NCPA - National Center for Policy Analysis

Family Leave

August 24, 2001

Taking family leave during an economic downturn is risky business. The 1993 Family and Medical Leave Act is meant to protect employees taking up to 12 weeks' unpaid time off for a childbirth or adoption, or for their own or a family member's serious health condition. It guarantees the continuation of any paid health benefits, plus a return to the same or an equivalent job. The law, however, does not apply to everyone or to every situation. Approximately 62 percent of U.S. workers are covered, but leave can be denied to:

  • Employees at a company with fewer than 50 employees, or who work at a location more than 75 miles from headquarters with fewer than 50 employees.
  • Employees who have not worked at their current position for at least 12 months or 1,250 hours in the past year.
  • Employees in the top 10 percent of workers based on pay.

The weaknesses of this law are numerous. The law doesn't protect workers from being laid off during or after family leave, and several courts have ruled that dismissals that occur due to spending cutbacks do not violate the act. Furthermore, some courts have ruled that the law doesn't apply if the worker is unable to perform the job or if performance is poor.

Winning outright lawsuits in court on the FMLA is not easy either:

  • University of Connecticut professor Steven Wisensale found employees lost in 74 percent of 69 job security cases between 1994 and 1999.
  • However, 60 percent of family-leave complaints filed with the Department of Labor's Wage and Hour division were resolved in the employees' favor.

Some observers point out, however, that rather than fighting a violation, the better solution for some has been finding a more family-friendly workplace.

Source: Sue Shellenbarger, "Shaky Job Market Makes Family Leaves a Riskier Business," Wall Street Journal, August 22, 2001.


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