The Family And Medical Leave Act of 1993

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Abstract

This paper is an attempt to trace the legislative development of the Family and Medical Leave Act of 1993.  First, the author identifies the problem that initially required the attention of the government policy-makers, then goes on to describe the agenda-setting process that the issue underwent, at the same time identifying the major players involved in the process of policy formulation.

The Family and Medical Leave Act of 1993 (FMLA).

         The FMLA, twice vetoed by President George H. W. Bush – in 1990 and then again in 1991 – finally became a law when it was signed by President Bill Clinton when he assumed office in 1993.  It took effect on August 5, 1993 for all public offices and those private companies where no collective bargaining agreements (CBA) were in force.  For employers with active CBAs, its effective date was February 5, 1994, or upon the expiration of their CBAs, whichever came first.  It granted qualified employees working in the United States, its territories and possessions, a maximum of 12 weeks of unpaid leave every year for specific medical reasons involving their immediate families, without fear of losing their jobs as a consequence. (U.S. DOL, 2007) #5

The Issue

            The problem involving the family and medical leave first became a public concern during the 1940s when the share of women in the national labor force reached a substantial level of about 28%.  Considering the traditional role of women not only in childbearing and childrearing but also in caring for sick family members, the maternity leave problem for women workers began to let itself felt by then.  Initially, the issue concerned two underlying points:  first, whether pregnant women should be permitted to continue working and, second, whether they should be allowed to return to work after giving birth. (Smith & Bachu, 1998.)

The Reactions

 By 1942 the Women’s Bureau of the United States Department of Labor already proposed a 14-week leave for pregnant working women:  six weeks before and eight weeks after childbearing. (Lovell, 2000)   However, nothing much came out of this initiative from the Women’s Bureau.  Even the Civil Rights Act of 1964, which prohibited discrimination based on sex, had not been specific about pregnant women.  Meanwhile, state initiative in a related field emerged from 1975 to 1978 when 23 states enacted laws directing that maternity leave be covered in health insurance packages. (Dube & Kaplan, 2002)  On December 7, 1976, however, the United States Supreme Court came out with a controversial ruling relative to the Civil Rights Act of 1964, in the General Electric vs. Gilbert case.  It said that pregnancy was not a sex-based discrimination issue, therefore, a company is allowed to simply omit it from its disability policy and still not violate the provisions of the Civil Rights Act of 1964 which prohibited discrimination based on sex, among others.  The decision resulted to a public outcry and quickly prompted workers’ and women’s groups to demand Congress to come out with a clearer explanation of the law.  Finally, in 1978, Congress reacted by amending the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA) was signed into law on October 31, 1978.   The PDA provided, among others, the treatment of pregnancy as a disability and therefore warranted the same benefits given to other employee disabilities.  It also guaranteed security against termination, job denial, or promotion discrimination for pregnant women. (Rios, 1998)

            However, the PDA, in turn, proved inadequate.  In 1984, a federal court in California ruled maternity leave to be sexually discriminating – this time, against male employees.  This decision again started the hunt for just the right law to address the issue.  Advocates for a family medical leave which would apply to both male and female employees emerged. (Mayes, 2004)  Reacting to the same court decision, Congressman Howard Berman (D-Ca) approached the  National Partnership for Women & Families (formerly the Women’s Legal Defense Fund) to solicit its help in putting together a proposal for a stronger bill that would compel employers to allow maternity leave.  The National Partnership for Women and Families (National Partnership), however, decided to endorse a broader concept that would deal not only with the maternity leave issue but also the other medical needs of both working mothers and fathers, like attending to their sick children and the medical needs of other household members. (Asher & Lenhoff, n.d.)

The path to the FMLA

            The approach adopted by the National Partnership was based on the concept that the leave required by women should not only be limited to pre-natal and post-natal absences from work.  They argued that the responsibilities of a mother to her offspring do not end after a month or two of post-natal care.  According to them intermittent absences from work are sometimes necessary because of the continuing demands of childrearing.  Moreover, they contend that fathers should also be allowed leave because sometimes situations arise when the presence of the fathers are needed more at home.(Asher & Lenhoff, n.d.)

