Changes in FMLA Limit Maternity Leave Options
Published December 02, 2008 @ 10:33AM PT
Major changes to the Family Medical Leave Act of 1993 (FMLA) will take effect on January 16, 2009. The U.S. Department of Labor published amended FMLA regulations for the first-time in the Act's 15-year history in changes released in the Federal Register on November 17, 2008. The FMLA effects mothers particularly as it covers leave for the birth or adoption of a child, as well as leave to cover a sick child.
Although the enactment of the FMLA was an important success for moms' rights advocates, the law has always been arguably limited. For instance, the FMLA does not cover moms who work for a company with less than 50 employees, or moms who have been working with the employer for less than one year. Therefore, if a woman discovers she is pregnant soon after she changes jobs (when she would already be one-month pregnant), the new employer is not required to provide maternity leave under the FMLA. This case holds true even if the woman would have been covered by FMLA under her former job and did not know about the pregnancy at the time of starting her new job. New mothers with new jobs have no job protection since there are no exceptions for women who did not know they were pregnant or would become pregnant during the 3-month crack in the FMLA.
Furthermore, the leave granted by the FMLA is completely unpaid, so that many women are forced to return to work immediately after the birth of their newborn, simply because they cannot afford to take unpaid leave like these two bloggers: I am ohsoblessed and Historiann.
Beyond these prima facie problems, new mothers have also had further problems in application of the law. Employers have denied FMLA rights to new mothers who qualified for the leave, and have retaliated against new mothers for taking the leave. These amendments to the FMLA were drafted to correct some of these issues, which caused confusion and resulted in litigation. However, certain aspects of the new regulations will clearly hurt mothers in need of maternity leave to care for their newborns or newly adopted children. Among them:
- Employers will be allowed to require "fitness-for-duty" evaluations to decide whether employees who took FMLA leave are fit to return to their specific jobs.
- Employers will be allowed to consider FMLA absences to disqualify employees from bonuses or other incentives when the employee has not met a specified job-related goal due to FMLA leave.
- An employer can force the employee to use all or part of her accumulated vacation, personal, family, medical, or sick leave concurrently with the FMLA leave, potentially eliminating an employee's ability to take any additional leave for the next year.
The changes do not guarantee any pay during maternity leave, and therefore will not guarantee women will be able to take the leave for childbirth. In addition, the new regulations apparently do not help with the problems of retaliation against employees who take leave, a problem compounded by maternal profiling. Indeed, the changes will arguably be more beneficial to employers than employees, since fewer people will qualify for leave under the new amendments according to the U.S. Department of Labor. The result: supposed clarifications with the new FMLA may actually cause increased confusion and litigation.
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Comments (9)
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Author
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Shel Lyons is a lawyer, advocate, and mom with a focus on birth rights and family issues. She is a former Honors Attorney with the United States Department of Justice. In 2004, she received a clerkship with the Honorable Judge Sharon Prost. In 2005, she was awarded Harvard Law School's Heyman Fellowship for dedication to public service. She gave birth at home and is breastfeeding her cloth-diapered daughter. She grew up in the San Francisco Bay Area, and currently resides in the greater Washington, DC area.
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wow...When I took my maternity leave I took the last 2 weeks unpaid so I'd have a few paid leave days left for doctor's visits and in case I got sick. I was lucky to have accumulated so many sick & vacation days to pay for my leave, but it should be my choice about that.
Thanks for the update on the changes! Now to work to change the changes!!
Posted by Veronica Arreola on 12/02/2008 @ 01:02PM PT
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Great post Shel - this certainly one more fight in a long line of struggle for parenting rights that we will have to collectively conquer.
Posted by Jen Nedeau on 12/03/2008 @ 04:49AM PT
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Veronica, I share your concern. When newborns get sick or the mother is ill, it will either force mothers to work in a unhealthy work environment (leaving a newborn home with a nanny when the mother feels she should be home) or it will force more mothers out of the workforce. Since FMLA leave can only be taken once in a year, mothers in this situation will either have to go to work or quit, neither choice is the best for the mother or our future generation.
Posted by Shel Lyons on 12/03/2008 @ 07:50AM PT
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even though I did not return to the workforce until my last child was in middle school,I totally agree with your posts.My daughter was lucky enough to get a good paid maternity leave from her company,but others are not so lucky.I think it is a disgrace that in this country women who are struggling to make ends meet for their families should be penalized in this way!
I am for a "family friendly work environment" with possible daycare at the worksite,and more consideration for the primary caregivers to their babies.I believe family comes first and mothers should be able to stay home with a sick kid,or stay home themselves when they are sick.This promotes a healthier work environment,too! Some women have no choice,as things stand today, but to stagger in to work sick and have to pay a sitter that they can ill afford! HOpefully,the Obama administration will be more sensitive to this crucially important issue,as they are family people themselves! I believe a new world change begins with the little ones!
Heather Koelle,mother of 3 grown kids,2 grandkids
Posted by Heather Koelle on 12/03/2008 @ 09:03AM PT
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I smell and idea for Ideas for Change in America (www.change.org/ideas)...
Posted by Joshua Levy on 12/04/2008 @ 06:45PM PT
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Joshua, here is the idea: http://www.change.org/ideas/view/give_fmla_leave_to_all_employees_without_requiring_them_to_use_their_own_sickvacation_leave
Posted by Shel Lyons on 12/05/2008 @ 05:03AM PT
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President-Elect Obama, here is another great idea!!
Posted by Mark Flanigan on 01/06/2009 @ 06:10PM PT
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I am beyond frustrated with the way family life is treated in this country. There are contradictions in every part of it, there are so many wrong policies. I agree with a posting from Heather Koelle...it seems like women are penalized for having children. It's sad to see that you cannot have the family you dream of because, that's not something important in this country.
There's a reason why so many kids are left out on the streets, are on drugs, have no communication with their parents, are off having sex like wild animals, etc... Mothers do not get the time to nurture their child, to give them that love and attention that they seek at such young age.
I am having my first baby in four weeks and I am not entitled to FMLA, so I get with my baby the amount of time that my employer decides to give me. That is pathetic. Ever since I graduated from College, I have been nothing but a hard working American, who has done everything "the right way" and just because I chose to move jobs (and did not know I was pregnant at the time), I cannot spend at least 12 weeks with my baby. Being a mother is probably the best job I will ever have in my life and I feel like I am being robbed of doing a good job at it, because of the short time I will have with my baby... because I have to go back to work so soon.
I spend some nights crying over it, because I know that if I lived in another country (like Canada) I would get a whole year to be with my daughter and wouldn't have to worry about paying rent because my employer would pay me my regular pay check. I am so surprised, that being in a country where supposedly we are "so advanced", we lack knowledge in the most simple things in life.
This world cannot possibly become a better one, if children are left alone or to be taken care of by strangers. Nobody knows children like their own parents, there's no better person to care for them. (There are exceptions to this), but in my case, my child is the most important thing in this world.
Posted by Marta Villota on 02/17/2009 @ 02:16PM PT
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Yes, I guess i fell into the crack!! I fall short on the one year just changed jobs and now I only get 2 week of maturnity and they are going to drop me from insurance, just when I need it the most. I thought I went to work for a family friendly place, boy was I wrong!!!
I couldn't be more frusterated right now!!!
Posted by Amy Kyle on 08/10/2009 @ 10:41PM PT
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