Why the Current FMLA Policy is not Enough?
Annette Fininen
Prof. Davenport
ENG 215
May 26, 2013

Why the Current FMLA policy is not Enough? The dynamics of the American family have changed. No longer is a working father, stay at home mother, and kids considered the norm. Even the definition of “family” has changed dramatically. Changes in the American “norm” raise an important question, “Should the Family and Medical Leave Act be changed?” to meet our communities evolving needs. In the United States, the current Family and Medical Leave Act (FMLA) only provides up to twelve weeks of unpaid leave, but compared to other counties with similar policies the act does not have enough coverage to protect the average worker and should be changed. A woman walks into her human resources office crying, asking to speak to someone. She is currently on FMLA leave to care for her sick child who has been diagnosed with leukemia. She is a single parent with two other children at home to care for as well. Even with insurance coverage, the bills are mounting because FMLA is unpaid and she has exhausted all of her personal time off (PTO). With her steady income cut-off, she is concerned how she will pay her bills. She has no close family to turn to for support and does not qualify for government assistance. Her story is just one example. According to the United State Census, in 2010 single parent households comprised about 9.6 percent of the total U.S. household population. There are about 10.4 million single-mother families and 2.5 million single father families. About 5.7 million, or 8 percent of the total, live in a household that include a grandparent. Not to mention, the growing Baby Boom generation has created a sandwich generation who not only have the responsibility of raising their own children but being caregiver to their parents as well. No matter the makeup of the American family, finances are vital in the current economic crisis and these statistics are extremely important when contemplating changing the current FMLA legislation. Created in 1993, FMLA entitles eligible employees up to 12 weeks of unpaid, job-protected leave from their jobs every year for specified family and medical reasons. It was enacted to aid employees in balancing work and personal obligations, without having to choose between the two. FMLA only applies to employers that are one of the following:1) a private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year including a joint employer or successor in interest to a covered employer. 2) Public agency, including a local, state, or Federal government agency, regardless of the number of employees. 3) Public or private elementary or secondary school, regarding of the number of employees it employs (Department of Labor [DOL], 2013). For an employee to be eligible for FMLA they must work for a covered employer, have worked for the employer for at least twelve months, have at least 1,250 hours of service for the employer during the twelve month period immediately preceding the leave and they must work at a location where the employer has at least fifty employees within seventy-five miles. An eligible employee may take up to twelve workweeks of leave in a 12-month period for one or more of the following reasons: The birth of a child, or placement of a child from adoption or foster care, to care for a spouse, child or parent who has a serious health condition, for an employee’s own serious health condition that makes them unable to perform the essential function of their job, or for any qualifying necessity arising out of the fact that a spouse, child or parent is a military member on covered active duty or call to covered active duty status. In a current amendment to the act, an eligible employee may also take up 26 work weeks of leave during a single 12-month period to care for a covered service member of the armed forces, with a serious injury or illness. The single 12-month period for military caregiver leave is different from the 12-month period used for other FMLA leave reasons. In certain cases, such as when leave is need for planned medical treatment (i.e. chemotherapy); employees may take FMLA leave on an intermittent or reduced schedule basis. Employees must follow certain requirements for requesting leave and provide information for their employer to rationally determine whether the FMLA may apply to the leave request. When foreseeable, employees must request leave thirty days in advance or as soon as possible when it is not. Although FMLA is unpaid it does cover job-protection for eligible employees. Upon return from leave, an employee must be restored to their original or comparable position with equivalent pay. If the leave is for a personal medical reason the employee must also provide a medical certification, proof that they are able to return to work and perform their essential job functions. The employer cannot retaliate against any protected employee. Under HIPAA (Health Insurance Portability and Accountability Act) the employer must also ensure that the employee’s medical information or reason for leave is protected, and that only key members of the company have access to the information. The Wage and Hour Division of the Department of Labor is responsible for administering and enforcing the FMLA for most employees. Although the current FMLA legislation does offer many benefits, there are still issues and problems that need to be addressed. FMLA currently only applies to business with 50 or more employees. According to the U.S. Small Business Administration (SBA) (2013). “Small enterprises account for 52 percent of all U.S. workers”(para.1)., leaving the 19.6 million Americans who