Has FMLA/CFRA been good for the workplace?

Ever since FMLA went into effect in 1993, it has been a success. A U.S. Department of Labor report issued in June 2007 found employee reactions to FMLA to be uniformly positive. The report referenced a 2000 Westat Report which had found that “89% of employers reported that the FMLA has had either a positive or neutral effect on employee morale”. Numerous employees also commented that FMLA encouraged a “greater sense of loyalty to their employer”.

Nevertheless, some argue that FMLA/CFRA does not go far enough. I have already posted about how U.S. leave policies continue to lag far behind those of other countries around the world. See “U.S. FMLA/CFRA Leave Lags Far Behind Rest of World”. The AFL-CIO also cites a national survey conducted by the National Opinion Research Center of the University of Chicago which found:

1. the U.S. ranks at the bottom of 21 high-income nations in providing parental leave for workers
2. 1 in 6 workers were fired, disciplined or threatened by their employer for taking time off for illness or to care for a sick family member
3. Nearly 50 percent of private-sector workers and 76 percent of low-income workers have no paid sick days

It isn’t hard to understand why better leave policies would be better for everyone. According to Deborah Leff, president of the Public Welfare Foundation, paid sick leave is not only good workplace policy, but “good public health.”

The lack of paid sick days has real consequences for Americans forced to choose between losing a day’s pay or going to work sick. It’s difficult for employees to be productive when they are not well. They also expose co-workers and customers to illnesses.
“Sick and Fired: U.S. Workers Struggle Without Paid Sick, Parental Leave”

Employers complain that leave policies can be difficult to administer and that leave abuse is rampant.

Marc Freedman, director of labor law policy for U.S. Chamber of Commerce, had this to say:

It’s just too confusing and too vague. Right now, the system is such that it allows an employee who wishes to, to game the system.
“Do employees abuse the Family and Medical Leave Act?”

But employers should be asking themselves, is it really in their interests to have sick employees or employees with sick family members reporting to work for fear of losing pay or their jobs? Because the data suggests that that is exactly what is happening. The Institute for Women’s Policy Research conducted a study that concluded improved medical leave laws could save the U.S. economy $8.1 billion a year by preventing lost productivity due to sick workers, the spread of illness to co-workers and customers and worker turnover.

Besides, a suspicious employer can always ask the employee to undergo a second examination in order to get a second opinion whether medical leave is really justified. It is difficult to understand why more employers don’t take advantage of this little-used regulation.

If you believe your employer has interfered with or retaliated against your medical leave rights, contact a lawyer right away as strict filing deadlines may apply.

Related posts:

1. Leave Rights in California: Part 1
2. FMLA Medical Leave Expanded to Families of Military
3. U.S. FMLA/CFRA Leave Lags Far Behind Rest of World

Am I eligible?

Unfortunately, FMLA/CFRA does not protect all workers, only those who have:

• worked at least one year for their employer,
• have worked at least 1,250 hours in the past year, and
• whose employer has at least 50 employees working within 75 miles of the employee’s worksite.

According to U.S. Department of Labor June 2007 report, the eligibility requirements for FMLA/CFRA means that only 76.1 million workers out of 141.7 million total U.S. workers, or 53%, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies).

How much medical leave is allowed under FMLA/CFRA?

Under FMLA/CFRA, employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness (under FMLA but not CFRA, this includes incapacity due to pregnancy, childbirth or related medical conditions). You may be entitled to an extension of leave past the 12 week maximum if you have a mental or physical disability that requires a leave extension as an accommodation of that disability (this assumes the employer is aware or has been informed of your disability and/or associated work restrictions). It is illegal for an employer to treat you differently or punish you for taking medical leave. You also have a right to be reinstated to your position upon return from your medical leave unless you are a “key employee”.

Is the leave paid or unpaid?

FMLA/CFRA (and PDLL) leaves are unpaid. According to the AFL-CIO, the lack of paid leave ”presents a significant obstacle for those who cannot afford to take FMLA leave”. This claim is backed up by a 2000 Westat Report which found that the most commonly noted reason for not taking leave was inability to afford it.

Of course, if you’re lucky, your employer will choose to pay you during such leaves, or apply your paid sick leave/vacation time to your medical leave.

What if I’m pregnant?

If you are incapacitated due to pregnancy, childbirth or related medical conditions, you may qualify for 4 months of leave under the California Pregnancy Disability Leave Law (PDLL). You can then take an additional 12 weeks of CFRA (but not FMLA) leave “for reason of the birth of her child, if the child has been born by this date” and assuming you have enough time left in your CFRA bank. 2 Cal. Code of Regs. § 7291.13(c).

