Bridging the gap between work and family: accomplishing the goals of the Family and Medical Leave Act of 1993.

• Author: Hayes, Emily A.

Upon signing the Family and Medical Leave Act (FMLA) on February 8, 1993, President Clinton declared that "American workers will no longer have to choose between the job they need and the family they love."(1) Clinton's remarks reflected the legislative intent of the Act: that the FMLA would help American families and society deal with the issues that had arisen as more women, especially mothers, entered the work force. It would, in the words of the Act itself, allow employees "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity."(2) Mothers and fathers would no longer have to be concerned about losing their jobs or their work status to take time off for the birth of a child; parents would no longer have to worry about who would care for a sick child, as they would be available to do it themselves.

The Act, however, has not proven to be quite the panacea that it was intended to be. As we enter the twenty-first century and the seventh year of the Act, it is evident that the FMLA is not achieving the goals expressed at the time of its passage. As case law, commentary, and experience demonstrate, change is needed in order to fulfill those goals. This could be accomplished through two primary means. First, the court system can effectuate congressional intent by construing the Act's provisions broadly. Second, in three main areas where aid through judicial interpretation is not possible, legislative action is needed: the provision of paid leave, an increased length of leave, and expanded coverage to include more employees and employers. Although legislation in each or any of these areas would be valuable, each solves a separate flaw of the Act, and so enactment of all three would, in concert, be invaluable. The provisions of early versions of the Act serve as a valuable guide in accomplishing these changes.

This Note concentrates primarily on the issues surrounding leave at the time of the birth or adoption of a child. These particular provisions have much in common with the other reasons for leave, including time off to care for a sick child or parent, especially in their requirements and guarantees. However, as this Note demonstrates, the time surrounding childbirth is crucial to both parents and child, and so it is imperative that all new parents profit from the guarantees of the FMLA during that period. This Note suggests ways to accomplish the goal of Congress at the time of enactment of the FMLA, to minimize work-family conflict for American parents.

Part I outlines the provisions of the FMLA. Part II describes the expectations surrounding the maternity and paternity leave aspects of the Act, both at the time of its enactment and at its original introduction in the mid-1980s, when it was developed primarily in response to the needs of new mothers. Through the use of legislative history, this section demonstrates that the FMLA was designed to make it easier for parents to spend time with their new children without fearing the loss of their jobs. Part III evaluates the extent to which those expectations have been met, based on reports of experience as well as scholarly commentary. Part IV proposes ways to bridge the gap between the original goals of the FMLA and its actual efficacy in the past seven years. It first examines the potential for and experience of judicial interpretation in promoting the goals of the FMLA, and then suggests legislative changes: paid leave, a longer period of leave, and extended coverage. Finally, Part V explains why there is a greater possibility that these expanded provisions will be passed now, when Congress was unable to do so originally. Although the FMLA has gone a long way toward meeting its original goals, further change is needed in order to fully accomplish them.

THE FMLA

Basic Provisions

The Family and Medical Leave Act of 1993 provides "up to [twelve] weeks of unpaid leave per year under particular circumstances that are critical to the life of a family."(3) These circumstances are:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.(4)

The guarantee does not apply to every employer or to every employee. Private sector employers are included if they have fifty or more employees, and all public agencies are included.(5) This is a broader threshold than that provided for Title VII.(6) For employees to be eligible, they must have worked at least 1250 hours for that employer in the last twelve month period,(7) which is an average of twenty-five hours a week. In addition, the employer must employ at least fifty people at worksites within seventy-five miles of the employee's worksite.(8) As a result, it is possible for an employee of a eligible employer not to be covered by the Act. Eligibility is determined as of the time that the employee asks for leave.(9)

If both the employer and the employee are covered by the Act, the employer must provide twelve weeks of unpaid leave per year for any of the four reasons listed above.(10) Twelve weeks is the maximum amount of leave that employers can be required to provide; if the employer provides another leave program with better terms, such as paid leave, they cannot then be required to provide an additional twelve weeks of unpaid leave by the FMLA.(11) In order to trigger the benefits, the employee must give notice to the employer at least thirty days before the leave is to begin, or as soon as is practicable.(12) This is especially true with maternity or paternity leave, the nature of which usually allows employees to provide their employers with a general sense of when the leave will begin.

There are certain benefits that must be provided by the employer during the course of the leave, including continuing to provide the same medical benefits to the employee as he or she had at the time that the leave began.(13) In addition, the employer must provide opportunities for changes to benefit plans to the employee on leave in the same way that it does to other employees; however, the employer is not required to provide medical benefits in excess of what the employee was previously provided simply because he or she is on leave.(14) If the employee chooses not to return to work after the expiration of the leave, for reasons other than the recurrence of the serious health condition that was the original reason for the leave, the employer may recover the premiums paid on behalf of that employee during the period of the leave.(15)

Finally, at the end of the leave, the employee must either be restored to the position that he or she left or to an equivalent position, with "equivalent employment benefits, pay, and other terms and conditions of employment."(16) In addition to equivalent pay and benefits, the new position must have the same duties and responsibilities as the previous one, as well as equivalent skills and authority.(17) It is a more stringent standard than mere general similarity to the previous position.(18)

Limitations

In addition to the basic requirements, there is a "key employee" exception: the highest paid ten percent of employees are not necessarily guaranteed reinstatement of employment.(19) This exception excludes "a salaried eligible employee who is among the highest paid ten percent of the employees employed by the employer within seventy-five miles of the facility at which the employee is employed."(20) The employer may elect not to restore such employees to their previous position if doing so would cause "substantial and grievous economic injury to the operations of the employer" and the employer gives notice to the employee.(21)

Except in the case of personal medical leave, if a husband and wife are employed by the same employer, the required twelve weeks of leave is split between them.(22) This provision was intended to prevent discrimination against hiring married couples out of the fear that they will take too much leave.(23)

Enforcement

There are two mutually exclusive ways in which employees may seek redress if their FMLA rights are violated by their employer. First, the employee can complain to the Wage and Hour Division of the Department of Labor, which can bring a cause of action against the employer.(24) The other alternative is for the employee to pursue a private cause of action against the employer charging a violation of section 2615, which prohibits employers from interfering with, denying, or restraining employees from exercising their rights under the Act, or from discriminating against an employee for exercising those rights.(25) In either case, the employee may recover actual damages, liquidated damages, or equitable relief, as deemed appropriate by the court.(26)

Interaction with Other Statutes

The FMLA works in concert with other statutes related to family and medical leave. At the time of its passage, at least thirty states had their own family leave statutes.(27) Most had guarantees substantially similar to those of the FMLA, including California's guarantee of sixteen weeks of leave over two years for the birth or adoption of a child or for the serious health condition of a spouse, child, or parent to employees of employers with more than fifty employees, and Vermont's guarantee of twelve weeks of family and medical leave per year, with employers of more than ten people obligated to provide such leave for pregnancy, and employers of more than fifteen employees obligated to provide the leave for family...