Recognizing the difficulties that an increasing number of workers face when they combine job with family responsibilities, many lawmakers and activists fought for and won the passage of the Family and Medical Leave Act (FMLA) of 1993. Moving beyond prior legislation that allowed maternity leave, the FMLA mandates that employers provide up to 12 weeks of unpaid, job-protected leave for a worker’s own serious medical condition, maternity disability, care of a newborn or newly adopted child, or care of seriously ill children, parents, or spouses. The act also guarantees the continuation of any existing health insurance coverage during the leave.
More than 35 million women and men have taken job leave under the FMLA since its passage, averaging about 10 days. Although opponents decried mandated leave as potentially costly and harmful to productivity, a bipartisan congressional committee (in both 1996 and 2001) found that 90 percent of companies subject to the FMLA experienced no negative impact on productivity, growth, or revenues.
The passage of the FMLA in 1993, proudly claimed by President Clinton as the first bill he signed into law, was the culmination of more than a decade of political negotiation. It was vetoed twice by President George H. W. Bush and opposed (then and now) by business interests, including the Chamber of Commerce. Advocates of the bill included members of Congress, led by Senator Christopher Dodd (D-Connecticut) and former Congresswoman Patricia Schroeder (D-Colorado), to whom Dodd gives credit for conceptualizing the act. Unions, such as the AFL-CIO, 9 to 5, and CLUW, provided critical support for the passage of the act by testifying before hearings and lobbying Congress.
The FMLA moved beyond prior federal legislation, specifically, the 1978 Pregnancy Disability Act (PDA), which required only that maternity leave be covered under the provisions of any existing temporary-disability leave policy. The PDA did not require the establishment of any maternity leave in cases in which temporary disability leave was not available, nor did it allow use of such leaves for non-pregnancy-related family needs. Furthermore, there were no provisions for men to take any job leaves for parenting.
In contrast, gender neutrality in family leave taking was a primary goal of the FMLA, as stated by the early sponsors of the bill. In a 2003 Supreme Court ruling, the majority opinion reiterated this initial view.
Limitations of the FMLA
Albeit an important advance over prior policy, the FMLA does not provide universal protection for employees who need leaves to provide care for their family members. Employees are eligible only if they have worked for an eligible employer for at least one year and for at least 1,250 hours in the previous year. Eligible employers are public agencies or private employers with 50 or more employees working within a 75-mile radius. Those who work for small employers are uncovered, and the act also does not provide leaves for temporary workers, whose numbers are growing. Employers excluded from these provisions, about 90 percent of establishments, employ approximately 40 percent of the workforce. Furthermore, as Jane Waldfogel has reported, almost one-fifth of workers for covered employers do not meet eligibility requirements, leaving approximately 53 percent of the workforce ineligible for FMLA leave. The FMLA was clearly a major victory for those interested in promoting family-friendly laws, but a substantial portion of the workers who took leaves after the passage of the FMLA could have taken these leaves before its passage, because of state-level laws or leave policies enacted voluntarily by employers.
Although the FMLA theoretically provides gender-neutral access to leaves, actual leaves taken post-FMLA remain far from gender neutral: Women (especially married) take the overwhelming number of leaves. A large number of men take leaves, but typically when they themselves get sick or occasionally to care for some other family members (especially a seriously ill wife or newborn child). Women are more likely than men to say they need leaves, to take leaves, and to take longer leaves.
These enduring gender differences suggest that access to unpaid leaves is not enough to counter other influences that shape men and women’s leave taking. Why do such gender differences persist? A key problem is that leaves are unpaid. Even though both men and women are now allowed to take leaves to care for their families, men still earn substantially more than women; this means taking an unpaid leave is more expensive for them and their families than it is for women. The FMLA cannot seriously counter the inequalities rooted in the wage gap between men and women, a gap sustained by preexisting policies. Moreover, the FMLA was introduced in the context of existing legislation (the PDA) that provided paid disability leaves for some women. Thus men and women do not have similar access to useful family leaves, at least for infant care, because some women (but certainly not all) have paid leaves, but almost no men do.
