aforementioned expansion of paid sick leave laws) but is still a positive law and has helped and the expanded the rights of many people
  • Revised FMLA regs in 2009 with report: the prevalence with which FMLA leave would be “taken in certain workplaces of work settings by individuals who have chronic health conditions” was a pervading problem up to that point
  • Self-care Provisions: (Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (2012)), could state employee recover from state entity that employs him by invoking one of the provisions of the FMLA that, in express terms, seeks to abrogate the states’ immunity from suits for damage? Majority says no)
  • Lively debate as to whether the self-care provisions were made to address pervasive discrimination based on sex
  • Shows Congress wasn’t thinking about self-care or reasons employees are taking leave, and currently Congress has no concrete direction as to where the FMLA should go or why

 

Rona Kaufman Kitchen:

  • Focuses critique on Bonding Leave Provision (failure to fulfill congressional goals such as eradicating gender discrimination in the workplace, helping women both work and have families)
  • Even for workers with 12 weeks unpaid FMLA leave, it is insufficient to establish bonding/attachment based on scientific, psychological evidence
  • Intention of FMLA: -address a care vacuum created by rapid entry of women into the workplace
  • Almost every other industrialized nation has paid medical leave
  • Bonding Leave Provision: to give time to bond with a newborn or recently placed foster child, applies to male and female workers alike
  • Design Defects:

(1) coverage (60% of workers, 53% of mothers, 20% of new mothers, 67% of fathers, 70% of married people, 11% of single/divorced/separated/widowed, way less than the intended amount),part time workers less likely to be covered, has a disproportionate effect on women (who are more likely to be part-time workers)
(2) Substantive Entitlement – 12 weeks insufficient (according to child development experts, evolutionary biologists, etc.) – “Bonding and Attachment Theory

  • Bonding: parent’s emotional investment in the infant, Attachment: infant’s tie to parent – baby is able to form a close attachment to mother which lays the foundation for all future relationships in the child’s life
  • State laws like California’s have increased the amount of leave new mothers take (but still only 6-7 weeks on average)
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