Family and Medical Leave Act at 25: What's Next?

Family and Medical Leave Act at 25: What’s Next?

February 5, 2018

On the 25^th anniversary of the federal Family and Medical Leave Act, Gender Policy Report Labor & Family contributor Debra Fitzpatrick connected with Jackie James, co-director of the Center on Aging & Work at Boston College, and Jennifer Greenfield, assistant professor at the University of Denver/ Graduate School of Social Work, to discuss the law and proposed policy innovations. They recently co-authored an OpEd and spearheaded an effort to engage 113 researchers on aging, work and family issues to advance specific policy solutions.

Excerpts from the conversation follow. Audio of the full conversation below.

DEBRA:

To start us out, can you provide a brief overview of the federal FMLA or Family and Medical Leave Act?

JENNIFER:

FMLA was passed in 1993, signed into law on February 5^th so that’s why we’re coming on the 25^th anniversary and it passed with pretty wide bi-partisan support in the House and Senate and was then signed into law by Bill Clinton. It was a pretty important first step in supporting families engaged in caregiving across the life course. It was innovative in that it included not just mothers who were giving birth but also included adoption or placement of a child in foster care, caring for a seriously ill family member or even recovering from a worker’s own illness. … And the other important thing about it was that it provided job protection for people who did have to take leave. And unfortunately it does not include any provisions to provide pay for people who take the leave but at least it meant that workers wouldn’t lose their jobs if they had to take a little time off.

DEBRA:

Can you comment on how various types of workers, especially worker caregivers of older adults, have benefited or had difficulty taking advantage of the law as it is constructed now?

JENNIFER:

I’ll start with talking about some of the benefits … It provides opportunities to take different types of leave. So they can take a bigger chunk of time which is fairly common of the birth of a newborn for instance, or do a reduced schedule over time or take intermittent time off for instance if you need to take a day or two for chemo treatments every week or so. All of those altered schedules become available through FMLA. So, I think that has been critically important for a lot of workers and one of the things we have seen since the implementation of FMLA is that for instance new mothers that have access to FMLA leave are more likely to return to their previous employer. And when they do return, they return at the same pay level or higher, whereas women who have had to actually leave their employer often end up experiencing a drop in pay and this has, as Jackie mentioned, serious very long term repercussions for them. The same is true of caregivers for older adults. We know that when a worker has to drop out of the workforce because of caregiving they lose an average of, AARP came up with an average of $325,000 in lost wages, social security contributions and benefits.

One other benefit, there was some worry that employers would find this to be a burden, that having workers suddenly need a month or two or three months off in a year would be a problem for the other workers and the employment establishment and what they found is that nearly all employers report that it has had either no effect at all on their business or it has had positive effects. Many employers report that they have had stronger employee retention, less turnover and they are actually able to save money on their labor costs because they have employees that return and bring back that institutional knowledge they have about their work. So it has ultimately been seen as a benefit for both employers and to their employees.

But then on the flip side, one of the major difficulties with the FMLA is that it does not guarantee an income when an employee takes leave. So, we know that when people don’t have access to paid leave they are more likely to not take a leave that they may need or not take as much leave time as they may need. Some research on this has shown that for every three people that take leave there is one employee that really needed it but didn’t. This can very serious long term consequences for families. For instance, among infants who are born to moms that don’t have access to paid leave there is higher incidence of infant mortality, there are lower rates of breastfeeding and higher rates of postpartum depression and so on. Serious consequences can be translated in to economic terms as well as the health terms. The other thing is that because of the stipulations of FMLA in terms of who is eligible it only applies generally to employers with 50 or more employees and each employee must have worked over the last twelve months at an average of 25 hours per week over those twelve months in order to qualify for FMLA. This is increasingly an issue because we have lots of employees that are participating in the gig economy. They may have intermittent access to work and so on and so forth. What we find is that only about 40% of US workers even qualify for FMLA. And then you have all of the issues of whether you can afford to take the leave if they do qualify.

DEBRA:

Given the limitations of the current law, please talk about the policy changes we see on the horizon.

JENNIFER:

The one that has been making headlines and that a lot of people are keenly aware of is an effort to implement paid leave policies across the US. There has been some energy around this at the federal level with the FAMILY ACT and also in a number of states. We’ve seen several states that have recently adopted paid leave plans like New York and other states that are currently debating it. So, next week in the Colorado legislature, for instance, there will be a hearing on the paid leave proposal in the state. There is momentum behind that because we do see that so many workers are unable to take the leave because of the income issues. Many of the bigger employers are starting to make headlines with either offering new programs with paid leave for their employees or extending, for instance Netflix now has 12 months of paid leave available for employees. These businesses are arguing that it actually has positive economic impacts for them as employers. I think this is helping build momentum around the country. I expect that the conversation will continue and there is actually a lot of bi-partisan conversation about paid leave.

Some other movements that are happening that are maybe a little less splashy are that some places are looking at reducing the minimum number of hours that employees must have worked with the company in order to qualify and in fact there are a handful of states that have actually done this already, reducing it to 15, 20 hours averages instead of the 25 that is part of the FMLA cap or reducing the number of employees that are employed at the firm. So, that smaller businesses are also covered by FMLA. This is critically important because so many of America’s workers are employed in small businesses, so when their written out of this policy those employees are left without access to leave.

The last thing is that there is some conversation about not requiring an employee to have worked for the employer for the entire twelve months to qualify for the leave. Or to make it not contingent on an employer. They can have worked for several different employers and pay into a state system that isn’t tied to their job and then be able to access that leave even if they happen to switch jobs a couple of months before they got pregnant or got sick or whatever.

DEBRA:

Turning to an effort you, Jackie, spearheaded an effort to engage 113 researchers on aging, work and family issues from multiple disciplinary perspectives and institutions across the country to advance specific policy solutions. Can you tell us more about that effort and what you have learned from it?

JACKIE:

We are paying attention to many of the efforts that Jennifer just talked about across states and across the nation to make the FMLA a paid option and as part of our mission think about how to advance long and productive lives. We’re actually part of a social work grand challenge to make that possible for more people to have long and productive lives, working, volunteering and caregiving. As part of that effort, we started thinking about how we could engage in the public policy debate and contribute to it. When we heard about the law being drafted by Senator Gillibrand’s office we thought we could engage our large network of researchers interested in researching aging, work and family issues to support that effort. We sent out a letter explaining the law, the initiative and asking for signatures. And it was just really interesting that almost all, everybody that I write to wrote back said they would be happy to sign it. They couldn’t believe we didn’t have it already. It was sent to Congress sometime in November, I believe.