             The National Partnership embarked on the task of building a strong coalition needed to spark a strong initiative to influence a major policy involving as basic an issue as family and medical leave.  According to Asher & Lenhoff (n.d.), the membership of the Family and Medical Leave Coalition included

Feminist law professors, the Association of Junior Leagues, the Children’s Defense Fund, the League of Women Voters…the American Association of Retired Persons, Alzheimer’s Association, Catholic Conference, Hadassah, United Steelworkers of America, American Academy of Pediatrics, and more than 100 other groups focused on women, children, and seniors, and on issues of labor, disability, religion, and civil rights.

            The coalition did everything in its power not only to obtain bipartisan support in Congress but also gain popular support in the grassroots level.  It waged its campaign on all fronts:  they testified and looked for effective witnesses for the House and Senate hearings; they recruited allies in Congress; they came up with testimonials from sympathetic employers about the benefits of family leave for business; and even prepared model legislations and assisted in passing similar laws in the state level to help ease the way for this federal undertaking. (Asher & Lenhoff, n.d.)

            On the other hand, the family leave faced well-financed opposition from the ranks of businessmen and trade organizations.  These groups thwarted every move made by the coalition and were supported in their efforts by “the Society for Human Resource Management (an organization of personnel managers), the National Federation of Independent Businesses (the small business lobby), and the United States Chamber of Commerce.” (Asher & Lenhoff, n.d.)  The nature of the opposition explains why the struggle for a family and medical leave not only took nine long years despite strong bipartisan support in Congress – it also needed a change in the administration.

The struggle in Congress

The 99th Congress

         The FMLA was first introduced in Congress on April 4, 1985, by Representative Patricia Schroeder (D-CO), with 45 Cosponsors as HR 2020 or the Parental and Disability Leave Act of 1985. (Workplace Flexibility, 2005)  It provided for 18 weeks for every two year period, of “unpaid parental leave for the birth, adoption, or serious illness of a child and 26 weeks over a 12-month period of unpaid medical leave for employees’ own health conditions.”  This bill was applicable to businesses which had at least five employees.  The first joint hearing by the “subcommittees on Labor-Management Relations and Labor Standards of the Committee on Education and Labor, and the subcommittees on Civil Service and Compensation and Employees Benefits of the Committee on Post Office and Civil Service was conducted on October 17, 1985. (Lenhoff, 1998)  This bill died in committee.

            The following year, another version of the family leave bill, this time HR 4300 or the Parental and Medical Leave Act of 1986, was introduced by Rep. William Clay (D-MO) and 126 Cosponsors on March 4, 1986.  A month later, on April 9, 1986, Senator Christopher Dodd (D-CT) and 4 Cosponsors filed Senate bill S.2278 with the same title. (Workplace Flexibility, 2005)  Both bills had the same provisions as the previous HR 2020, but the minimum level of employees was raised from 5 to 15. On April 9, 1986, the subcommittee on Civil Service and Compensation and the subcommittee on Employee Benefits of the House Committee on Post Office and Civil Service held a joint hearing on the bill.  Two weeks later, on April 22, another joint hearing was held, this time by the subcommittees on Labor Standards, and Labor-Management Relations of the House Committee on Education and Labor.  However, by May 8, 1986, it was reported that HR 4300 was already thrown out of the two subcommittees of the Committee on Post Office and Civil Service, and finally, by June 11, the bill was voted out of the full Committee, 18 to 0.  Meanwhile, over in the House Committee on Education and Labor, the bill was voted out 8 to 6 in the subcommittee on Labor-Management Relations on June 12 and was finally out of the full committee by June 26.  While the Committee on Rules approved the Open Rule in order to consider HR 4300 on September 17, no further action was anymore taken until the 99th Congress adjourned. (Lenhoff, 1998)

