Donna R. Lenhoff has been General Counsel of the National Partnership for Women and Families since 1991. She first came to the National Partnership - then known as the Women's Legal Defense Fund - as its staff attorney in 1978.
One of the key architects of the Family and Medical Leave Act, Lenhoff has written and spoken extensively on balancing work and family, equal employment opportunity, and women's rights. She directs the National Partnership's pro bono litigation and government-affairs advocacy programs to achieve family-friendly workplaces. Lenhoff received her J.D. from the University of Pennsylvania and her B.A. from the University of Chicago, where she was elected to Phi Beta Kappa.
FCA: As a start, could you define the Family and Medical Leave Act?
Donna R. Lenhoff: The Family and Medical Leave Act (FMLA) is a federal law that protects workers' jobs and health insurance while the workers are temporarily out of work to care for a seriously ill parent, spouse or child. It also provides that job protection and continued health insurance for workers who take time off because of their own medical conditions or to care for a newborn or newly adopted child.
All of those conditions together are considered family and medical leave and they all are protected by this law because Congress saw them as compelling family needs that affect working families today.
The FMLA's job protection lasts for 12 weeks during any given year, so as long as the employee is not out of work for more than 12 weeks total during the year, for any of these conditions, the job is held and the health insurance is continued. A couple of caveats: 1) the employer has to provide health insurance in the first place; nothing in this law requires the employer to provide health insurance if the employer doesn't already do so; and 2) the FMLA only applies to workplaces that have 50 or more employees, and to employees who have worked for a year for the same employer and for 1250 hours in the year. These requirements, unfortunately, cut out a lot of people.
Something else important to know: under the FMLA, the 12 weeks of leave need not be consecutive; instead, leave can be taken intermittently if medically necessary. For example, let's say your spouse is in a car accident and for the first week or two you are in the hospital around the clock and not at work. Then there may be a period of recuperation in some sort of intermediate care facility for rehab, and you don't have to be there every day. So, you could go back to work for a month. When your spouse comes home and needs to be cared for at home -- requiring you to set up medical equipment and a new bed, and work out the schedule of home health aides, for example -- you could take another four weeks at that point. So, you may have taken off a total of five or six weeks and still have another six to seven weeks left to take off during the year. At the beginning of each year, the 12 weeks starts running again.
One more caveat: it does have to be a serious health condition of the parent, spouse or child. It can't be a minor thing. And, if you take time off to care for a parent, it has to be your actual parent, but parent is defined functionally to mean a parent who raised you. So, if you were actually raised by your aunt because your mother died and there was never a legal adoption, your job would be protected under the FMLA to care for your aunt. Or your step-parent. But you wouldn't be covered to care for an in-law -- unless you happen to have grown up with your husband and been raised by his mother or father -- a pretty unusual situation!
What is the definition of serious health condition? Does it cover chronic conditions that may have intermittent periods of crisis?
There's a definition in the statute and then an amplification of the definition in the Department of Labor regulations. That's because the Family and Medical Leave Act is enforced by the Wage and Hour Division of the U.S. Department of Labor, which has a toll-free number that people can call to get more information or if they have experienced an FMLA violation (1-800-959-FMLA). The law and regulations are also on their website. [http://www.dol.gov/dol/esa/public/whd_org.htm]
A serious health condition is defined as an illness, injury, impairment or physical or mental condition that involves either "inpatient care" -- which means an overnight stay in a hospital, hospice, or residential medical care facility -- or continuing treatment by a health care provider. The condition for which there's "continuing treatment" has to involve a period of incapacity as well as actual treatment. This includes treatment by a health care provider even on one occasion if it results in a "regimen of continuing treatment" under the supervision of the health care provider, like prescription medication. The Department of Labor regulations say that the "continuing treatment" could also be any period of incapacity, or treatment for such an incapacity, that is due to a chronic, serious health condition.
A chronic, serious health condition, in turn, is defined as one that requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider; continues over an extended period of time, including recurring episodes of a single underlying condition; and may cause episodic rather than continuous incapacity. Such chronic conditions would include asthma, diabetes and epilepsy. But nonserious health conditions, for example, a chronic cold, are not covered.
