March 2, 1997
"Family-leave Law Doesn't Work for Most Americans"
San Jose Mercury News
By Timothy Taylor
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Four years ago, when President Clinton took office, the first bill he signed
was the Family Medical Leave Act. FMLA assured eligible employees of 12 weeks
of unpaid leave per year, without threat of job loss, to care for new children,
sick relatives, or a personal health problem. Despite all the hubbub over the
bill, the evidence is that it hasn't made much difference.
Workers eligible under FMLA were largely already eligible for such leave. FMLA
covers most government employees. But among those in the private sector, it covers
only those have worked more than 60 percent of the time for at least a year for
an employer with more than 50 employees at a job site. With these limitations,
only about half of U.S. employees were eligible. New mothers are typically even
less likely to have enough recent work experience with a large enough employer.
By one estimate, only 19 percent of new mothers are eligible for FMLA leave. Meanwhile,
by the time FMLA passed, more than half the states had already enacted some form
of parental leave.
Under federal law, employers were already required to treat pregnancy like
any other disability under the Pregnancy Discrimination Act of 1978. The overwhelming
majority of those who work for large companies or the government already had short-term
disability coverage - and thus a form of family leave - as part of their fringe
benefits. By the time already existing laws and FMLA eligibility limitations are
taken into account, FMLA had little effect.
In one survey, over 90 percent of employers said that FMLA had no noticeable
impact on business performance. No wonder! For a cynic, the FMLA can serve as
another illustration of Clinton's philosophy of governing: Talk big, act small.
Clinton is a master of the low-cost gesture: school uniforms, the V-chip, a tiny
tax break or local grant, budget cuts scheduled for 2002. His family leave act
is one more example.
But one can also argue that precisely because FMLA didn't try to accomplish
too much, it was appropriate and useful. After all, it isn't usually sensible
for the federal government to pass laws that would dramatically shake up the rules
for almost 130 million widely disparate American workers.
Instead, the proper federal role in the workplace is to set minimum standards
for safety, nondiscrimination, non-harassment, hours, wages, and so on that minimize
serious abuses. Implicit in this view of federal responsibility is that most employers,
most of the time, should already be near or above the standard, which was certainly
the case with FMLA. As his second term gets underway, Clinton has been pushing
two extensions of FMLA. One would allow eligible workers 24 hours a year of unpaid
leave for duties like taking children or parents to a doctor's appointment, or
attending a conference with a child's teacher. The second would let workers store
up 80 overtime hours per year and, if they chose, use them as flexible time off.
Before getting too hot and bothered over these proposals, remember that the
Republican Congress isn't likely to let Clinton push them through. Or if it does,
by the time Congress and business lobbyists hammer out the fine print of who is
eligible, any extension of FMLA will end up affecting many fewer people than you
might expect. But it also seems to me that these extensions are less defensible
than the original bill, because they take the federal government closer to micromanaging
A new baby is a demonstrable fact, and doesn't happen every month. But who
is to mediate or adjudicate if employees suddenly claim the need to take their
24 hours of annual leave for school conferences and medical visits right around
a holiday like Thanksgiving or Christmas? I can too easily imagine nasty battles
as employees seek to bank 80 overtime hours which they could use for two extra
weeks of vacation.
Better to let companies, unions, and state and local levels of government experiment
with expanded family leave rules. When the kinks have been worked out, it will
be time enough for the federal government to extend FMLA.
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