work for companies that employ fewer than 50 workers without mandatory job protection in the case of a family emergency. This is a problem. In this case, work-life balance is sometimes non-existent due to workers’ fear that they might lose their job. Especially during a recession, people will sacrifice taking care of personal health concerns to hold on to needed employment. A second issue with FMLA is the current act only authorized twelve weeks for parental leave. Twelve weeks can be an eternity when waiting for something, but is it enough time to bond with a child? When starting a family, whether through natural childbirth, foster care or adoption, most women would disagree that the length of time off provided by the FMLA is adequate. Even if eligible, most men rarely take the full twelve weeks. Opting to take only a few days and get back to work to provide for the family. Social gender roles have enforced this behavior. Central European countries have the longest parental leave regulations in the world. Sweden leads the pack with some of the most generous parental leave laws in the world. The government not only considers the mother, but the father. Parents are allocated a total of 480 days per child, which can be taken at any time until the child is 8-years old. Both parents share these days, although 60 are allocated specifically to the father. Parents are entitled to 80 percent of their wages, although this is capped at a certain level, this cost is shared between employer and the state. Knowing it would raise taxes to help off-set the cost, would the average American citizen approve or vote for such changes? Another problem is the businesses, with 50 more employees, under the federal statutes must deal with the added cost that comes with FMLA. Employers complain that the current FMLA guidelines are too strict and cost prohibitive. Medical privacy is an obvious issue related to the added cost. Employers must keep medical information separate from the employee’s regular employment files, adding to the cost of needing additional space, and secure filing cabinets. Administration and tracking is another issue. The time and manpower required to not only administer, but track employee FMLA and medical certifications are expensive and time consuming. With the rise of employees FMLA misconduct and abuse; many companies chose to outsource this part of the business, to avoid potential lawsuits and punitive cost. To separate private and personal medical information and to reduce the administrative burden and eliminate the need for additional training they must be careful when choosing a vendor, because the employer is still liable for the vendor negligence. So, should the Family and Medical Leave Act be changed? How would changes affect American society at large? If the current FMLA is not changed in the future, what is the effect? These are all important questions that need to be addressed when concerning this topic and highlights the reasons for change. The United States is the only industrialized nation not to mandate paid leave for mothers of newborns after Australia passed a parental leave law in 2010. It appears education is not the only field in which American is falling behind the rest of the world. Advocates are working to get a national law passed while some states are expanding family leave policies. Companies understand that keeping current employees happy makes more sense than replacing them, which generally costs somewhere between 50 and 200 percent of a worker's salary. Some companies are voluntarily making changes internally with their policies by offering employees benefit enriched programs with lucrative paid leave and additional time. In the United States we are at an advantage when it comes to finding solutions to these problems. Because of our democratic society, we have the opportunity to voice a need for change in the current FMLA polices. Businesses can affect change through direct communication with policymakers. One way this can be accomplished is through a method called eye witness testimony. Chief executive officers (CEOs) and other executives can provide information in the forms of facts, data, or anecdotes to educate and influence government leaders. In public congressional hearings, business leaders can influence whether legislation is introduced, changed, and implemented. Lobbyists and social action committees can do the same for the general public. In the United States, the current Family and Medical Leave Act (FMLA) only provides up to twelve weeks of unpaid leave, but compared to other countries with similar policies the act does not have enough coverage to protect the average worker and should be changed; one solution would be to provide families with additional paid parental leave. Many solutions to the problems of current FMLA regulations are possible when you have a voice to express the need for change and the benefits of working examples in other countries. The most important part that lobbyists and social action committees need to focus on is making a change to the parental leave portion of FMLA. Not only extending the leave, but ensuring pay is included would help the United States on the global stage with this issue. This solution is at the forefront in changing the current FMLA regulations. One advantage of changing the current parental leave portion of FMLA is the bonding time a parent would spend with their child. Both parents, when possible, can play an integral part. The first two years of a child’s life is a vital period of human development. During the first few months, parents form a secure attachment bond (non-verbal emotional cues) with their child. This type of