It may seem as though FMLA and similar laws are all designed to protect employees and not those who hire them. While protection of workers’ rights is clearly important, no law is designed with the intention of crushing businesses under a mountain of untenable regulations.
It is important to understand that laws such as FMLA serve as a framework for minimum acceptable standards. Many companies offer more than 12 weeks leave to employees, and a number also offer at least partial paid leave. Interestingly, a survey of 1,000 employers conducted by the research firm Hewitt Associates just at the time FMLA was becoming law in 1993 indicated that some 63 percent already had some sort of family leave program in place, and 56 percent had medical leave programs. To be sure, many of these companies were not offering benefits at the same level guaranteed under FMLA. But they were not ignoring employee needs, either.
During the economic boom of the 1990s, many companies found that they had to offer more and better benefits to attract employees from a shrinking applicant pool. In leaner economic times that line of reasoning does shift, but top companies have long known that one of the best ways to attract the best employees is to give them good benefits.
Sometimes it is difficult to get employees to take their full benefits. For example, even though FMLA allows men to take time off during and after the arrival of a baby, far fewer men take time off than women. Part of the reason is that in many companies there is still a perception that someone who takes time off to raise a child is not committed to his or her career. For men this is still a more difficult hurdle, since even in the most enlightened companies there is still the perception that men should exhibit an almost overriding commitment to their job. One thing that laws such as FMLA may ultimately do is help break down stereotypes like these, so that more people can benefit.
Laws such as FMLA, ADA, and Title VII are geared toward protecting employees, but that does not mean employers must bankrupt themselves to accommodate only a few employees who choose to take advantage of such protections. For example, under FMLA an employer has the right to know precisely what the leave is intended for. Lack of protection would give companies the right to terminate employees rather than give them even unpaid leave. But protection without requirements and guidelines could be misused by unscrupulous employees.
In the years since FMLA was enacted, a number of business groups have asked for adjustments and clarifications. Although there is much support for the spirit of FMLA, many say that as a practical matter there is too much room for abuse. Reports of people taking FMLA time off for the flu or a simple cold, or taking their FMLA leave time in small increments (so-called “intermittent leave” that allows people to take an hour at a time off, or even less, under the current regulations) only fuel the complaints of skeptics.
Ideally, the company and the employee should work together to find arrangements that are suitable to both. FMLA allows such flexibility. For example, an employee may choose to take FMLA-approved leave intermittently (perhaps a few days or a week at a time) during the year instead of in one 12-week chunk. Or the employee may be able to work on apart-time schedule.