The 100th Congress

The FMLA and Senator Christopher Dodd (D-CT) made a comeback in the 100th Congress with the introduction of the Parental and Temporary Medical Leave Act of 1987 (S. 249) on January 6, 1987 with 13 sponsors.  In the House, Representative William Clay likewise returned to introduce HR 925 or the Family and Medical Leave Act of 1987 on February 3, 1987, this time with 151 Cosponsors. (Workplace Flexibility, 2005)  These two bills contained the same provisions as the 1986 version.  The Senate Subcommittee on Children, Families, Drugs and Alcoholism conducted several hearings on S. 249 in different states, i.e.:  February 19 – Washington, D.C.; April 23 – Washington, D.C.; June 15 – Boston, Massachusetts; July 20 – Los Angeles, California; September 14 – Chicago, Illinois; October 13 – Atlanta, Georgia; and October 29 – Washington, D.C.  However, the bill died in committee.

HR 925, on the other hand, went through a different route but nonetheless suffered the same fate.  The subcommittees on Labor Standards and Labor-Management of the Committee on Education and Labor conducted joint hearings on February 25 and March 5.  However, a week after, on March 13, the bill was already voted out of the subcommittee on Labor-Management relations of the Committee on Education and Labor.  Another joint hearing was conducted by the Post Office and Civil Service’s subcommittees on Civil Service and Compensation and Employee Benefits on April 2.  But again by May 5 and May 19, the bill was already out of the subcommittee on Civil Service and Compensation and the subcommittee on Compensation and Employee Benefits, respectively.  November 17 saw the bill being outvoted by 21 to 11 from the Committee on Education and Labor.  However, an amendment was introduced by Marge Roukema, providing for an unpaid family leave of 10 weeks in lieu of 18 weeks, and a 15-week unpaid medical leave instead of 26 weeks.  Furthermore, coverage was raised to employers with at least 50 employees during the first 3 years of its taking effect, and then down to 35 employees on the fourth year onwards.  This amendment notwithstanding, HR 925 was on its way out of the House Committee on Post Office and Civil Service by February 3, 1988.(Lenhoff, 1998)

Senator Christopher Dodd was not yet ready to throw in the towel so on June 8, 1988, he filed another family and medical leave bill, S. 2488, with 28 Cosponsors. (Workplace Flexibility, 2005)  This bill, however, is a somewhat watered-down version with only “10 weeks of unpaid parental leave for [a] 24-month period and 13 weeks of medical leave for any 12-month period,” applicable to businesses with at least 20 employees. (Lenhoff, 1988) This bill was out of the Committee on Labor and Human Resources by July 14, 1988.  It was later debated on the Senate floor starting September 26, 1988, but was filibustered until October 7, when it suffered from a closure vote of 50 against 46. (Lenhoff, 1998)

The 101st Congress

            The same bill providing for a 10-week unpaid parental leave and a 13-week medical leave was re-introduced by Senator Dodd and 24 Cosponsors in the Senate as S.345 on February 2, 1989.  In the House, on the same day, Rep. William Clay filed bill number HR 770 or the Family and Medical Leave Act of 1989 with 151 Cosponsors (Workplace Flexibility, 2005), providing for a family leave of 10 weeks and a medical leave of 15 weeks, applicable to businesses with at least 50 employees for the first three years and 35 employees or more after the third year.  HR 770 was voted out of the subcommittee on Labor-Management Relations on February 28.  It was amended so that coverage could be extended to congressional employees, and public elementary and secondary school teachers, but was likewise voted out of the Committee on Education and Labor on March 8, 1989. In the Senate, S.345 was also outvoted in the Committee on Labor and Human Resources by 10 to 6, on April 19, 1989.  However, a modified Open Rule Consideration was granted for HR 770 by the Committee on Rules of the House of Representatives on May 8, 1990.  It was amended by the Gordon-Weldon substitute to reduce the 10-week family leave and the 15-week medical leave to “12 weeks per year for all circumstances covered in the bill, expanded the small-employer exemption from 35 (effective three years after enactment) to 50 employees, and expanded the conditions of family leave to cover spouses with serious health conditions.” Finally, the bill, as amended, passed Congress via a vote of 237 against 187 on March 10, 1990.  The Senate unanimously approved HR 770 on June 14, 1990.  Unfortunately, on June 29, 1990, President George W. Bush vetoed the Family and Medical Leave Act, or HR 770.  An attempt made in the House of Representatives to override the veto on July 26, 1990, failed, 232 to 195. (Lenhoff, 1998)

The 102nd Congress.