bond is very important because it teaches the child to trust parents and others. The baby also learns how to have a healthy sense self-worth and security. This bonding time supports the child’s overall health: physical, emotional and psychological. Language development can be stimulated by bonding and human contact. If a child at a young age is not exposed to a language, through bonding and human contact, they will lose their ability to learn that language (Lero, DS., 2013). The early years of a child's life sets the stage for the rest of their life. Healthy bonding produces healthy, loving, productive adults. A second advantage is that the parental leave portion of the current regulations is relatively easy to target and fix. For example, when the need arose to make changes to the military leave portion of the FMLA a congressional hearing was held. In this hearing, on September 18, 2007, Christine Vion-Gillespie an Employee Relations and Compliance Manager for the SAS Institute, Inc. spoke before a congressional hearing regarding FMLA and leave for military families (Congressional Testimony, 2007). She expressed the need for need for change because of the heightened military status at that time. In January 2007, President George W. Bush increased of the number troops in Iraq by 20,000 soldiers, many of whom were reservists. He also extended the tour of duty for most troops already in the area. Christine provided facts on the issues and challenges human resources professionals were facing with employees missing time from work, due to their spouses and family members being called to active duty or their tour being extended. Also there was a growing number of wounded soldiers returning home requiring extra at home medical care. Christina suggested that Congress consider the proposals to expand FMLA leave coverage for military families to address the problems both employers and employees were encountering with FMLA. In 2008 the FMLA was amended to provide employees with family members serving in the armed forces, National Guard and reserves with FMLA leave for reasons related to their family members’ military service. This amendment provided 26 work weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’ s spouse, son, daughter, parent, or next of kin. This part of the act is called the military caregiver leave. In 2010 the FMLA was again amended, expanding the military-related leave protections. The FMLA was also amended to include a special eligibility provision for airline flight crew employees. A congressional testimony hearing as mentioned above is one example of how we can affect changes with some problems of the current act. Appeals can be made directly to Congress for amendments to lengthen the allotted time an employee can request, change eligible standards to include businesses with less than 50 employees, or change the leave to be fully or partly paid instead of un-paid. As shown in the case of Christian Gillespie and military leave, when Congress is given a specific problem in current federal regulations, they can be pushed to make changes. The third advantage to changing the current parental leave regulations is that extended paid parental leave will protect the United States’ status as a recognized leader in the global economy. The United States is one of only four countries that have no national law mandating paid time off for new parents. The other countries are: Liberia, Papua New Guinea, and Swaziland (Huffington Post, 2013). Certain state laws take precedence over federal laws (e.g. minimum wage), so some states do offer paid leave, which differ from the federal laws in this country (DOL, 2013). For example, California does mandate paid family leave, including parental leave for same-sex partners. However, 163 countries provide paid leave for women with the birth of a child. These other countries have varying degrees of paid leave, but Central European countries have the longest parental leave regulations in the world. Parental leave is important to both the mother and father. Experts in assorted fields of childhood devolvement such as early childhood, learning disabilities, elementary and preschool education all agree on the importance of the parent/child bond. Numerous studies have shown the more quality time a mother and/or a father spends with their children; especially early on, the greater the benefit later in life (Baird, M., & Whitehouse, G. (2012). Maybe the United States could take a page out of Sweden’s book, whose government and employers share the cost of the extended leave. Australia has an 18 week paid parental leave system which is publicly funded and provides the federal minimum wage rather than a percentage of the primary caregiver's salary. It is not available to families where the primary caregiver has an annual salary above $150,000 per year. In the United Kingdom, female employees are entitled to one year of maternity (or adoption) leave, 39 weeks of which is paid, with the first six weeks paid at 90% of full pay and the remainder at a fixed rate (Baird, M., & Whitehouse, G. (2012). Our neighbors to the north, Canada, provide 35 weeks to be divided between two parents. This is in addition to 15 weeks maternity leave. In Canada, their leave program is paid for by the employment insurance system, which the workers pay the premiums to fund. There is no government contribution to this fund. These are just a few examples of changes which could be implemented in this country (Huffington Post, 2013). In conclusion, there is no quick fix to any of the problems with the current FMLA, but there are realistic solutions. Fixing the parental leave portion of FMLA would benefit both