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Hofstra Labor & Employment Law Journal

Abstract

In the two decades since it was adopted, the Family and Medical Leave Act (hereinafter “FMLA” or “the Act”) has been consistently criticized for its failure to achieve its stated goal of enabling workers “to balance the demands of the workplace with the needs of families.” Since it was signed into law in 1993, legal scholars and women’s rights groups, while applauding the accomplishments of the Act, have expressed their dissatisfaction with the status of family and medical leave law in the United States. It has been argued that the FMLA should be expanded to cover more workers, for more reasons, for longer periods of time, and to provide for income replacement and a right to return to work on a part-time basis.

I echo the calls for more comprehensive job-protected leave. However, in this article, I focus exclusively on how FMLA’s bonding leave fails mothers. Specifically, FMLA bonding leave poses several primary and subsidiary problems for mothers, mother-infant bonding, and attachment. First, the FMLA poses accessibility problems through its stringent coverage limitations, eligibility requirements, and lack of income replacement. Due to these accessibility issues, the FMLA excludes most mothers from accessing its job-protected bonding leave, frustrating the primary congressional intention behind the bonding leave provision. Second, the FMLA poses subsidiary applicability problems due to the length, inflexibility, and vulnerability of the leave. The inflexible twelve-week bonding leave entitlement is therefore substantively lacking. It falls short of providing an environment that would facilitate healthy parent-infant bonding as intended by the Act. As a result of these primary and subsidiary dilemmas, FMLA’s bonding leave fails to address the bonding and attachment needs of mothers and infants.

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