Who Will the New Family Medical Leave Act Help? And When?

Eight years in the making, H.R. 1--the new Family Medical Leave Act--sets the first federal guidelines for working Americans who need time away from their jobs to attend to the health conditions of themselves or their family members.

The 57-page measure is straightforward in intent. “It is important for the development of children and the family unit that fathers and mothers be able to participate in early child-rearing and the care of family members who have serious health conditions,” it declares.

Nevertheless, the legislation signed Feb. 5 by President Clinton does raise some questions--and, if the telephone calls to many congressional offices are any indication, some confusion as well.

Question: Does this legislation guarantee paid time off from my job?

Answer: No.

Q: How much unpaid leave am I entitled to?

A: Assuming your employer is eligible, you are entitled to 12 “work weeks” of leave during any 12-month period for one or more of the following reasons:

* 1. Because of the birth of a child, and in order to care for that child.

* 2. If you adopt a child or take a foster child into your home.

* 3. If you must care for a close family member who is suffering from a “serious health condition.”

* 4. If your own serious health condition makes you unable to perform your job.

Q: Are pregnancy and childbirth considered serious health conditions?

A: Yes.

Q: What if my employer already has provisions for paid leave under these circumstances? Can my boss turn around and use this legislation as an excuse to deny benefits I am already entitled to?

A: The Family and Medical Leave Act is clear in its intent to provide the most generous family and medical leave time possible. The new legislation will not supersede existing regulations that may be more liberal.

Q: What if I want to take time off to be a Cub Scout leader?

A: This legislation is concerned with keeping working families together during times of serious medical problems. Cub Scout meetings, while a worthwhile pastime, are between you and your employer.

Q: My law firm has 35 employees. Is it covered by this legislation?

A: The FMLA covers firms with 50 or more employees. Ninety-five percent of all private employers are thus exempted--but about 60% of all workers are covered.

Q: Are all employees whose firms are covered by the legislation eligible for family and medical leave?

A: The FMLA provides “key exemptions” for “highly compensated” employees. If you are one of the top-paid employees in your office or region, your employer may deny your request for a leave.

Q: Why are highly paid employees placed in this special category?

A: An employer may argue that giving time off to these employees will result in “substantial and grievous economic injury to the operations” of the employer.

Q: That sounds unfair.

A: Some analysts do consider this a “problematic” provision.

Q: What if my spouse and I work for the same employer? Can we dovetail our leaves to accumulate 24 consecutive weeks?

A: Probably not. Under terms of the new legislation, if a husband and wife have the same employer, they may be limited to a total of 12 weeks off.

Q: Will I be required to provide certification about the state of my own health, or that of my family members?

A: Yes. You will need to submit documentation from the health care provider who is treating you or the family member in question. In some cases, you may be asked to obtain additional opinions from physicians selected by your employer.

Q: Can my employer “check up on me” while I am out on leave?

A: The legislation grants an employer the right to require periodic reports from an employee on leave.

Q: In requesting my leave, what kind of notice do I need to give my employer?

A: If the purpose of your leave is “foreseeable,” based on an expected birth or adoption, you need to provide a minimum of 30 days’ notice before the leave begins.

Q: What if the adoption comes up suddenly--or what if I go into premature labor?

A: In those cases, an employee is required to provide “practicable” notice.

Q: Will I have to fill out a million forms in order to request a leave?

A: The legislation leaves it up to the employer to determine what kind of paperwork will be required.

Q: Is there a limit to the number of these leaves that I can take?

A: In any 12-month period, you are entitled to 12 weeks of leave for the above reasons. If you request the leave in consecutive years and can provide certification of need, your employer must grant it.

Q: When I return to work at the end of my leave, will I get my old job back?

A: This is another fuzzy area. Although in many cases an employee may return to a pre-leave position, an employer can also opt to restore that employee to “an equivalent position.”

Q: What does that mean?

A: You must receive the same benefits, pay and other terms of employment that you had before your leave.

Q: Who determines what this equivalent position is?

A: Your employer. But if a dispute arises, the legislation provides avenues of appeal.

Q: May I break my time off into chunks?

A: Only if you and your employer agree to do so.

Q: Have all the regulations been set in place for this legislation?

A: The new law requires that regulations to enforce it must be in place “not less than 60 days” after its enactment. By federal government standards, this is lightning speed.

Q: When does the Family and Medical Leave Act go into effect?

A: Six months after the date of enactment--or, Aug. 5, 1993.

Q: How much is all this going to cost?

A: A 1989 report from the Government Accounting Office estimated the annual cost of family and medical leave legislation to employers at $330 million. This amounts to $7.10 per covered worker per year.