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The Family Leave Law Is Failing Family Caregivers

On its 20th anniversary, some are pushing for a broader, paid leave

By Richard Eisenberg

The Family and Medical Leave Act (FMLA) just celebrated its 20 anniversary, but I’m not celebrating. It’s failing for many working Americans in their 50s and 60s who need time off to care for their parents, spouses or partners.
The law, which was the first piece of legislation signed by President Bill Clinton, has an admirable goal: guaranteeing up to 12 weeks of unpaid leave to workers recovering from a serious medical condition and those caring for seriously ill spouses, parents or children or for new children. The FMLA, which has been used at least 100 million times, also generally guarantees your job — unless you’re among the highest-paid 10 percent of employees where you work.
“It was one of the most significant advances for working families in the last couple of decades,” Debra Ness, president of the National Partnership for Women & Families, told me. 

(MORE: How to Care for Your Parent Without Losing Your Job)
True enough. But 40 percent of the workforce isn’t covered by the law. Here’s why the Family and Medical Leave Act isn’t working for many of the nation’s 42 million working family caregivers:
It’s unpaid, which often makes taking a leave financially impossible. That’s the number one reason people don’t take family and medical leave, says Ness. “For many workers, taking an unpaid leave is not a viable option,” says Liz-Ben-Ishai, policy analyst at CLASP (the Center for Law and Social Policy). Only 12 percent of private-sector workers have paid family leave.
It only applies to employers with 50 or more workers. So employees at many small businesses are out of luck.
It excludes recent hires. To qualify, you must have worked for your current employer for at least 12 months and for at least 1,250 hours.

(MORE: The Family and Medical Leave Act)
It doesn’t cover the reasons people often need to take time off to care for their parents. Ness says, under the law’s rules, you can’t take a leave to: shepherd your mom or dad to a doctor’s appointment, stay with your parent during a short-term illness or help him or her get resettled after moving from one type of care facility to another.
Under FMLA, the person needing your care must have a “serious medical condition.” That would include such conditions as strokes, Alzheimer’s, epilepsy and heart conditions.
It doesn’t let workers take a leave to care for their grandparents, in-laws, siblings or adult children. “Think of all the intergenerational families we have now,” says Ness.
“The fact that the law is an unpaid leave and excludes a lot of workers is a real problem, especially for boomers with rapidly increasing needs to care for their family members or recover from their own illnesses,” says Ben-Ishai.
But a recently introduced bill in Congress, known as The FAMILY Act (short for The Family and Medical Insurance Leave Act) could go a long way in helping family caregivers and plug the holes of FMLA — if it ever actually becomes a law.
And new paid sick-day laws popping up around the country will come in handy, too.

(MORE: Employers Must Do More to Support Family Caregivers)
The FAMILY Act, introduced by Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.), would provide paid family and sick leave to every worker regardless of how many people work at their employer or how long they’ve had their job there.
“So if you show up for a new job and your mother has a stroke a week later, you’d be eligible for benefits,” says Ness.
The legislation would create a federal insurance program, with an independent trust fund within Social Security where all employees and employers would kick in payroll contributions of two-tenths of 1 percent of wages, or roughly $1.50 per week for a typical worker. Like Social Security, wages would be taxed up to a cap of $117,000. You’d receive 66 percent of your pay during the leave, up to a maximum of $4,000 a month. (So it’s more like mostly-paid leave.)
Self-employed people would be covered, too, but they’d pay in both the employer and employee parts.
The FAMILY Act, which has no Republicans on board yet, has two flaws, though.
It still wouldn’t cover taking care of a grandparent, in-law, sibling or adult child. (Although it would include all same-sex partners, unlike FMLA, which applies to partners only if they’re married and live in a state recognizing same-sex marriage.)
And the definition of a “serious health condition” wouldn’t change. So the same caregiving needs excluded from the current law would still be off-limits.
That’s where the paid sick-day laws come in, since they’d prevent employees from seeing their wages docked if, say, they took a day off to bring their parents to doctors’ appointments.
There’s no federal law requiring paid sick days for workers — and nearly a third of the nation’s employees get no sick days — but New York City just joined Portland, Ore., San Francisco, Seattle, Washington, D.C. and Connecticut in mandating paid sick leaves. Those laws typically require businesses with at least five employees to provide up to five to seven paid sick days a year.
Lawmakers in other states, including Arizona, Maryland, New Jersey, New York and North Carolina, have proposed similar bills, according to The Wall Street Journal and the National Partnership for Women & Families.
Although more than 400 organizations have endorsed The FAMILY Act, advocates for the legislation concede it could take years to amass enough Congressional support for the bill to become law.
But they’re growing optimistic, partly because of President Obama’s Mad Men line in his recent State of the Union address. “A mother deserves a day off to care for a sick child or a sick parent without running into hardship — and you know what, a father does, too. It’s time to do away with workplace policies that belong in a Mad Men episode,” Obama said.
Says Ness: “I think the fact that he included it and was willing to put his support behind these policies is a breakthrough and will begin to change the climate to create one that’s more inducive to building support.”
Ben-Ishai also expects states will pass their own version of The FAMILY Act, “which will make federal action more likely.”
In the meantime, if you need a leave to take care of your parent or spouse, bone up on the FMLA rules (read the National Partnership for Women & Families online booklet, “Guide to the Family and Medical Leave Act”). Also, check with your state’s Department of Labor to see if there are state or local leave laws for residents.
And talk with your employer’s HR department or whoever handles benefits to learn about its leave policies and to explain your needs, as Amy Goyer, author of the free e-book, Juggling Work and Caregiving, recently told Next Avenue.
“A lot of employers are willing to work with employees to accommodate their circumstances,” says Ness. “Have a conversation.”
If you want to express your support for The Family Act to your Senators and Representative, sign the petition on the National Partnership for Women & Families site or the Caring Across Generations site. That could help make The FAMILY Act a reality.

Photograph of Richard Eisenberg
Richard Eisenberg is the former Senior Web Editor of the Money & Security and Work & Purpose channels of Next Avenue and former Managing Editor for the site. He is the author of "How to Avoid a Mid-Life Financial Crisis" and has been a personal finance editor at Money, Yahoo, Good Housekeeping, and CBS MoneyWatch. Read More
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