Parental Leave– FMLA in the United States

Parental leave and gender equity is a topic that transcends all cultures. We are all human and have the capabilities to reproduce, so taking a closer look at this topic globally opens an interesting opportunity for discussion. Parental leave laws can support new parents in two ways: by offering job-protected leave and by offering financial support during that leave. Many countries protect at least one parent’s job for a period of weeks, months, or years around the birth of a child. This job protection allows parents to take time to care for their infant or young child, secure in the knowledge that they will be able to return to the same (or a comparable) job at the end of the leave period.

Let's Get with the (Paid Leave) Program

Let’s Get with the (Paid Leave) Program

This graph is a great representation of the world in the context of paid maternity leave. The United States is still grayed out, not requiring paid leave. In the United States parental leave mainly falls under the Family Medical Leave Act (FMLA). Prior to its enactment in 1993, there was no job protected leave in the United States; it was left up to individual employers to the amount of leave, if any was to be granted.  In 1984, The Women’s Legal Defense Fund wrote the first draft of the legislation that would later become the Family and Medical Leave Act (FMLA). This organization is now known as The National Partnership for Women and Families, it continues to be passionate about making America more fair and family friendly.

FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.  It took nine years, from 1984 to early 1993, of sustained and organized effort to enact such a modest policy, unpaid leave, for families. This information itself is a metaphor for the difficulties confronting advocates for family policy in the United States today.

Even with FMLA, there are many specifications that automatically do not allow for citizens to gain even the menial job protection that the act provides. The FMLA only applies to employers that meet certain criteria. Private employers only have to follow FMLA if they have 50 or more employees in 20 or more work weeks in a calendar year. Public agencies (including a local, state, or Federal government agencies), regardless of the number of employees it employs; or public and private elementary or secondary schools, regardless of the number of employees they employ must follow FMLA. The next portion of FMLA discusses employee eligibility, because not every employee is eligible. If an employee works for an employer who must provide for FMLA, the following must also be true of the employee: work for the employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave. FMLA allows for eligible employees to take up to 12 work weeks of leave in a 12-month period for one or more of the following reasons in the context of parental leave: the birth of a son or daughter/ placement of a son or daughter with the employee for adoption or foster care, to care for a son or daughter who has a serious health condition. Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval. Under certain conditions, employees may choose, or employers may require employees, to “substitute” (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is not foreseeable 30 days in advance or is unforeseeable, employees must provide notice as soon as possible under the circumstances. Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

In the context of working within schools in the United States most peoples’ personal experiences with FMLA come when they need to take leave upon having a child. Most schools have collective bargaining agreements that speak to extended leaves within them. In the agreement in the school district that I work a child rearing and / or adoptive leave is allowed up to six semesters without pay (the equivalent of 3 school years) within a span of 20 consecutive semesters (10 school years) from the date of the first requested leave. Given this, there is a degree of job protection, although most of the time it is noted within the collective agreement that a position is saved for the person, but it is not necessarily the same position that he/ she left. For example if an elementary teacher goes out on leave and utilizes 6 semesters, he/ she should not expect to come back to the same elementary building and grade level, but instead an elementary position somewhere in the district. There is a limit of four consecutive semesters for any one birth or adoption (equivalent of 2 school years). After being granted the initial leave, the employee needs to make sure to apply in writing to extend the leave at least ninety days prior to the expiration of the leave; leaves may be requested on a semester by semester or year by year basis. After utilizing an extended child rearing leave, there are some penalties. While the job has been protected, accumulated service time (seniority) is frozen, and salary credit (raises) are recalculated based on the number of days of service within a school year.

From personal experience, all of this information was not something that I was truly cognizant of when I used FMLA after the birth of my first child. While it is written into the collective bargaining agreement, that document is over one hundred pages long, so I will admit to not having sat and digested the contents in its entirety. So, after taking the remainder of the semester off after having my son, I returned the next school year, somewhat surprised to find out that my salary and seniority for the following school year had been impacted by my leave. Mind you, while I was out on the leave, I received 6 weeks of paid time because I did have enough sick days to cover that maximum allowed paid leave; that is not true for everyone accessing FMLA. Since I extended my leave for the remainder of the school year (approximately 20 weeks in total) I also had to pay additional expenses for my insurance, once I reached the 12 week maximum of FMLA. In some jobs in the private sector women are able to access disability pay during at least the first 6-8 weeks after childbirth; within the schools this is not something that we are eligible for.

In researching this topic online it appears that some European countries have much better policies in regards to parental leaves. One article noted France and Spain to be the best in terms of total job protection, with up to 300 weeks of total protection. In terms of financial support, Sweden looks to be the best place to live if a parent wants to reap the maximum benefits, with 40 weeks of paid leave.

It makes me really wonder what this says about the United States as a nation in terms of caring for its citizens, the development of its youth, and the sanctity of the family organization.

______________________________________________________________________________________________________

www.dol.gov/whd/regs/compliance/whdfs28.pdf

http://www.nationalpartnership.org/issues/work-family/

http://www.cepr.net/documents/publications/parental_2008_09.pdf

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