Consequently, because leaves mandated by the FMLA are unpaid, such policy exacerbates rather than alleviates certain forms of inequality. At the same time, it helps stabilize the unequal division of family work—where women do far more than men—still so characteristic of families in the United States.
In addition to perpetuating gender inequalities, the provisions of the FMLA result in, or at least bolster, other inequalities among workers—by race, class, marital status, and sexuality. Although the FMLA does not specifically address racial or ethnic inequality, some research suggests that race and ethnicity play a role in the need for and ability to take family leave; that is, African Americans and Latino(a)s, whether because of greater health problems or greater exchanges with relatives, may need leaves more than Whites. At the same time, they are, on average, less able to afford unpaid leaves.
Moreover, race and gender operate jointly in their effect on people’s leave taking. Amy Armenia and Naomi Gerstel found that although there are no significant differences in leave taking between White women and women and men of color, White men are significantly less likely than any other group to take family leaves. This intersection of race and gender may be connected to cultural factors, such as the centrality of children or kinship more generally in men’s and women’s lives or economic factors such as wage differentials. There is some evidence that African Americans, especially women, are more involved with kin than Whites. Moreover, a larger wage gap exists between White spouses than between African American spouses. Both these differences may lead to more gender equality in leave taking among people of color than among Whites.
Given the provisions of the FMLA, marital status and sexuality also affect leave taking. Having a spouse or partner improves women’s and men’s financial abilities as well as their need to take family leaves. Because the provisions of the FMLA include spouses but not unmarried partners, lesbian and gay employees, like cohabiters more generally, can legally take leaves to provide care for their children but still in most states cannot take leaves for their partners or their partners’ children.
Research to date, although limited, suggests that class position affects both the ability of workers to take family leaves and the length of their leaves. Because leaves are unpaid, the working poor, whose numbers are large and growing, cannot afford to take leaves. And these are the workers most likely to have sick family members or to have no other paid-leave options. Research shows that although women with lower household income are more likely to perceive the need for family leaves, they have less access to family benefits in general and take less time off after childbirth than do women from higher-income households. When they do manage to take leaves to provide care for their families, the loss in income is often enough to push them below the poverty line. Approximately 9 percent of FMLA leave takers report that they go on public assistance to cover lost income. Furthermore, poorer employees also are significantly more likely to face pressure from their employers to return to work.
The FMLA provides a minimal level of benefits for many workers. For many workers, the availability of leaves, however, depends not only on the federal mandate provided by the FMLA but also on the policies and practices of their individual employers. Some research has examined whether different kinds of employers vary in the amount and kind of job leaves they provide. A number of authors contend that relatively privileged workers, especially union members and those working in large organizations with salaries rather than wages, are in better positions to negotiate with their employers for family leaves. Studies have provided mixed results. Some have found that large employers are more likely to offer leaves, either because of cost-effectiveness or greater social pressure. In contrast, comparing national (Current Population Survey) data from the pre-FMLA (1992-1993) with the post-FMLA (1994-1995) period, Jane Waldfogel found an increase in leave taking concentrated in “medium-sized” firms (100 to 499 employees) among working mothers with children under one year of age.
Inequalities in official provisions of leave taking are increased by organizations’ responses to those who ask for leaves. Employers may discourage family leaves, especially in large firms. Research shows that employers discourage lower-level employees from taking time off to care for their families. They also discourage men employed in the upper reaches of management: Mindy Fried found these men were particularly susceptible to informal pressures to keep working. As a result, many did not take parental leaves even when entitled to them. Many scholars suggest that workplaces that deny the validity or even the existence of family needs may have more influence on employees’ options than does official policy that supports such needs.
