One-size-fits-all FMLA is unrealistic 

One-size-fits-all FMLA is unrealistic

Five years ago, I worked at a bank to put myself through college. I was simultaneously caring for my terminally ill father. He was diagnosed my freshman year, and he nearly survived up to his goal: to see me graduate. He passed away six months prior to my walk across the stage.

His illness progressed rapidly in the last few months of his life. He was admitted to the hospital 11 days before he passed and we knew it was the end. I went to my employer to discuss my options, but there was one extra hurdle during this already tragic situation: I was exactly two weeks shy of qualifying for benefits under the Family Medical Leave Act.

My story has a happier ending than most who find themselves in this situation. My employer valued me, and my boss covered my shifts and let me use my accrued paid time off in the weeks leading up to and after my father's passing. My employer had compassion, and there was never a question that my job was safe for me to return to once the dust settled from the chaos that was my personal life at the time.

However, this story could have ended much differently because I did not yet qualify for benefits under the FMLA. My employer easily could have fired me instead, because of employment at-will. Even if I had qualified for FMLA benefits, there are still many obstacles to overcome because the FMLA is a one-size-fits- -all statute. First, employers must be covered under the FMLA: They must employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year and be engaged in commerce or in any industry or activity affecting commerce. So, small businesses of 49 or fewer employees are not covered and do not have to comply with the FMLA.

Second, if the employer meets the covered entity criteria, the employee is only entitled to 12 weeks of unpaid, job-protected leave in a 12-month period. This can often put individuals between a rock and a hard place because many of the "qualifying serious health conditions" which are covered by the FMLA persist for more than 12 weeks in a 12-month period. Further, the leave mandated by the FMLA is unpaid. Employers may require, or an employee may choose, to use accrued paid time off while taking FMLA, but there is no federally mandated requirement that employees be compensated during this time, even if they have sufficient accrued paid leave. So, it can be difficult for individuals dealing with this situation to pay their bills while caring for themselves or a loved one.

Although unpaid protection that covers some leave is better than none, a one-size-fits-all statute is simply unrealistic in today's world. Science and technology are constantly advancing and the treatment for many of the "qualifying serious health conditions" is ever evolving, so the law governing when an individual can take leave to care for herself or a loved one with this type of diagnosis should also change.

A more practical approach may be to allow employees to contribute to an FMLA "bank," like retirement planning, or provide a FMLA insurance policy similar to life insurance. Often, individuals who would need more than 12 weeks in a 12-month period and would rely on that income, meaning they would need the leave to be paid, know of the needs when they are hired. If an employee could purchase more coverage via monthly premiums, similar to a life insurance setup, or contribute a dollar amount or percentage of each pay period to accrue more coverage in their sick leave bank that they could then use for FMLA or regular sick leave, then employees who are already facing a tremendously difficult situation would likely be better employees. This is likely because they would not also be worried about having an income stream during this time. The employer would also benefit from this morale boost and would likely see more efficient employees if employees had more control over their time off work.

Hopefully, more employers and states will continue improving FMLA leave. The passage of SB 125 last year, providing four weeks of paid maternity leave for state agency employees, is certainly a step in the right direction for Arkansas. However, this law only impacts state employees, so individuals working for private employers do not reap these benefits. There is still plenty of room for improvement that would impact all Arkansas employees.

Jennifer Hosp


From the web

In response to the March 8 cover story, "Arkansas's medical marijuana growers come to light":

I want to thank Bold Team LLC for choosing to place their site in Cotton Plant. Anywhere on the Delta the people of that region would have gotten onto their knees and thanked God for the privilege of one of the plants in their region. But Cotton Plant is in the middle of an entire district that's not exactly Delta and not exactly anything except broke and broken down by the leaving of all of the factories in the area. Since all of the American Greetings [plants] closed in 2001-02, the entire area has been stricken by bad luck and devastation. I hope and pray that this action is the beginning of a new life for all of Woodruff County and the region.


I voted for medicinal, and probably will get my card. But, man! This is a strange bunch of bedfellows. You could plot a James Lee Burke novel out of that cast.  In a state with two degrees of separation. Until money is involved then mostly them what has, gets.




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