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FMLA Still Helping Families Cope with Illness

February 5, 2013

When I gave birth to my daughter, I returned home with a squirmy little bundle and immediately felt overwhelmed. Though I was exhausted from changing diapers and waking for feedings, I was thankful that my job was secure.

In our struggle to balance our family lives and our work lives, one law has made a giant difference for me and 35 million other American workers — the Family Medical Leave Act.

This week, the FMLA celebrates its 20th year in existence. It’s been a godsend for those of us who want time to bond with our newborn, care for an aging parent or deal with a health emergency without the fear of losing our jobs.

But two decades after President Bill Clinton signed the FMLA into law, advocates say they still have unfinished business.

“It was meant to be a first step toward a family-friendly American workplace. But it is 20 years and we haven’t gotten to the second step,” says Judith Lichtman, senior advisor to the National Partnership for Women & Families and an original advocate for passage of FMLA.

In many ways, the FMLA has been even more helpful to working families than expected. The law initially was conceived to allow working mothers like me to take time off for childbirth and post-maternity.

But over 20 years, it has been used 100 million times by all types of workers — about 40 percent of them men.

The FMLA has provided time off for women who needed medical care during difficult pregnancies, fathers who took time to care for children fighting cancer, adult sons and daughters caring for frail parents and workers taking time to recover from their own serious illnesses.

The federal law says we can take up to 12 weeks of unpaid leave if we work at a company with more than 50 employees, with a caveat that we must be employed there for a year. The big benefit is that our jobs are protected during that leave.

During the recession, the job security and the continuation of health insurance that FMLA guarantees proved particularly important.

Debbie Winkles, senior VP/director of human resources at Great Florida Bank in Miami Lakes, used FMLA three years ago when she needed to care for her husband who was battling cancer. Today, Winkles has male and female bank employees who are using FMLA to care for their newborns or to cope with illness.

Her company has created an easy spreadsheet system to track its employees’ FMLA leave. “With today’s health issues, so many people diagnosed with cancer are having chemotherapy, and employees need medical leave for themselves or a family member.”

In Wisconsin, Jill Delie is using FMLA to manage a chronic disease by taking a few days off each month for doctors appointments. In Maine, Vivian Mikhail used FMLA to care for her daughter, Nadia, when the little girl was diagnosed with an autoimmune condition that left her completely deaf.

Just this week, a longtime friend of mine told me how fortunate she feels to be able to take FMLA to spend time with her mother who has incurable lung cancer. “I don’t want to lose my job, but I can’t imagine not being there for her when she needs me,” my friend sighed.

Yet for all the benefit, FMLA doesn’t guarantee wages while workers are on leave, a component advocates had planned as a second step. According to a Department of Labor study, 78 percent of workers who needed FMLA leave did not use it because they could not afford to take unpaid leave. Proposed federal legislation would expand eligibility and introduce a paid family-leave insurance program. Funded through a small payroll tax, the program would provide two-thirds of an employee’s wages for up to 12 weeks of leave.

“It’s embarrassing given where we are compared to our partners in the industrial world. There are very few countries that still don’t provide paid leave,“ Lichtman says.

Across the country, cities and states have been trying to fill this gap.

A handful have supplemented the FMLA by adopting earned sick days laws. Ellen Bravo, executive director of Family Values @ Work, coordinates campaigns around the country to advance family leave insurance and paid sick days. Beyond a patchwork of state and local laws, Bravo wants to see federal approval for expansion of FMLA to make it more affordable to people of all income levels to use. “The bottom line is having a family shouldn’t cost you your job,” Bravo says.

Those efforts aren’t popular with big employers. Bravo says business interests, which fought FMLA for nine years before its passage, predicted doom for employers. That never came to fruition, she says: “It’s been positive in the sense that it has kept workers attached to the workforce.” New research released this week by the U.S. Department of Labor reveals women who take paid leave after a child’s birth are more likely to be working the following year.

Still, there are some unforeseen consequences with FMLA. Employers say it can be difficult to track time off for workers who take their 12 weeks of leave a few hours at a time. And, even with the law on the books, some employers just don’t comply, leading to lawsuits in federal courts around the country. “In some scenarios, employers don’t familiarize themselves to the extent they need to with the FMLA requirements under the law,” says Angeli Murthy, attorney with Morgan & Morgan in Plantation.

In Miami, Pat Hurley, a former president at Kent Security, asked for medical leave to recover from depression. His company’s CEO fired him the next day. “My story reads like a case study in how not to treat employees,” Hurley says.

Hurley sued Kent in federal court in Florida in 2008 for a violation of the FMLA and won more than $1 million in pay, penalties and attorneys fees. “The court found it significant that the CEO of 1,000 employees had never reviewed the employee handbook to familiarize himself with his obligations under FMLA,” says Murthy, who along with Richard Celler represented Hurley. (Kent has appealed the verdict.)

One of the biggest frustrations for FMLA advocates is that as much as 40 percent of the workforce isn’t even eligible for FMLA. The law is confined to workplaces with 50 or more employees and excludes part-time workers.

On this anniversary, advocates say they will work toward getting FMLA updated and expanded. New legislation drafted in Washington this month would expand eligibility to more of the workforce and introduce a nationwide paid family leave.

National Partnership for Women & Families President Debra Ness she and others are pushing hard for FMLA expansion: “The law has been a huge success, but it’s time — past time — to take the next step.”

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