Taking Leave

Business groups are trying to restrict the Family and Medical Leave Act. That's precisely the wrong approach.

| Tue Jun. 7, 2005 3:00 AM EDT

It's not often recognized, but the concerns of working women certainly matter in electoral politics. During the 1992 presidential campaign, Bill Clinton skewered George H.W. Bush over the president's veto of the Family and Medical Leave Act (FMLA) two years earlier, a bill which would allow workers up to 12 weeks of unpaid leave either for illness, or to take care of a newborn child or aging parents. At that point, half of all women were employed outside the home, and many could be fired or pressured to leave work after giving birth. But the Bush administration was unfazed by the broad popular support for the act, and for women whose jobs didn't offer maternity leave, White House press secretary Marlin Fitzwater had this callous piece of advice: "Look for other jobs." By making it an issue, Clinton won the support of a majority of married women in '92—the first time any Democratic candidate had done so in over a decade—and signed the FMLA into law shortly after taking office.

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Fast forward 12 years. In the 2004 election, 55 percent of all married women voted for George W. Bush over John Kerry. It's true that married women ranked "moral values" and security concerns high on their list of reasons for voting for Bush. But crucially, according to a post-election analysis by Democratic pollster Anna Greenberg, only 12 percent of married women cited "women's rights" as a reason to vote against Bush. To many liberals, that might seem odd, but it shouldn't be shocking. The Democrats had gone out of their way to skirt women's issues in the run-up to the election—from taking the Equal Rights Amendment out of the party platform for the first time in four decades, to avoiding all mention of the persistent gender pay gap, or the lack of readily available child care, or the difficulties that women in America continue to have in balancing work and family. Indeed, as the two candidates spent their time jousting over which one could kill more al-Qaeda fighters, it was reasonable for any married woman to believe that her life wouldn't be substantially worse under Bush.

That makes the upcoming battle over the Family and Medical Leave Act—which has been used by 50 million workers since 1993, 60 percent of those women—all the more crucial. In a move that's only recently garnering wider media attention, business groups from the U.S. Chamber of Commerce to the National Association of Manufacturers are renewing their attacks on the act, arguing that employees are taking advantage of leave time and causing havoc in the workplace. "We see employees abusing FMLA as a way of getting time off that they wouldn't otherwise be able to have," said Kimberly Hostetler, director of human resources for the Connecticut Hospital Association, in a 1999 statement before Congress. "The costs associated with these absences are phenomenal," testified another hospital executive last year, claiming that the act "creates moral issues among staff."

Armed with a new study by the Employment Policy Foundation (EPF), which tallies the costs of complying with the FMLA at $21 billion per year in lost productivity and replacement costs, lobbyists are pressing the Labor Department to make changes to the rules. Although the Bush administration has demurred on issuing any decisions just yet—wary, perhaps, of provoking an outcry similar to the one over last year's rule changes that stripped millions of workers of their overtime rights—a ruling is expected at some point this year. Possible restrictions could include: more stringent definitions of what illnesses warrant leave; requirements for workers to produce doctor's notes; or an end to the practice of allowing employees to take intermittent time off (for, say, a one-hour doctor's appointment). Worker advocacy groups also worry that these changes could pave the way for even larger curtailments on family and medical leave.

It's possible, of course, that some workers taking leave time are abusing the law. But it's not clear how widespread this problem is (a Labor Department study found that 9 of 10 businesses reported no effects by the FMLA on profitability or growth), or whether denying workers leave is the way to fix those problems. For instance, EPF found that employers pay $5.9 billion to provide health care for workers on leave. That's a hassle, but it's less a problem with family or sick leave per se than with this country's outmoded system of linking health care to employment. As well, if workers really are "abusing FMLA as a way of getting time off that they wouldn't otherwise be able to have," as Hostetler puts it, then maybe it's time to rethink this country's approach to vacation—employees in the United States, after all, toil for more hours annually than those in any other country, and the Families and Work Institute recently found that 44 percent of Americans are overworked. Perhaps the problem isn't the workers.

Meanwhile, there's a good case to be made that the Family and Medical Leave Act ought to be expanded, not restricted. The law, after all, still doesn't cover the 43 percent of workers businesses with less than 50 people. The Institute for Women's Policy Research (IWPR) has estimated that 66 million workers don't receive any sick leave even after a full year of work, and the costs are staggering: workers can come to work sick, spread disease, and sap productivity; children who don't receive parental care usually stay sick for longer and miss school; and illnesses that go untreated can become more severe over time, cranking up health care costs. Recently, IWPR put out a study arguing that providing seven paid "sick leave" days per year to all employees would yield a net savings of $28 billion.

Most crucial, though, is the oft-neglected "working mother" angle. Conservatives have long resisted measures like the FMLA precisely because they feared that it would encourage more mothers to enter the workplace. That, of course, would be wholly unacceptable; as Rich Lowry wrote in the National Review in 2001, "Working moms are at the center of a variety of cultural ills." And indeed, conservatives might well take heart at the fact that, of late, mothers are increasingly deciding to stay at home—the number of married mothers with children who also work has dropped from 59 percent in 1998 to 55 percent in 2002—and argue that now is not the time to give mothers incentives to work.

But this misses an even more significant trend taking place: More and more women are responding to the difficulties in balancing work and family not by staying at home, but by refraining from having kids altogether. In 2002 the "crude" birthrate in the United States reached a record low of 17 births per 1,000. As Phillip Longman points out in his book on falling birthrates, The Empty Cradle, this decline has stemmed from a number of factors, but part of it is due to the "wage penalty"—and subsequent dents in their career—that working women suffer from having children. Even unpaid maternal leave is difficult for many women to afford; and for those working in businesses not covered by the FMLA, it's sometimes all but impossible.

There are ways around this problem. Besides the usual suspects—public support for child care, or figuring out how to make men share more of the burden around the house—a recent analysis by Heather Boushey of the Center for Economic and Policy Research found that policies to promote scheduling flexibility and anticipated paid leave can help working mothers take time off to care for their children without suffering a drop in wages. Although it's true that the costs for individual businesses would not always be light, there's reason to think that the larger economic costs could be positive. Economist Peter Lindert, in his study of social spending around the world, has suggested that "financial and legal support for working mothers appears to be an underlying pro-growth feature of welfare states." Certainly an efficient economy will always have its best and most capable citizens contributing, and leaving behind women who try to balance work and family can only count as a market failure in the current system.

Can Democrats get all that? Perhaps. Several senators, including Hillary Clinton and Edward Kennedy, recently signed a letter to the Labor Department indicating that any changes "to roll back the intended protections of the [FMLA]… would be unacceptable." That's right, but defending a 12-year-old law should only be the start. On the merits, the case for more flexible family and medical leave laws is quite strong—on both quality-of-life and economic grounds. And as Bill Clinton showed over a decade ago, championing these sorts of reforms loudly and proudly makes good political sense as well.

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