You have made reference in a variety of different ways to why the FMLA is important to caregivers. Are there any other ways you would like to comment?
When the FMLA was first passed, people thought of it as being about new babies -- despite the fact that it covered family medical conditions as well. I think the concept of new babies is so appealing in our society that the media focused on that. So it's a little-known fact that family leave also includes leave to care for a seriously ill parent, spouse or child (18 years old or under; for children who are considered disabled under the ADA, there's no age limit). And caregivers don't often think that they have the right to go to their bosses and say they need time off because of caregiving responsibilities. It just does not occur to people -- because they don't think of it as being similar to parental leave.
But in fact, in many ways it is similar: in both situations, there is a period of time when the employee really cannot be at work; she or he really has to be doing the caregiving. After a while, in the caregiving case, hopefully the serious condition is resolved and the family member-- the child, spouse or parent-- is better. So in both cases there is a period of immediate need when the event occurs, and that's the period protected by the FMLA 12 weeks of leave.
As the population ages, as medical care improves overall, and as managed care becomes even more dominant and people stay in hospitals less and less and are discharged to the care of their family members more and more, the need for family leave for caregivers will only grow.
Do you have any statistics or typical examples of caregivers taking off family leave for care of parents or spouses? What is the primary reason people take time off under the leave act?
Actually, 60 percent of leaves taken under the Family and Medical Leave Act are for the employee's own health -- that is, when employees are unable to work because of their own medical conditions. Another 17% of leaves are taken for the birth of a child or the placement of an adopted child in a family. Another 21% are for what I call "family members' medical leave," including 8% to care for a seriously ill child; 4% to care for a seriously ill spouse; and 9% to care for a seriously ill parent.
These statistics are from a survey that was done in 1994 and 1995, when the FMLA first was in effect. Demographics and people's understanding of the law may have changed since then so I'd be interested to know if those numbers for the three categories of family members' medical leave have increased.
Would you like to give some examples of caregiving needs?
Our website [www.nationalpartnership.org] has many examples of people who have taken time off for these leaves. For example, Velma Parness of California, who worked for a university, was the first person in her department to take off time under the Family and Medical Leave Act in 1993 or 1994. Her husband had earlier been diagnosed with a serious cancer, but had treatment and was doing okay. But then his condition deteriorated and he was told he had only a couple of months to live. So she requested family leave. It was a request that kind of flummoxed the department because they'd never encountered the situation before. But sure enough, they talked to their lawyers and discovered that she had the ability to take time off to care for her husband under the Family and Medical Leave Act, and they gave her the leave. She's very grateful for those two months because it enabled her to have that time with her husband before he finally died.
Another example is Lucy Sanchez, a woman here in the Washington, D.C., area, whose husband has had a series of brain tumors and been hospitalized and recovered several times over the last several years. She has been able to take advantage of the Family and Medical Leave Act to take care of him during those periods.
We also hear from a fair number of parents of kids with disabilities who are in many ways some of the most compelling cases of family members' medical leave. We all shudder at the idea of children alone in hospitals and the Family and Medical Leave Act has helped many parents be with their children in those situations.
Would you speak to some of the other aspects of family leave, for example, its being unpaid leave? What happens to caregivers who cannot afford to take unpaid leave? Or those who may not fall under the guidelines, for example, those who work for small employers?
While the FMLA can be very helpful, it does have the several big limitations that you mention. First, to be covered by the FMLA, you have to work for a company with 50 or more employees -- to be precise, 50 employees have to work within 75 miles of your worksite. So, if there are several branches of your company and they're within 75 miles of one another and among them there are 50 employees, you're covered. But if you are in a 10-employee office in San Francisco and the main office is in New York with 1,000 employees, you're not covered.
In addition, you have to have worked for a year for the company -- it doesn't have to be consecutive, but sometime in your life, you have to have worked for a total of a year for that company before you can be eligible under the FMLA; and you also have to have worked for the company for 1,250 hours within the immediately preceding year. This means that people who work less than about 25 hours a week would not be covered, or people who have worked seasonally -- e.g., you might have worked full time but only for four months and you wouldn't be covered.
