July 7, 2008 – Page 1824
As the Bush administration nears the end of its term in office, the focus of much of its domestic policy making has shifted from legislation in Congress to executive branch regulations, where the debate is often less public and less contentious and desired outcomes are more plentiful.
In what may be one of its final regulatory acts, the White House is trying to tighten the leave-of-absence provisions of the 1993 Family and Medical Leave Act (FMLA), earning the approval of business interests and setting off a flurry of opposition from workers’ rights groups.
Proposed regulations, issued in February, respond to longstanding efforts by employers to make it more difficult for workers to take up to 12 weeks of unpaid time each year if they’re seriously ill or need to care for a newborn child or ailing family member, as the 15-year-old law allows.
The White House is still working on the rule change, and it’s unclear if officials will be able to finalize it before the administration’s tenure runs out. But regardless, the proposed federal crackdown on work leave comes just as the political and cultural winds appear to be shifting in the opposite direction. Democrats and some Republicans on Capitol Hill are moving to make it easier — not more difficult — for workers to take time off.
The law now covers government workers and those in companies with more than 50 employees. Pending bills would increase its reach to workers in smaller companies and mandate that at least some time off be paid.
The FMLA applies only to long-term leave, and no federal law requires employers to provide paid sick days off. But lawmakers are also writing bills to grant sick leave to the roughly half of American workers who now can’t take a day off without losing compensation.
“There’s some very vigorous work being done to ensure that workers can take the FMLA leave that they have right now, to ensure that those rights aren’t restricted, and to expand those rights by including paid time off,” said Vicki Lovell of the Institute for Women’s Policy Research.
Meanwhile, state and local jurisdictions are moving further along the path to guaranteed paid leave for workers. A few states already have laws guaranteeing workers at least some pay during long-term family and medical leaves, and many are considering such a move. On a parallel track ideologically, efforts to mandate that employers provide at least a week of paid sick days for short-term illnesses not covered by the FMLA are gaining steam.
Those efforts are progressing despite opposition from employers. The proposed new federal regulations mark the Department of Labor’s response to company complaints that some workers abuse the leave policy. Abetting the workers’ misapplication of leave time to non-emergency occasions, employers charge, are ambiguities in current rules governing the kinds of illnesses that qualify for long-term absences and regulations that allow workers to take leave with little or no notice.
Proposed revisions to the rules from the Labor Department would require that if workers want to take job-protected leave for up to 12 weeks, they either give 30 days advance notice to their bosses or explain later why they were unable to do so. To crack down on those who try to take off when they aren’t seriously ill, the new rules would require workers to visit the doctor at least twice within 30 days to qualify for extended medical leave.
As matters stand, officials may not manage to produce final rules before the next president takes office. The department received about 4,000 responses before the comment period’s mid-April deadline. Many of those comments are heated protests from unions and other employee advocates, who contend that employee fraud is overstated and that employers are looking to roll back the flexibility workers have gained under FMLA.
Leave policy in the United States tends to be very different from that in the rest of the developed world. According to one study by public policy researchers at Harvard University, 139 other countries guarantee long-term paid medical leave to workers and 117 of them mandate at least a week of paid sick days for short-term illnesses each year. The United States and Australia are the only industrialized countries that don’t guarantee paid maternity leave.
Some U.S. companies offer paid leave as an incentive to keep skilled workers, though the great majority don’t. The share of employers offering fully paid childbirth leave has actually dropped to 16 percent from 27 percent in 1998, according to a recent survey by the nonprofit Families and Work Institute, which also found that as many as one in five large companies provides no unpaid leave, in violation of the FMLA. The survey’s authors attribute the decline in paid leave to the rise in the cost of health benefits generally.
White House rules-writers and their critics in the labor movement are so far apart on the issue that they can’t even resolve basic empirical questions, such as how many workers are protected by the law in the first place, and how many avail themselves of time off.
According to the Labor Department, about 77 million workers — roughly half of the nation’s workforce — were covered in 2005, and about 7 million took unpaid leave that year. Workers’ advocates suggest, however, that those numbers are based on survey data collected in 2000 — and that the figures underestimate the number of people who take leave because more employees are now aware of their rights. Moreover, advocates point out, no government agency has ever actually tracked the number of people covered by the law.
Advocates for employees would like leave to be both universal and paid. “When you think about the health and well-being of families, especially families starting off or families facing a health crisis, it makes all the sense in the world to provide a modest benefit to help them out, so they’ll be ready when they come back to work,” said Kate Kahan, director of work and family programs at the National Partnership for Women and Families.
But business lobbyists counter that a federal mandate for paid leave would be an untenable burden, especially for small companies.
“Our thought is always to leave the employer the flexibility to work with their employees,” said Susan Eckerly, a vice president of the National Federation of Independent Business. Many small companies offer some type of paid leave even without a government mandate, she said.
Requiring paid leave at the federal level might cost $1,000 per worker each year, said Keith Smith, director of employment and labor policy at the National Association of Manufacturers, which opposes the legislation. “We’re already facing a 32 percent cost disadvantage compared to our largest industrialized trading partners,” he said. “Proposals like this will increase that gap.”
Business leaders may be losing that battle on the state and local level, however: Workers’ advocates say that state and local campaigns are making significant headway in the battle to ensure employees are compensated, both when they take long-term leaves and when they need to take a sick day.
In 2004, California became the first state to pass a law guaranteeing partially paid family leave. The program covers everyone who participates in the state’s disability insurance programs — a group that includes most workers, except government employees and some who work for nonprofit associations — and replaces about half of a worker’s salary for up to six weeks or 12 weeks for maternity leave. It’s financed by a small addition to worker disability insurance premiums, with no contribution from employers.
In New Jersey, Democratic Gov.
Legislatures from New York to Arizona have been considering similar measures, though most states don’t have disability insurance programs and would probably have to create them to implement paid leave. Under a disability insurance system, a small premium can be deducted from each paycheck and it’s easier to set it up so that workers, and not companies, cover the cost.
States and municipalities are making a similar effort to get mandatory paid sick leave on the books. In 2006, San Francisco voters approved an initiative that enacted the first local ordinance requiring employers to pay for sick time. The Washington, D.C., city council approved a similar measure in March. At least a dozen state legislatures are considering bills that would require paid sick days. And in Ohio, a union-backed initiative has been put on the November ballot.
Business groups are vigorously opposed, but advocates hope that such efforts will build enough support for the local and state programs to get something like them enacted on the federal level. Kahan says the state measures “could soon become a force as they cover more and more people.”
And labor activists can point to the FMLA itself as a precedent: Before Congress passed the 1993 law, 23 states had enacted their own guaranteed leave laws. Kahan also notes that the Ohio initiative might well be propelled into the national political spotlight, since the state is likely to be a critical swing state in the presidential election.
The positions of presumed presidential nominees
But electoral fortunes aside, Democrats in Congress are planning to move ahead with legislation guaranteeing some paid leave for workers with family and medical obligations. One measure, sponsored by Rep.
And a bipartisan measure in the Senate, sponsored by Alaska Republican
Workers’ advocates say that while they are currently fighting the proposed Bush administration regulations, they are concentrating on the future. Even if McCain wins and the next White House is less-than-hospitable to the concept of paying employees for time off, these advocates are hoping they can build enough support on both sides of the aisle to enact expansions, rather than contractions, of worker-friendly policies under the FMLA.
“I think a lot of what Congress is talking about now is framing the agenda for next year,” Kahan said.
FOR FUTHER READING: Paid parental leave for federal workers,