Categorized | Workplace

The Flaws in Family Leave

Posted on 25 January 2011

It sounded like a no-brainer at the time: In 1993, President Clinton signed the Family and Medical Leave Act (FMLA), ensuring that parents would not lose their jobs if they took time off to care for a seriously ill child.

But, like many well-intended laws, the FMLA has produced unintended consequences–resulting in confusion and conflict in the workplace, critics say. The act applies to employers with 50 or more workers and grants full-time employees the right to take 12 weeks of unpaid leave a year for specified family and medical reasons. Health benefits must continue to be paid during this time. After the leave, the employee must be reinstated to the same job or an equivalent one.

We recently spoke with James Walsh, author of Mastering Diversity (Merritt Publishing), a guide to anti-discrimination laws. He pinpointed some of the FMLA’s more troubling ripple effects.

Getting the same job back doesn’t always mean getting your career back.

For one thing, the act is too vague: “It’s a well-intended act rife with unintended consequences,” according to Walsh. “There’s a mechanical reason for this. It’s conceptually poorly structured. As opposed to, say, the Civil Rights Act of 1964, which clearly spelled out what the problem is and what is prohibited, the Family & Medical Leave Act has loosely defined its issues. In many cases, we aren’t dealing with a family member facing a critical illness. Employees are asking for family leave, really, because they’re having difficulties dealing with life–the kid gets a cold and the parent wants six months off.”

Truth vs. Reality

Sound like an exaggeration? Don’t jump to conclusions. In his book, Walsh details the case of an insurance claims examiner who took a whole week off because her son had a 24-hour fever. Once terminated, the employee sued, citing the FMLA. (She lost the case.)

“There is abuse there,” Walsh says. “There are a lot of people who will use this act as a backdoor way to deal with difficulties that many of us handle without taking leave. They say, ‘I’m overwhelmed with life and need six months to get myself back on track.’”

Getting the same job back doesn’t always mean getting your career back. Workplaces are far too individualistic these days to fit a square peg-square hole federal mandate. “You may be entitled to an extensive leave,” Walsh says, “but the fact is, you will likely harm your career track in some way. The law preserves your job, but it can’t guarantee career-track advancement. The law doesn’t ensure that bad consequences won’t come about because of your decision to leave. You may lose a project, for example, that would have advanced your standing in the company.”

A Gender Issue?

Men should be allowed to take family leave just as readily as women. Modern fathers strive to be active, sympathetic, and ever-present parents, right? In reality, however, the FMLA doesn’t really support that notion.

According to a survey by the Conference Board, a New York-based business research group, 75 percent of men report feeling a sense of risk if they decide to take FMLA time off. “This act was meant to be a gender-neutral one,” Walsh says. “But men, when asking to take leave, have been told quietly by their bosses ‘Hey, this is a woman’s thing. I know the law says you can take the leave. But do you really want to risk your career?’”

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