            The bill which was vetoed by President Bush was re-introduced as HR 2 on January 3, 1991.  Over in the Senate, on January 14, 1991, S. 5, or the Family and Medical Leave Act of 1991 was also introduced, providing for a 12-week unpaid family and medical leave for businesses with at least 50 employees.  On October 2, 1991, S.5, with a vote of 65 to 32, was passed in the Senate, “as amended by the Bond-Ford-Coats Substitute, which tightened notice and eligibility requirements and created enforcement mechanism parallel to Fair Labor Standards Act, among others.”  On November 13, HR 2 also passed by a 253 -177 vote margin.  After a House-Senate Committee met on August 5, 1992 the bill finally passed the Senate on August 11, 1992 and the House on September 10, 1992.  However, President George Bush again vetoed it on September 22, 1992.  The bill again failed to become a law because while Senate successfully overrode the veto (68 to 31), the House failed yet again by a vote of 258-169. (Lenhoff, 1998)

The 103rd Congress

            The bill vetoed by President George Bush in the 102nd Congress was again introduced as HR 1 on January 5, 1993.  In the Senate, the Family and Medical Leave bill was introduced on January 21, 1993, as S. 5, both House and Senate bills providing for a 12-week unpaid family and medical leave for businesses with at least 50 employees.  After the two bills passed both houses of Congress on February 4, 1993, President Bill Clinton signed FMLA into law on February 5, 1993.  It took effect August 5, 1993.

REFERENCES

Asher,L.J. & D. R. Lenhoff. (n.d.). Reports From the Field: Family and Medical Leave: Making

            Time for Family Is Everyone’s Business. The Future of Children. Retrieved February.

            10, 2007 from:

             http://www.futureofchildren.org/information2826/information_show.htm?doc_id=79387

Dube,A. & E. Kaplan. (2002). Paid Family Leave in California: An Analysis of Costs and Benefits.

            University of California, Berkeley.  Retrieved February 10, 2007 from:

            http://www.paidfamilyleave.org/pdf/dube.pdf

Lenhoff, D. (1998). Legislative Development of the Family And Medical Leave Act.  Retrieved

            February 11, 2007 from: http://www.uwm.edu/org/workfam/1998/98-64

Lovell, V. (2000). Paid Family And Medical Leave: Supporting Working Families in Illinois.

            Testimony Given to the Illinois General Assembly.  Retrieved February 11, 2007 from:

            http://www.iwpr.org/pdf/IL%20testimony%209-00.pdf

Mayes, G. (2004). Family and Medical Leave Act Comes of Age. Medscape Today. Retrieved

            February 10, 2007 from: http://www.medscape.com/viewarticle/489288?rss

Rios, D.M. (1998). Pregnant Workers Protected, But Bias Lingers. New Orleans: The Times-

            Picayune Publishing Co.. Retrieved February 10, 2007 from:

            http://www.ilr.cornell.edu/extension/iww/downloads/files/pregnantworkers.doc

Smith, K.E. & A. Bacher. (1999). Women’s Labor Force Attachment Patterns And Maternity

            Leave: A Review of the Literature. U.S. Bureau of the Census. Retrieved February 11,

            2007 from: http://www.census.gov/population/www/documentation/twps0032/twps0032.html

U.S. Department of Labor.(2007). Fact Sheet #28. The Family and Medical Leave Act of 1993.

            Retrieved February 11, 2007 from: http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm

Workplace Flexibility 2010. (2005). Eligibility For Medical And Family Leave Under the FMLA:

            Development of the Statutory Text 1985-1993. Retrieved February 11, 2007 from:

http://www.law.georgetown.edu/workplaceflexibility2010/law/fmlaFiles/fmla_EML_chart.pdf

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