employers and employees alike. When an employee has a decent work-life balance, it benefits the whole family. Children do better in school, and there is less stress on a marriage. A happy worker is more productive and less likely to miss time from work or quit. This in turn benefits the company, by giving it a competitive edge on the global market. This would stimulate the economy and provide more jobs. If the United States wants to remain a global leader, how can it not afford to make changes to the current FMLA? “Keeping up the Jones’s” is a familiar term in the United States, but it can be quite expensive trying to equal what your neighbor is doing and obtaining. Even though the United States does not want to lag behind the rest the world, we are a capitalist nation at heart. Big business has always been the driving force behind this country. Most Americans will do almost anything to get out of paying taxes. The country was founded on taxation rebellion. Does the “Boston Tea Party” ring any bells? In the United States, the current Family and Medical Leave Act (FMLA) only provides up to twelve weeks of unpaid leave, but compared to other countries with similar policies the act does not have enough coverage to protect the average worker and should be changed; one solution would be to provide families with additional paid parental leave, although there could be expensive disadvantages to this solution. The first disadvantage of trying to change the parental leave portion of the current FMLA is the length of time it might take to have the bill introduced before the House and Senate. The path to getting a bill through Congress and hopefully passed into law can be a very complex procedure. Sometimes a bill can be expedited through Congress, if it is considered very important that it be passed. Most Americans do not know who their local, state, or federal representatives are, nor the steps to enact change. They don’t understand the fundamental steps necessary to have a bill introduced or how a bill becomes a law. I still remember how I learned the process through School House Rock’s video “ I’m Just a Bill. (School House Rock, 2013). If both the House and the Senate does pass the bill, the current president can still veto part or all of the bill. Lobbyists and social activist groups can help the general public get items which are important to them in front of Congress, and grease the squeaky wheel to expedite the passing of such bills. The major disadvantage to changing the current parental leave portion of FMLA is cost. How will incorporating financial compensation and a lengthier time-off period for the parental leave portion of FMLA be funded and by whom? This is the question that the decision makers of most businesses under the current regulations will ask. The economy is in an ever changing and challenging state, and organizations’ leaders are concerned with the expense of everything. If the total cost of changing the parental leave was placed on the businesses, the changes may not go over so well. The primary goal of a business is to enhance corporate value, increase profits for their shareholders, and expand their client base. Many companies are on a very conservative budget, especially when it comes to spending money on non-revenue producing items (i.e. benefits compensation programs). These programs can include, but are not limited to; medical, life, dental, disability, unemployment and worker's compensation insurances, vacation pay, holiday pay, and maternity leave. As mentioned before, the American public has an aversion when it comes to paying or to any increase of taxes. If the total cost of changing parental leave, were to fall on the government, the added burden of how the paid parental leave would be funded might cause more problems than the current unpaid parental leave. One way to resolve this matter is to look at how some of the other countries handle the cost. In Sweden for example, the paid parental leave is capped at a certain leave and the cost is shared between the businesses and the government.

According to the Huffington Post, the graph above illustrates the drastic different between the United States and the rest of the world when it comes to parental leave and the importance placed on time needed for family bonding, including the father. Should the current parental leave portion of FMLA be changed? Without a doubt, the advantages far out-weight the disadvantages by a long shot. The advantages of changes to the current regulations include; the additional time parents, both mothers and fathers, would have with their children. This early bonding time is extremely important in developing healthily, happy adults. Under the right circumstances, in the United States the law can be easily changed. To continue to be a global leader the United States must make changes. The two main disadvantages are related to the process of regulation changes and the expense association with that change. The cost of the change can be shared between the employers and the government. Lobbyist and social activist groups can help expedited the law changing process. The parental leave in the United States currently only provides twelve weeks of unpaid leave under the Family and Medical Leave Act (FMLA), but compared to other counties with similar policies the act does not have enough coverage to protect the average worker and should be changed.

References
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Congressional Testimony. (2007, September). Family and Medical Leave for Military Families Christine Vion-Gilespie Retrieved from http://elibrary.bigchalk.com
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