Abstract

When the Family and Medical Leave Act ("FMLA") was enacted in 1993, it was considered landmark legislation.... Yet, despite the promise of the FMLA, by almost all accounts it has not achieved much.... Over the years, scholars have proposed many solutions to improve the FMLA.

[...]

In this article, I am taking a different perspective and proposing a reform that I have not seen proposed before. Of all of the problems with the FMLA, the one that gets the least attention is the frequency with which employees abuse their rights under the FMLA and the difficulty employers have administering the statute. In other words, very little scholarship analyzes the FMLA from the perspective of employers. After considering this perspective, I am proposing a two-part solution. The first part of my proposal is to sever the FMLA coverage for the birth or adoption of a baby and the care of family members (which I will call "care of others") from coverage for one's own serious health condition (which I will call "self care") and coverage for very short-term absences to care for others. The FMLA would continue to cover the birth or adoption of a baby and leave to care for family members, but only when the anticipated leave is longer than ten days in length. It would not cover short-term (fewer than ten days) absences for minor illnesses and injuries. The second part of my proposal is the enactment of a separate statute to deal with short-term absences for both the care of others and self care. Longer self-care issues are, I believe, adequately covered by the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008.

This proposal would accomplish something significant. It would curb the many abuses of the FMLA and greatly decrease the complexity of the statute. This would in turn decrease employers' hostility towards the FMLA. Much of the hostility towards the FMLA is related to the abuses of the self-care provision and the difficulty in determining whether someone meets the definition of serious health condition as well as the difficulty in tracking leave, especially when employees take leave on an intermittent basis. It is also my hope that decreasing the hostility towards the statute will have positive spillover effects. If FMLA leave is not viewed negatively by employers, perhaps they would be more willing to support (or less willing to oppose) other reforms that could provide increased coverage, or even some form of income replacement.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

Spring 2014

Publication Information

31 Hofstra Labor & Employment Law Journal 327-366 (2014)

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