Few workers invoke US family-leave law

Number who take time off to care for family ticks up under a 1993 law, but lack of pay is a big obstacle

Julie Shields and her husband, Ed Peartree, planned well ahead for the births of their children.

They squirreled away some savings so she could take an unpaid leave from her law firm to be with their firstborn. They followed the same plan for the arrival of their second daughter, except this time it was Ed's turn to take a break from work.

US law entitled each to take time off from work for family reasons – without pay – and still hold onto their jobs. But their experiences could not have been more different.

Ms. Shields, an expert on the Family and Medical Leave Act (FMLA), worked for a Washington law firm that was "positive and supportive" about her leave. Mr. Peartree, though, ran headlong into co-worker resentment and managerial resistance. One colleague sniped that she should get to stay home and play with her dogs, and a senior boss, a father of five, warned Ed not to take a month off because it would have a negative effect on his career, his wife recounts.

The couple is among the 60 percent of America's workers who are eligible to take a prolonged leave from work for family reasons. They are also among the few who actually do.

Since Congress enacted the FMLA with great fanfare almost a decade ago, employers report that 6.5 percent of workers have used the law to take time off – up from 3.6 in 1995.

Workplace pressures like those Peartree encountered are a deterrent. Indeed, in a long-standing lawsuit brought by a former Maryland State trooper who sought to take a parental leave under FMLA, his employer's refusal to grant it may cost the state – or his supervisor – dearly. A federal judge is poised to decide the damage award before Labor Day.

But an even bigger obstacle, according to a year-old federal study, is that most workers feel they cannot afford to take up to 12 weeks off without pay.

"The FMLA is almost worthless for most American workers because it is unpaid and therefore rarely utilized, and then usually by ... higher-income workers," says Shields, who became expert in the law while writing a just-published book on shared parenting.

The law is intended to help workers balance family and career – particularly at challenging times such as the birth of a child or a serious health problem within the family. Indeed, it provides job security for people facing such situations, even if it does not provide financial security in the form of paid leave. (Paid leave exists under federal disability law, but care for family members is not included.)

In a 2000 survey by the Society for Human Resource Management, two-thirds of the human-resource managers polled reported that, because of the FMLA, their companies have kept some employees who would have otherwise been fired for failure to meet attendance standards.

A distant drumbeat for paid leave

But there's a growing sense within the workforce that FMLA is not enough.

"Protection offered by the FMLA is limited in comparison to the pressure [on workers] created by competing demands," says Joshua Davis, an employment law expert at the Boston law firm of Hill & Barlow. "The work-life balance is, as working people know and the day-to-day experience of employers demonstrates, a constant issue."

California has gone farthest down the path of giving workers more help. A bill requiring workers to be paid during family-based leave has been approved by the state Senate. At press time, the state Assembly was poised to vote on the measure, which has been amended so that workers collectively pick up the tab instead of splitting the cost with employers. Even with the changes, employers – concerned that the added benefit will hurt profitability – oppose the bill. If the bill is enacted, California would be the first state to adopt paid family and medical leave.

Last year, 15 states considered legislation that would extend unemployment insurance to cover leave for new parents, but none of the bills passed.

Poor timing?

Now may be a difficult time to pursue the idea of paid time off.

"The economy is such that legislatures have far more pressing matters of concern, and imposing greater financial obligations on employers is not going to sit well with the business community," says Larry Peikes, an employment attorney at the New Haven, Conn., law firm of Wiggin & Dana.

As for prospects for change at the federal level, there is "virtually no way" the Bush administration would support any such measure, he says.

US firms vary widely in the ways their corporate cultures have adapted to FMLA's allowances for unpaid leave, as the experience of Shields and Peartree shows.

Most employers, a US Labor Department survey shows, shift the duties of a worker on leave to other employees, rather than hiring a temporary replacement or postponing projects.

Companies that resist doing that – and that even offer paid family and medical leave to workers – may reap benefits of low staff turnover and a dedicated workforce, some experts say.

"Employers who choose to provide more than the law requires reap benefits in employee morale and loyalty and, as a consequence, find that they are less often the target of employment-related lawsuits," says Mr. Davis.

Are You Entitled to Family Leave?

How it works

Workers are entitled to as many as 12 weeks of unpaid leave in a 12-month period for any of these reasons:

• The birth of a child or to care for a newborn within 12 months of the birth.

• Adoption or the placement of a foster child within 12 months of the placement.

• Caring for a spouse, child, or parent diagnosed with a serious health condition.

• Inability to work because of a serious health condition.

Time off does not have to be consecutive. Workers may take small segments of time – hours or days – so long as they remain within the 12-week total.

Who's eligible

• All public employees – federal, state, and local – and people employed by private-sector firms with 50 or more workers.

Other requirements

• You must have worked for your employer at least 1,250 hours during the 12 months before an FMLA leave.

• You must work at a location where at least 50 employees work within 75 miles of the location.

For information go to this US Department of Labor website, www.dol.gov/elaws/fmla.htm, or call toll free 866-487-9243.

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