Family and Medical Leave Act of 1993

Provisions

The law recognizes the growing needs of balancing family and work obligations and promises numerous protections to workers. Some of these protections include:

* Twelve (12) workweeks of leave per twelve (12) months for various reasons such as

          o Caring for a newborn child

          o Handling adoption or foster care placement issues

          o Caring for a sick child, spouse or parent

          o Being physically unable to perform one's job

* Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.

* Protection of employee benefits even while on leave. An employee is entitled to reinstatement to all benefits that the employee was receiving before going on leave.

* Protection of the employee to not have their rights under the Act interfered with or denied by an employer.

* Protection of the employee from retaliation by an employer for exercising rights under the Act.

Generally, the Act ensures that all workers are able to take extended leaves of absence from work to handle family issues or illness without fear of being terminated from their jobs by their employers or being forced into a lower job upon their return.

The leave guaranteed by the act is unpaid, and is available to those working for employers with 50 or more employees within a 75 mile radius. In addition, an employee must have worked for the company at least 12 months and 1,250 hours in those 12 months. The benefits in the Act are in stark contrast to far more generous and proportedly gender-neutal policies elsewhere, such as Sweden. Swedish parental leave provides 480 days (16 months) of paid leave (80% or more of wage) with similar return benefits as its American counterpart, and includes explicit goals to stimulate national gender equality.

The act also applies to all U.S. government employees and state employees. In 2003, the Supreme Court of the United States, in a 5-4 decision, upheld FMLA coverage for state employees in Nevada Department of Human Resources v. Hibbs. The state of Nevada had unsuccessfully challenged the provisions under the Eleventh Amendment to the United States Constitution.

The U.S. Code cite is 29 U.S.C. sec. 2601.

History

The act was drafted by the National Partnership for Women and Families (formerly known as the National Women's Defense Fund) a nonprofit, nonpartisan organization that uses public education and advocacy to promote fairness in the workplace, quality health care, and policies that help women and men meet the dual demands of work and family. The National Partnership also played a prominent role in the passage of the Pregnancy Discrimination Act of 1978.

Controversy

Critics of the act have suggested that, by mandating various forms of leave that are used more often by female than male employees, the Act, like the Pregnancy Discrimination Act of 1978, makes women more expensive to employ than men in general. They argue that, in response, employers will engage in subtle discrimination against women in the hiring process, discrimination which is much less obvious to detect than pregnancy discrimination against the already hired. Supporters counter that the act, in contrast to the Pregnancy Discrimination Act of 1978, is aimed at both women and men, and is part of an overall strategy to encourage both women and men to take family-related leave in equal proportions. Indeed, if women and men took leave equally often, the criticism would fail.

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