Note, the above eligibility requirements for FMLA/CFRA do not apply to PDLL. To qualify for PDLL, you need only work for an employer who has 5 or more employees.

Conclusion

In Part 2, I will discuss whether FMLA/CFRA has been good for the workplace and what further improvements can and should be made, if any.

If you believe your employer has interfered with or retaliated against your medical leave rights, contact a lawyer right away as strict filing deadlines may apply.

Related posts:

1. Leave Rights in California: Part 2
2. FMLA Medical Leave Expanded to Families of Military
3. U.S. FMLA/CFRA Leave Lags Far Behind Rest of World

On January 28, 2008, President Bush signed the National Defense Authorization Act for FY 2008 (H.R. 4986) into law, effective immediately. The NDAA expands the Family and Medical Leave Act of 1993 (FMLA) to provide up to 26 workweeks of medical leave to the immediate relatives (spouse, son, daughter, parent, or next of kin) to care for members of the Armed Forces who are seriously injured or ill. This is more than double the 12 workweeks of medical leave otherwise provided to employees under FMLA. You can read all about it at the Department of Labor website.

The Department of Labor is currently drafting regulations for the law which fill in all the nitty-gritty details. Until then, employers are required to implement the expanded FMLA “in good faith”.

Related posts:

1. U.S. FMLA/CFRA Leave Lags Far Behind Rest of World
2. Fired Chase Manhattan Employee’s Recovery for FMLA Violations Could Exceed $7 Mil.
3. Leave Rights in California: Part 2

Being an employment attorney, I was especially surprised to watch Sicko’s account of how poorly US medical leave policies compared with those of other countries. Then I did some further research.

According to a 2007 report from The Project on Global Working Families – The Work, Family, and Equity Index: How Does the United States Measure Up? – which surveyed worker policies in 177 countries, the US performs well in terms of anti-discrimination policies, while US overtime policies are near the top of the range (only 6 countries mandate more than “time and a half”).

Where the US lags behind, though, is in sick, medical and paternity/maternity leaves and work hours. Here are some excerpts:

- “U.S. guarantees no paid leave for mothers in any segment of the work force, leaving it in the company of only 3 other nations: Liberia, Papua New Guinea, and Swaziland.” [Note: California has the Pregnancy Disability Leave Law]

- “137 countries mandate paid annual leave. 121 countries guarantee 2 weeks or more each year. The U.S. does not require employers to provide paid annual leave.”

- “At least 126 countries require employers to provide a mandatory day of rest each week. The U.S. does not guarantee workers this 24-hour break.”

- “More than 81 countries provide sickness benefits for at least 26 weeks or until recovery. The U.S. provides only unpaid leave for serious illnesses through the FMLA, which does not cover all workers.”

- “49 countries guarantee leave for major family events such as marriage or funerals; in 40 of these countries, leave for one or both of these family events is paid.” Not the U.S. And not California. Just a few months ago, SB 549, a bill that would’ve given employees 4 days of bereavement leave, passed the California legislature. Governor Schwarzenegger vetoed it. Imagine getting fired for attending your mother’s funeral. You can stop imagining, that’s the reality.

Under the US Family Medical Leave Act (and also under the analogous California Family Rights Act), employees are entitled to take a maximum of only 12 weeks of job-protected medical leave to care for a newborn, newly adopted child, seriously ill family member or for the worker’s own serious illness. The FMLA does not protect all workers, only those who have worked at least one year for their employer, have worked at least 1,250 hours in the past year, and whose employer has at least 50 employees working within 75 miles of the employee’s worksite. According to the AFL-CIO, this means FMLA leaves 40% of workers out in the cold.

You might think that being “hard-core” means Americans are more productive than everyone else. Wrong. According to the OECD, US productivity is lower than countries with more generous medical leave policies like Ireland, Netherlands, Belgium, Luxembourg, Norway and, surprise, France, a country that Sicko focused heavily on. In fact, according to this article in the Washington Post, 75% of women in France with at least two children are employed. The number in the US is far lower than that.

So working reasonable hours, being able to take time off to take care of illnesses, and having periodic breaks from work translate into greater productivity (and a happier worker)? You don’t say. Looks like it’s time for Governor Schwarzenegger to rent his own copy of Sicko.

Related posts:

1. FMLA Medical Leave Expanded to Families of Military
2. Minimum Wages around the World
3. Fired Chase Manhattan Employee’s Recovery for FMLA Violations Could Exceed $7 Mil.