Employment Law Term Paper

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FMLA

The Family and Medical Leave Act (FMLA) is an addition to the regulations applied to businesses which recognizes the changing nature of the family, and the importance of having a business environment which is supportive of the needs of the family. The FMLA requires employers to grant leaves of absence to employees who are seriously ill, who have newborn or newly adopted children, or who have to care for sick family members without the risk of the employee loosing their job as a result of the leave. Specifically, sections 6381 through 6387 of title 5, United States Code, as added by Title II of the Family and Medical Leave Act 1993, provides covered Federal employees with entitlement to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

the birth of a son or daughter of the employee and the care of such son or daughter; the placement of a son or daughter with the employee for adoption or foster care; the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions. (U.S. Office of Personnel Management, online)

Under the details of the act, upon return from FMLA leave, an employee must be able to return to the same position or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment." Further, under the guarantees of the FMLA, an employee who takes a FMLA leave is entitled to maintain health benefits coverage. An employee may pay the employee share of the premiums on a current basis or pay upon return to work.

The history behind the FMLA reflects the governments growing belief that reform in the employer guaranteed benefits was needed to meet the changing needs of American families because of the changing demographics of the workforce and society.

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The findings of the Act itself state:

(1) the number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly;

(2) it is important for the development of children and the family unit that fathers and mothers are able to participate in early childrearing ...;

(3) the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting. (Alfred, 1995)

The demographic shift was described in strong language in the Senate Report:

The effect of these demographic changes has been far reaching. With men and women alike as wage earners, the crucial unpaid caretaking services traditionally performed by wives -- care of young children, ill family members, aging parents -- has become increasingly difficult for families to fulfill. When there is no one to provide such care, individuals can be permanently scarred as basic needs go unfulfilled. Families unable to perform their essential function are seriously undermined and weakened.

Finally, when families fail, the community is left to grapple with the tragic consequences of emotionally and physically deprived children and adults. (Hayes, 2001)

As a result, the FMLA was drafted to fill in the gaps between other existing benefits legislation, such as the Title VII of the Civil Rights Act, and the 1978 Pregnancy Discrimination Act (PDA), and the 1990 Americans with Disabilities Act (ADA).

Dispute has arisen over the enforcement of the FMLA because of the costs involved for the employer. While no employer wants to take an anti-family stance, the costs of maintaining an employee's position in a company while they are on extended leave are enormous. The employer must either hire temps to fill in the position, or entice laterally positioned employees to handle the additional work load for a short period. In the case of the temp, the employer has to absorb the training costs. Then once the regular employee returns to his or her position, the employers.....

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