People who don't meet the eligibility requirements are essentially in the same position the whole country was in before the Family and Medical Leave Act was enacted -- which is that they don't have any source of job protection from federal law. However, they might have job protection from a couple of other sources. One would be state law -- there are a few states that have lower thresholds for coverage, including Maine, Vermont, Oregon, and the District of Columbia. And some state laws provide leave for longer than 12 weeks; if your state law is more generous than the federal FMLA, then it prevails. But, if you're in a state that doesn't have a FMLA law or has a less generous law, the federal law prevails.
Another source of protection might be under a collective bargaining agreement negotiated by your union; if you have a union, you should check with it.
Another coverage problem is for state employees. Recently, some courts have held the Family and Medical Leave Act doesn't apply to state governments. I think they're clearly wrong, but the issue is likely to be resolved ultimately by the Supreme Court.
Does that hold true for federal employees?
No. There's no question, federal employees are covered.
One other possible source of protection--for example, where someone works for a company with 40 employees -- is if you have negotiated a contract with your employer that provides for leave not necessarily through a union but just an individual contract. In some states personnel handbooks are considered enforceable contracts -- this depends on state law. The bottom line on all that is that the major sources of protection, other than the federal law, would be state law or union rights.
There is also legislation pending both in Congress and in a number of states, including California, to lower the threshold for FMLA coverage, so that you'd be covered if you worked for a company of 25 or more employees within 75 miles. If they support that idea, your readers might want to send a note to their Senators and Representatives in Congress and the California Statehouse.
The other big problem with the FMLA of course, is that it only provides unpaid leave. What happens when people go on leave that's unpaid? Well, first, a lot of people don't go on leave because it's unpaid. They can't afford to; instead, they continue to work, generally at great personal hardship for themselves and their family members. Indeed, often when working people can't take time off to be caregivers their family members end up going into nursing homes sooner, and there is ultimately an impact on all of us because of the increased costs of Medicaid. I'd love to see a study on exactly what those costs are.
You won't be surprised to learn that the single biggest reason why people who need family and medical leave don't take it, is that they can't afford it: 64% of all such leave-needers give that reason. And for those needing but not taking leave to care for a seriously ill child the number is even higher -- 73%; 65% for those caring for a seriously ill spouse; and 61% for those caring for a seriously ill parent.
When people do get their leaves partially or even fully paid, the way they do it is to use accrued annual leave and if their employers let them, combine it with sick leave. Many people take only as much time off as is covered by these two paid leaves.
What else do people do to cover their lost wages? Of course people often combine several strategies: 44% of leave-takers use savings earmarked for this purpose (that's probably for new babies because few people earmark savings for taking time off to care for a seriously ill family member). Another 41% use other savings. 25% have to borrow money. 75% limit extras. 39% put off paying the bills. 40% cut their leave short. 9% go on public assistance. And indeed that last number more than doubles as family income drops: among people whose annual family incomes are less than $20,000, fully 21% go on public assistance during their family or medical leave.
That is actually not a surprising statistic since we receive many e-mails from around the country stating that the caregiver has quit their job and now they find themselves without any kind of income and without health insurance.
And they have to go on public assistance. I would wonder how many people quit their job not knowing that they could get at least 12 weeks so they could postpone quitting. They could go on leave, continue their health insurance, try to make other arrangements and perhaps figure out how to get back to work.
What policy recommendations are under consideration to assist those caregivers who can't afford to take unpaid leave?
I'm so glad you asked! At both the federal and state levels there are a lot of policymakers who are looking at this problem of unpaid leave and at its impact on other social systems like public assistance, Medicaid, and how health care is provided in this country; and trying to figure out ways to solve the problem. And when we've had such a long run of economic growth, it's a good time to start looking at different ways of solving this problem.
For example, some employers are voluntarily providing paid leave, some government employers in particular. The federal government, for example, is planning to allow people to use any accrued paid sick leave that they have, not only for their own illness but when they're out to care for a seriously ill family member, up to 12 weeks a year.
