Capitalizing 'F' Is Not Enough: The Army Should Revise Its Postpartum Lave Policies to Better Support the Army Family

• Author: Major Sara M. Root
• Pages: 05

CAPITALIZING "F" IS NOT ENOUGH: THE ARMY SHOULD REVISE ITS POSTPARTUM LEAVE POLICIES TO BETTER SUPPORT THE ARMY FAMILY

MAJOR SARA M. ROOT*

To further acknowledge the role Army spouses and children of Soldiers play in today's military, the director of the Army staff has instructed for the word Families to be capitalized in all official correspondence.1

We are committed to providing our Families a strong, supportive environment where they can thrive.2

I. Introduction

The eight-week-old infant developed a 104-degree temperature. A few hours later, the mother rushed the baby to the emergency room. The infant's fever was rising, even with medication. A doctor examined the baby and immediately called the neonatal specialist. Within moments, the doctors inserted a catheter and tube into the baby's spinal cord and turned the baby over. The mother watched in horror as the fluid drained from her baby's spinal cord. The diagnosis: meningitis. The baby would have died before the day was over had he not been treated. The source of the meningitis: exposure to bacteria carried by an older infant in the same daycare center. The difference in age between the two infants: seven months. The older infant was nine months old and therefore, had a more developed immune system to fight the bacteria. The eight-week-old infant's less established immune system could not defeat the nearly fatal bacteria on its own. The doctor told the mother that children three months and younger should not be in childcare centers because of the substantially increased risk of illness.3

In this situation, the mother did not have the option to be home for three months. She was an active component servicemember,4 and the Army authorizes only six weeks of convalescent leave for a mother after childbirth. Originally, her commander granted an additional two weeks of ordinary leave. However, the mother's supervisor needed her in the office, and he revoked her additional leave. If the Family and Medical Leave Act5 (FMLA), which applies to civilians, applied to this active component mother, her infant would not have had to be in a daycare center and would not have contracted meningitis from the other child. The time has come for Congress to expand military leave entitlements6 to include provisions similar to those provided by the FMLA.

During legislative hearings from 1985 to 1993, the United States (U.S.) Congress considered hundreds of other situations similar to the example above in attempting to establish a national family leave policy.7

Each example involved the almost impossible choice between family and financial security by virtue of sustained employment.8 Congress also heard counter-arguments from business owners describing the hardships they would face by being forced to implement the proposed labor protections.9 Finally, in 1993, President William J. Clinton signed Public Law 103-3, the FMLA.10 The FMLA provides up to twelve weeks of unpaid leave for "eligible employees"11 under certain qualifying conditions.12 Active duty servicemembers are not eligible employees.13

Leave authority for active duty servicemembers is provided by law and covered primarily by regulation.14 Army Regulation 600-8-10, Leaves and Passes, covers leave and pass programs for members of the U.S.Army.15 "Soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 2 1/2 days a month."16 There are two different types of leave that might cover postpartum leave for an active component mother who has recently given birth: convalescent leave and ordinary leave. The Army does not have maternity leave.17

Regarding convalescent leave, hospital and unit commanders are authorized to grant up to forty-two days of convalescent leave following childbirth.18 The regulation states, "Convalescent leave is a nonchargeable absence from duty granted to expedite a soldier's return to full duty after illness, injury, or childbirth."19 Additionally, male and female servicemembers can request ordinary leave following the birth of a child. The unit commander has discretion in granting ordinary leave.20

In addition to ordinary leave, fathers may receive paternity leave. President George W. Bush signed the National Defense Authorization Act of 200921 on 14 October 2008, amending 10 U.S.C. § 701, which provides ten days paternity leave for active duty married members of the armed forces whose wife gives birth.22

While military regulations do provide servicemembers with options to take leave, they do not provide enough time for postpartum leave.23

Congress could expand the FMLA to include active component servicemembers as "eligible employees." However, applying all provisions of the FMLA to servicemembers goes too far.24 This article proposes Congress amend 10 U.S.C. § 701 to entitle female servicemembers twelve weeks maternity leave following the birth of a child, male servicemembers four weeks paternity leave following the birth of a child, and male and female servicemembers six weeks parental leave following the adoption of a child.25 This would provide benefits more consistent with the FMLA, state laws, international policy, and the Army's own renewed commitment to families, without compromising the mission.26

This article establishes five reasons why postpartum leave should be extended: (1) to improve infant health; (2) to improve parent health; (3) to improve infant-parent bonding; (4) to improve servicemember performance; and (5) to improve retention rates.

Opening with a discussion of the FMLA, Part II explains why the FMLA is the federal standard in the United States. Part III then describes the current Army leave policies and authorizations and aids the reader in understanding the genesis of postpartum leave in the Army. Part IV discusses corporate leave policies beyond those authorized by the FMLA, as well as state efforts to financially supplement family leave. Part IV also compares U.S. standards with international leave policies and highlights why the Army's policies are inadequate. Part V discusses in depth the five reasons why the Army leave policy should be expanded. In Part VI, the author addresses possible counterarguments to expansion

of the Army leave policy. Finally, Part VII concludes with recommendations and a proposal.

II. The Family and Medical Leave Act

1. Overview

   The FMLA mandates that certain employers provide eligible employees with up to twelve weeks of unpaid leave during any twelve-month period for the birth, adoption, or foster care placement of a son or daughter; to care for a spouse, parent, or son or daughter with a serious health condition; or "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee."27 Except for certain exempt employees,28 employers must restore employees to their original position of employment or "an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment."29 "[T]he employer shall maintain coverage under any 'group health plan' . . . for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave."30 If an employee does not return to work after taking leave, "[t]he employer may recover the premium that the employer paid . . . during any period of unpaid leave . . . ."31 Small

   businesses with "less than fifty employees" are exempt from providing FMLA benefits to its employees.32

2. Background

   Two months following the birth of her daughter in 1982, Lillian Garland attempted to return to her position as a receptionist with

   California Federal Savings and Loan Association (Cal Fed).33 Her employer informed her "that her job had been filled and that there were no receptionist or similar positions available."34 Ms. Garland filed a complaint claiming Cal Fed had violated § 12945(b)(2) of California's Fair Employment and Housing Act35 that required Cal Fed to reinstate her after she returned from pregnancy leave.36 Cal Fed brought an action in the U.S. District Court for the Central District of California seeking both "a declaration that § 12945(b)(2) [was] inconsistent with and preempted by Title VII [of the Civil Rights Act of 1964] and an injunction against enforcement of the section."37 The district court found in favor of Cal Fed stating that providing such rights to women based on "pregnancy, childbirth, or related medical conditions [is] preempted by Title VII and [is] null, void, invalid and inoperative under the Supremacy Clause of the U.S. Constitution."38 Although the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court ultimately overturned the district court's decision,39 the district court's decision gave birth to the FMLA and encouraged the law's initiators to develop a non-gender-based family medical leave policy.40

   In the law, Congress set forth several findings warranting the passage of the FMLA. "[T]he number of single parent households and two-parent households in which the single parent or both parents work [had] increase[ed] significantly."41 Society had simultaneously recognized the importance of having both parents participate in early childrearing on the development of children. However, "the lack of employment policies to accommodate working parents [forced] individuals to choose between job security and parenting."42 Congress likewise recognized the importance of family participation in caring for family members with

   serious health conditions.43 Congress also found that women-more often than men-had the "primary responsibility for family caretaking," and "such responsibility affect[ed] the working lives of women more than it affect[ed] the working lives of men."44 Finally, Congress specifically stated that laws protecting only women would "encourage employers to discriminate."45

   Based on these findings, Congress intended...