Changes in FMLA Limit Maternity Leave Options

by S L · 2008-12-02 10:33:00 UTC
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Major changes to the Family Medical Leave Act of 1993 (FMLA) will take effect on January 16, 2009. The U.S. Department of Labor published amended FMLA regulations for the first-time in the Act's 15-year history in changes released in the Federal Register on November 17, 2008. The FMLA effects mothers particularly as it covers leave for the birth or adoption of a child, as well as leave to cover a sick child.

Although the enactment of the FMLA was an important success for moms' rights advocates, the law has always been arguably limited. For instance, the FMLA does not cover moms who work for a company with less than 50 employees, or moms who have been working with the employer for less than one year. Therefore, if a woman discovers she is pregnant soon after she changes jobs (when she would already be one-month pregnant), the new employer is not required to provide maternity leave under the FMLA. This case holds true even if the woman would have been covered by FMLA under her former job and did not know about the pregnancy at the time of starting her new job. New mothers with new jobs have no job protection since there are no exceptions for women who did not know they were pregnant or would become pregnant during the 3-month crack in the FMLA.

Furthermore, the leave granted by the FMLA is completely unpaid, so that many women are forced to return to work immediately after the birth of their newborn, simply because they cannot afford to take unpaid leave like these two bloggers: I am ohsoblessed and Historiann.

Beyond these prima facie problems, new mothers have also had further problems in application of the law. Employers have denied FMLA rights to new mothers who qualified for the leave, and have retaliated against new mothers for taking the leave. These amendments to the FMLA were drafted to correct some of these issues, which caused confusion and resulted in litigation. However, certain aspects of the new regulations will clearly hurt mothers in need of maternity leave to care for their newborns or newly adopted children. Among them:

  • Employers will be allowed to require "fitness-for-duty" evaluations to decide whether employees who took FMLA leave are fit to return to their specific jobs.

  • Employers will be allowed to consider FMLA absences to disqualify employees from bonuses or other incentives when the employee has not met a specified job-related goal due to FMLA leave.

  • An employer can force the employee to use all or part of her accumulated vacation, personal, family, medical, or sick leave concurrently with the FMLA leave, potentially eliminating an employee's ability to take any additional leave for the next year.

The changes do not guarantee any pay during maternity leave, and therefore will not guarantee women will be able to take the leave for childbirth. In addition, the new regulations apparently do not help with the problems of retaliation against employees who take leave, a problem compounded by maternal profiling. Indeed, the changes will arguably be more beneficial to employers than employees, since fewer people will qualify for leave under the new amendments according to the U.S. Department of Labor. The result: supposed clarifications with the new FMLA may actually cause increased confusion and litigation.

S L
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