Finally, knowledge is crucial, but often lacking: Many workers are simply unaware of possibilities for leaves or other job benefits provided by employers. This is why many union leaders not only worked to get the FMLA passed but also continue to put much effort into telling workers about their legal rights and making sure that employers give workers the family leaves to which they are now legally entitled.
Paid Family Leave Policies
The limits of the FMLA become especially clear when we look at the policies in other nations. All European countries and Canada provide paid leave benefits to working parents. Most are universal. Most are funded by a variety of methods, including direct state funding and employee contributions to disability insurance funds. Providing not only job protection but also substantial income replacement, generous programs are common throughout Europe (although the length, flexibility, and level of payment they provide vary). In Sweden, for example, parents receive a full year-and-a-half paid parental leaves for each child (including 12 months at 80 percent of prior earnings).
Because so many parents—mostly mothers—use family leaves, fewer than 200 children under one year old in the entire country are in day care. In Norway, employed parents are entitled to leaves of absence of 42 weeks. Furthermore, the “fathers quota” reserves four weeks of this leave for fathers only. If the father does not use them, these four weeks of paid leave are lost to the family. The fathers quota, instituted to change the gendered division of caring labor, is being used by almost 70 percent of the eligible Norwegian fathers. Sweden and Italy have instituted “fathers quotas” as well, creating nontransferable leaves for fathers only. Although the U.S. welfare state clearly differs in many other ways from its European counterparts, these policies can help us understand ways to be responsive to the needs of families and the inequalities maintained by the FMLA.
Many groups in the U.S. are still working hard to introduce and implement policy that covers a broader range of workers and ensures that workers will receive at least some pay when they take time off to care for their families. The National Partnership for Women and Families is currently joining with others around the country to advance family leave insurance plans; they hope to expand current unemployment or disability insurance to provide some pay during periods of unpaid family and medical leave.
In 2004, the state of California enacted the first paid family leave policy in the United States. The California Family Rights Act went into effect in the summer of 2004, making workers eligible for six weeks of partially paid family leave. The leaves are funded by an employee payroll deduction, expected to average $27 per worker per year, that will go into a fund similar to the one used for unemployment insurance. The law is not a mandate for all companies; businesses with fewer than 50 employees do not have to hold a leave taker’s job open, and managers can deny an employee’s request for leave. Still, many see the law’s passage in California, home to one-tenth of the nation’s workforce, as a watershed; many states now have bills pending that are similar to California’s. Many are now working for the expansion of such paid leaves to the federal level so that more workers who must combine work and family responsibilities will be able to do so.
- Armenia, A. and Gerstel, N. Forthcoming. “Family Leaves, The FMLA and Gender Neutrality: The Intersection of Race and Gender.” Social Science Research.
- Cantor, D., Waldfogel, J., Kerwin, J., Wright, M. M., Levin, K., Rauch, J., Hagerty, T. and Kudela, M. S. 2001. Balancing the Needs of Families and Employers: Family and Medical Leave Surveys. Rockville, MD: Westat.
- Elving, R. 1995. Conflict and Compromise: How Congress Makes the Law. New York: Simon & Schuster.
- Fried, M. 1998. Taking Time. Philadelphia, PA: Temple University Press.
- Gerstel, N. and Clawson, D. 2001. “Unions’ Responses to Family Concerns.” Social Problems 48:277-298.
- Gerstel, N. and McGonagle, K. 1999. “Job Leaves and the Limits of the Family and Medical Leave Act: The Effects of Gender, Race, and Family.” Work and Occupations 26:510-534.
- Gornick, J. C. and Meyers, M. K. 2003. Families That Work: Policies for Reconciling Family and Employment. New York: Russell Sage Foundation.
- Gornick, J. C. and Meyers, M. K. 2003. “The Impact of the Family and Medical Leave Act.” Journal of Policy Analysis and Management 18: 281-302.
- Waldfogel, J. 2001. “Family and Medical Leave: Evidence from the 2000 Surveys.” Monthly Labor Review 124(9):17-23.