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Hofstra Labor & Employment Law Journal

Abstract

When the Family and Medical Leave Act was enacted in 1993, it was considered landmark legislation, as the first statute that contained an affirmative obligation on some employers to provide up to twelve weeks of unpaid leave for certain enumerated reasons, including for the birth or adoption of a baby, to care for a family member with a serious health condition, or because of the employee’s own serious health condition. Yet, despite the promise of the FMLA, many scholars argue that its faults outweigh its benefits. Critics complain about: the large percentage of the population not covered by the FMLA; the fact that the FMLA provides leave for only narrow, enumerated reasons and thus does nothing to help alleviate the day-to-day work-family conflict experienced by most parents and caregivers; and the fact that the FMLA only requires unpaid leave, and thus offers little benefit to lower-income caregivers who most need the protection. Over the years, scholars have proposed many solutions to the FMLA. Most involve expanding coverage of the FMLA, expanding the reasons for which employees can take FMLA leave, and providing for portion type of paid leave.

Despite these numerous suggestions to fix the FMLA, this Article takes a different perspective and thus offers a different solution. This article considers the perspective of employers, who also criticize the FMLA. Specifically, employers complain about the complexity of figuring out who has serious health conditions and tracking intermittent leave; they also complain about the potential and actual abuses of the serious health condition provision of the FMLA. After considering this perspective, I propose 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 long-term care of family members (“care of others”) from coverage for one’s own serious health condition (“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 absences for minor illnesses and injuries. The second part of the proposal is the enactment of a separate statute to address short-term absences for both the care of others and self care. 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. If the 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.

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