Anatomy of a Federal Program: The Family and Medical Leave Act Revisited

David Macaray

In his CounterPunch interview last June, Robert Reich (Secretary of Labor during Bill Clinton’s first term), noted that one of the things he was especially proud of was passage of the Family and Medical Leave Act (FMLA), which became law on August 5, 1993.

A singularly pro-family piece of legislation, the FMLA allows employees to take a maximum of 12 weeks unpaid leave during a 12-month period to tend to the birth or adoption of a child, care for a seriously ill parent, or tend to a serious personal health condition.  The 12 weeks need not be consecutive, and to be eligible an employee must be on the payroll a minimum of one-year and have worked at least 1,250 hours.

Because the leaves are unpaid, and because the reasons for missing work are eminently reasonable, and because Europe has had a similar arrangement in place for decades, who could possibly object to it?   Answer:  the Republican Party, the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), and the National Federation of Independent Business (NFIB), among others. 

Not only did these groups oppose the FMLA (as they earlier had opposed the ADA, EFCA, OSHA, national health care, raising the minimum wage, etc.), they spent millions of dollars lobbying against it, claiming that its enactment would cost American businesses billions of dollars and irreparably damage the economy. 

With the Republican Party poised to take control of the House of Representatives, let’s review some of their objections.

OBJECTION:  The FMLA will destroy mom-and-pop businesses that rely on a handful of employees and operate on a shoestring—enterprises like independent real estate offices, bakeries, florists, restaurants, beauty salons, auto repair shops, etc.

FACT:  No employer with less than 50 employees was even eligible.  The Chamber of Commerce knew this, but nevertheless tried to poison the well with hysterical scare tactics. 

OBJECTION:  It will create disruption if not chaos, with employees abruptly announcing that they were taking off work, leaving bosses in the lurch, jumping through hoops trying to replace them.

FACT:  Employees are required to give a minimum of 30 days notice when applying for a leave of absence, and an employer has the right to request certification from a doctor to verify the medical basis for any leave.

OBJECTION:  There are obvious loopholes.  Husbands and wives working for the same employer represent a double-whammy, further restricting an employer’s ability to conduct business.

FACT:  Spouses who work for the same employer cannot both take 12 weeks off for any of these designated reasons—birth of a child, adoption of a child, caring for a parent with a serious health condition.

OBJECTION:  There are too many hidden costs associated with the FMLA.  For example, even with the time-off being unpaid, employers are still required to maintain their fringe benefits.

FACT:  While employees on leave do maintain their health and pension benefits, they are required to continue paying their regular portion of all contributions (even when not drawing an income).

OBJECTION:  Because of all the potential problems—both known and unknown—the FMLA is clearly too ambitious, too intrusive, and too unwieldy a government program to be workable. 

FACT:  Not only has Western Europe, Eastern Europe and Latin America practiced their own versions of the FMLA for decades, their maternity leaves are partially or fully paid.  Indeed, the only Western country that does not mandate paid maternity leave is the United States. 

FACT:   The Czech Republic offers partially paid maternity leave for the first three years of a child’s life; Sweden full pay for 16 months; Bulgaria full pay for one year.  Ukraine, Switzerland and Poland provide 4 months at full pay;  Latvia offers 3.5 months at full pay (and the Chamber of Commerce goes ballistic over unpaid leave??).

FACT:  A random sampling of the many countries that offer paid maternity leave—some for up to a year or longer—reveals how extensive the practice is:  Albania, Belarus, Cyprus, Lithuania, Estonia, Bolivia, Argentina, Guatemala, Honduras, Chile, Nicaragua, Mexico, Paraguay, Peru and Haiti (yes, Haiti).

FACT:  In the 17 years since enactment, several U.S. states have actually voluntarily lowered the 50-employee minimum requirement.  Despite opposition from pro-business lobbyists, American companies have found, once the smoke cleared, that the FMLA was extraordinarily manageable.

FACT:  Maine has voluntarily lowered the threshold for eligibility to 15 or more employees; Minnesota has lowered it to 21, Oregon to 25, Vermont to 10, and Washington D.C. to 20.

FACT:  Several states (Wisconsin, California, Connecticut, New Jersey, Hawaii, et al) have expanded FMLA eligibility.  Instead of being restricted to parents and children, some states now include grandparents, step-parents, in-laws, civil unions, domestic partners, children of domestic partners, and in-laws of domestic partners.

Obviously, there’s no shortage of irony here.  Besides the irony of a country as distressed as Haiti offering paid maternity leave and the U.S. not offering it—and the irony of having what was depicted by lobbyists as an “intrusive” federal program being voluntarily expanded upon by the states—there’s that other bit of irony….the one involving family values. 

Although it’s the Republicans who promote themselves, ad nauseum, as the “family values Party,” it took a Democrat to get it done.  Surely America hasn’t forgotten that Ronald Reagan and George H. W. Bush both vetoed earlier attempts to pass the same bill.  While we still lag behind Haiti, at least we’ve made some progress.

http://www.counterpunch.org/macaray12022010.html