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The FMLA at 20: Room for improvement?

Filed by KOSU News in Public Insight Network.
February 7, 2013

Twenty years ago, President Bill Clinton signed the Family and Medical Leave Act into law, granting 12 weeks of job protection to workers recovering from an accident, tending to a sick loved one or caring for a new baby. A 2012 report commissioned by the Department of Labor found that 13 percent of all employees took leave for an FMLA-eligible reason that year.

Though largely celebrated as a success, criticisms of the law remain. Nearly half of all U.S. workers are not covered under the FMLA, primarily because they work part-time or because their employer has fewer than 50 employees. Suggestions that the law is easily abused are also prevalent.

We reached out to sources in the Public Insight Network to hear about their experiences with the legislation.

Keith Bellisle lives in Ridgefield, Wash. He says he’s taken FMLA leave a number of times: for the birth of his children, for a personal illness and to care for his children when they became ill. He remembers when the law was passed two decades ago and says he felt surprised that such protections weren’t already in place.

He says he feels grateful the law was there when he needed it. “I was able to survive financially while dealing with a serious medical condition, as well as keep my job,” he said.

Several new moms we heard from lamented that 12 weeks was not nearly enough time to be home to care for their newborns, recommending a leave time of six months to a year. A father explained that although his right to take family leave is protected under the law, his co-workers gave him a hard time, with one warning that people would make fun of him.

Whether their time away was due to illness or the birth of a child, many people we heard from criticized the FMLA for failing to guarantee financial compensation for workers who needed to be away from the job. Though some employers decide to continue paying at least a portion of an employee’s salary while they’re on leave, that practice isn’t provided for in the law. Laska Nygaard says she opted to have her baby in Hong Kong due to her adopted country’s more generous leave policies. “I used to live in Hong Kong and we made sure that we had our child there before moving back [to the United States] because I was guaranteed 10 weeks maternity leave at 80 percent pay under Hong Kong law,” the St. Paul, Minn., resident said.

And then there were the complaints about navigating the system. Some people said they felt that the process of applying for leave was overly complicated; others felt that their company’s human resources department either didn’t clearly understand employees’ rights or seemed reluctant to explain all the benefits guaranteed under the law. Doctors, too, can get caught up in the minutiae of the FMLA’s rules.

Marc Downing is a pediatric surgeon in Kalamazoo, Mich. He says the leave application process under the FMLA puts the doctor in the middle of a potentially tense relationship between employer and employee. (Photo shared by Marc Downing)

Marc Downing is a pediatric surgeon in Kalamazoo, Mich. He says the leave application process under the FMLA puts the doctor in the middle of a potentially tense relationship between employer and employee. (Photo shared by Marc Downing)

Marc Downingis a pediatric surgeon in Kalamazoo, Mich. He says he recognizes that the way the law is currently structured creates a tension between employee and employer and says doctors too often get stuck in the middle.

“First, if you reviewed the typical FMLA paperwork it suggests an antagonistic relationship between the employees and the employers that is to be resolved by a physician who is unfamiliar with their relationship. It requests prognostic details about future medical care that are unknowable.

“As a physician, I am happy to share the medical data that is available to me with both employees and employers, but I would prefer for them to negotiate the details of the employees’ leave from their duties. For the employer, the paperwork appears to create hurdles for the employee to negotiate. On the other hand, employees frequently specify the period of time that they would like leave from their duties that seems to be in excess of necessity.

“Since the physician has been made the final arbiter of this negotiation, I feel that I am placed in an uncomfortable position of telling the employer how to interact with the employee. This becomes even more complicated when the patient is not the employee, such as in the case of a child. Now, the paperwork asks how much time the employee will need to be off for the care of the loved one. Again, I feel completely inadequate to provide a recommendation.

“At this point, families appear to feel betrayed that I will not be their advocate and employers sometimes appear frustrated that I won’t just tell them what to do. In the end, the standard paperwork is functionally sub-optimal in its attempt to arbitrate between two parties that simply need to communicate.”

Downing’s comments made us curious about the experiences of other medical professionals. If you’re a doctor or have experience filling out FMLA paperwork, do you feel pulled between employer and employee?

Medical professionals, share your experience here. And if you’re an employer or employee, how has the FMLA worked for you? Tell us here.

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