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Are Changes to FMLA Eligibility on the Horizon?

What does Obama's pledge to help families mean for FMLA? (CQ Roll Call File Photo)
What does Obama's pledge to help families mean for FMLA? (CQ Roll Call File Photo)

Anne Marie Pearson worked 17 years in human relations for an employer she called “family friendly” until her sister, Joanne Van Newkirk, required immediate care for terminal cancer. She applied for unpaid family leave but was denied — care for a sibling is not covered under the 1993 Family and Medical Leave Act.  

Pearson quit her job and took her case to the Pennsylvania General Assembly, which is considering a bill dubbed Joanne’s Law that would allow grandparents, siblings and grandchildren to take unpaid leave when a spouse, parent or child is not available to provide care. Sen. Richard J. Durbin , D-Ill., and Rep. Carolyn B. Maloney, D-N.Y., have sponsored similar bills to expand the FMLA, although neither office expects to see movement this year.  

In June, President Barack Obama called for expansions of the family leave program at the White House Summit on Working Families. But with Congress stuck in gridlock, advocates have focused their efforts on the state level. While the Pennsylvania bill is focused on unpaid leave, the bigger push is for paid leave for major events such as childbirth.  

“The reality, particularly for workers in low-wage jobs, it’s effectively impossible to take unpaid leave,” said Liz Watson, director of workplace justice at the National Women’s Law Center, one of the groups pushing for a FMLA expansion.  

Obama praised three states — California, New Jersey and Rhode Island — that have created paid family leave insurance programs that build on their longstanding state temporary disability insurance programs.  

Within the past year, Minnesota has expanded the use of flexible sick time to include taking care of family members; Maryland has created a state FMLA to include new parents in smaller businesses; and Connecticut, Vermont and New Hampshire have convened task forces to study options for paid family leave.  

Interest groups, finding a friendly president and a hostile Congress, have pushed the administration to do more, including creating preferences in awarding federal contracts to employers who provide broader types of family leave. The president took similar steps on minimum wage, refusing contracts to private companies that do not raise the minimum wage to $10.10. “What we saw with $10.10 is that some employers have followed suit and raised their wages; it set an example,” Watson said.  

The business community is hesitant to take on additional burdens. A spokesperson for the U.S. Chamber of Commerce said it had not taken a position, but Alex Halper of the Pennsylvania Chamber of Business and Industry, who testified against Joanne’s Law, says businesses want to see improvements to the existing FMLA rules before any kind of expansion.  

“Our members report difficulties and challenges administering FMLA,” Halper said. Issues such as intermittent leave and qualifying reasons can be difficult for employers to track. Halper cites examples of individuals abusing FMLA. “Frankly, we know this is certainly a minority of individuals, but there is potential for misuse. The most common days FMLA is used is around vacations, or Mondays and Fridays. We’ve heard that if a vacation request is denied, FMLA will be used instead.”  

In a 2012 report, the Labor Department found FMLA imposed a “minimal burden” on employers, and employees actively made use of benefits.  

Advocacy groups see paid leave as the brass ring of FMLA expansions, said Vicki Shabo, vice president at the National Partnership for Women & Families. “All of the evidence shows that the U.S. is behind the rest of the world when it comes to paid family and medical leave.”  

(A version of this article originally appeared in the Sept. 29 issue of CQ Weekly under the headline, “(Almost) All in the Family”.)

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