Another promising approach is to use existing state insurance systems as a source of income during family and medical leave. There are two major state insurance systems that could be built upon to provide some income for people who are on family leave for caregiving reasons (as well as for people who are on family leave for other reasons, like newborn babies).
Let me describe each of these two existing systems. The first one is state temporary disability insurance (often called "TDI") which is a kind of insurance that pays a portion of people's salary when people are themselves medically disabled and not able to work. State TDI programs cover periods of short-term disability and can provide a crucial bridge for people who are unable to work because of illness until they're able to go back to work. Five states (California, New York, New Jersey, Rhode Island and Hawaii) as well as Puerto Rico require employers to provide temporary disability insurance now, and their systems all run in the black. They've been around for 50 years and cover 22% of the private workforce.
Those systems could be expanded so that you could collect insurance not only when you are out because you yourself are disabled, but also because you're taking care of a family member who is on medical leave, or disabled in some way. In fact, in California, the Governor recently signed a law that commissions a study on what the costs and benefits would be of expanding disability insurance to include insurance for people who are caring for family members who are seriously ill (as well as parents of newborn or newly adopted children). New York is also looking into expanding its TDI system in this way -- there's an active coalition working on it -- and legislation has been introduced in New Jersey as well.
The second existing system that some states are looking at is using their unemployment insurance systems to provide some pay for periods when people are temporarily out of work because of caregiving responsibilities -- which could include caregiving for family members' medical needs. Right now, Massachusetts, Washington state, Connecticut, New Hampshire, Vermont, Indiana, and Maryland are all considering some form of this approach. (We have a round-up of different state efforts on these fronts up on our website, so people can look and see if anything's going on in their state.) In Indiana, the state Assembly has passed a bill to provide paid parental leave through UI; hearings on similar bills have been held in the past month in Vermont, Washington state, and Connecticut.
Canada provides payment during leave for caring for newborn children and seriously ill children through their unemployment system. So there's a close parallel here to using unemployment for caring for family members with medical needs.
Cost estimates for these options vary widely, depending on how many weeks of unemployment would be provided, what the eligibility requirements would be, and whether it would be for just new babies or extend to caregivers and people's own medical conditions. Estimates range from 11 cents per covered employee per week up to $1.45 per covered employee per week.
In Massachusetts, the whole program -- to care for newborn, newly-adopted children, seriously ill parents, children, and spouses and to recover from your serious medical condition -- is estimated to cost only $1.25 per covered employee per week. This totals about $200 million a year, and interestingly, last year there was so much money in Massachusetts's unemployment trust fund that the Governor had proposed an unemployment tax of just that amount -- $200 million. Essentially Massachusetts is being presented with a choice -- do they give better benefits to employees in this way, or do they give it back to the employers in the form of a tax cut?
The Labor Department has also entered this debate. It has issued a notice of proposed ruling (not a final rule yet) that makes it clear that states can use their unemployment systems to provide unemployment to people who are temporarily not working because they are caring for newborn or newly adopted children. This is a narrow interpretation of federal unemployment laws, but we think it's a good start. In fact, we urged the Labor Department to broaden the regulation to allow people to collect unemployment when they're temporarily not working because they are caring for seriously ill family members too.
So what this means is that the Labor Department's regulation will allow the states to go forward and pursue this, if they chose to, on a state by state basis?
Right. But as it's proposed, the Labor Department's regulation would only allow states to do this for leave for new babies or newly adopted children.
If they hear from enough people?
Perhaps, it could be broadened. They have set it up as an experiment so if states take up the option and pass it and it works well, it could be broadened at some point down the line. It's a good model.
There's some other supportive action going on at the federal level as well. In particular, Senators Dodd and Kennedy have introduced the "Family Income to Respond to Significant Transitions (FIRST) Insurance Act," which would provide funding to states that want to set up family leave income programs. That is broad enough that if states wanted to, they could include caregiving leave.
And the Clinton-Gore Administration's proposed fiscal year 2001 budget contains $20 million for planning grants, to allow states to come up with innovative policies in this area. There is a lot of interesting thinking going on at the federal and state levels around the ultimate goal of making family and medical leave more affordable for more working families.
Interview Date: March, 2000
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