Why FMLA Doesn’t Cut It For Parents Or Businesses

“Wow, you’re lucky!” I heard those stupid words coming out of my mouth as an acquaintance told me she gets two paid weeks and 10 unpaid weeks for her maternity leave. A loyal employee for five years and she is deemed worthy of two paid weeks. The sad thing is, she is lucky in the United States, because that’s better than most get.

The Family and Medical Leave Act (FMLA) was passed in 1993 and was much cause for rejoicing. Passing FMLA granted much needed security for those going through medical crises and women recovering from birth—but as wonderful as having job security is, let’s face it, it’s been more than 20 years and we can and should do better.

FMLA does not guarantee any sort of pay for women on maternity leave or offer protection for paternity leave of any kind, and only guarantees that a woman can take up to 12 weeks of recovery time without losing her job. Not to mention, if your company does not employ 50 or more people, they don’t have to follow FMLA at all. While most Western countries offer multiple weeks of partially paid maternity and paternity leave, the United States offers women 12 weeks of not getting fired. Even more frustrating is that it’s hard to make employment at will states adhere to FMLA, since they can let you go at any time for any reason or for no reason at all.

Why Parents Need Better Than FMLA

You are probably pretty familiar with the arguments as to why FMLA is not enough for parents, but let’s go through it just one more time.

Birth is a natural experience, and as such it is unpredictable both in timing and execution. While women may plan ahead at work to have their duties covered and get ahead as much as they can, they don’t really know how birth is going to go. They could have a marvelous, easy, vaginal delivery and feel more than ready to head back to work six or eight weeks after delivery. On the flip side, they could have a traumatic emergency caesarean section delivery where everything goes wrong and their body needs extended time, patience and rest to recover, and may not feel able to work until 12 weeks or more after delivery.

Babies need bonding time and protection. Maternity leave is not a vacation, but rather a recovery period for mom and bonding time for baby. Newborns require frequent feedings and almost constant attention. Even the best childcare provider in the world is no substitute for mom or dad. Not to mention that babies cannot receive vital vaccinations until they reach certain milestones.  We’ve seen resurgence in many diseases in the past decade (for a multitude of reasons), but having some isolated time at home protects babies from common illnesses like whooping cough and influenza that can put their little lives at risk.

And don’t forget that dads need time with their baby too. Paternity leave (or parental leave) is equally important for mom’s partner and it is not protected by FMLA. Not only is bonding crucial for the infant, but it provides mothers with the support she needs in order for her body to physically recover. Some studies even show a reduced rate in postpartum depression in mothers whose partner remains home with them for an extended time after birth.

To add insult to injury, most salaried workers (and many hourly workers) will return to work with a pile on their desk to get through. Although some or many duties will be taken on by other staff when they are gone, a lot of times they are expected to make up for every moment they were gone. Then they face the same work load and a lot less pay, since 88 percent  of employers offer no paid maternity or paternity leave except for a few vacation days you may choose to cash out.

Why Businesses Need Better Than FMLA

Donald Trump isn’t wrong on at least one point—pregnancy is an inconvenience for businesses. It means that a worker will be out of the office for an extended period of time and that is understandably ‘undesirable’ for an employer. However, FMLA is hurting businesses as much as it is hurting parents. I am in no way suggesting we go back to the dark ages of no guaranteed leave or just not hiring women, but rather that a system that benefits parents can benefit businesses as well.

When a woman gets 12 weeks, unpaid, to recover from childbirth and bond with her baby (possibly to return to a mountain of work) it reinforces several key assumptions about a woman’s place in the workforce. It wasn’t until I was sitting around the dinner table with some acquaintances that a soon-to-be father pointed out the stupidity of the situation. “Not paying a woman on maternity leave is only teaching her that she isn’t valued as an employee and that she can survive on a smaller income,” he said in frustration. While a company may lose some productivity while a parent is on leave, they will lose much more productivity and time if/when she decides she can afford to stay at home and they have to search for and train her replacement.

“Not to mention that a lot of companies aren’t going to be paying anyone to do her job when she’s gone” he added, and went on to describe his wife’s situation where that was exactly the case. Granted, that scenario is more true in an office setting, but the picture is pretty clear. When companies don’t allow a woman to truly recover and bond with her baby, they are putting themselves at as much risk as they are her. Studies show that 25 percent of women return to the workforce within two weeks of delivery.

Although a doctor may deem a woman fit to work 6 to 8 weeks after a vaginal or caesarean delivery, research shows it takes up to a year to completely recover. Between the physical damage to the abdomen and reproductive organs, potential issues with breastfeeding, and the growing acknowledgement of postpartum depression, it is unlikely a woman is returning to work at the same functionality she did prior to birth after just 12 weeks. Even if she avoids complications and other common postpartum issues, her mind may be wandering to her little one at home that she was not quite ready to part with. This leaves businesses paying for someone who is not able to be 100 percent productive again.

The wage gap is often blamed on women not consistently staying in the workforce due to having and raising families, but how is our current system encouraging them to stay? When the average cost of childcare for one child is nearly $12,000 a year, and the median wage of a U.S. employee is just shy of $29,000 a year it takes away even more incentive for a new mother (especially with multiple children or a low income) to return to work. Between FMLA and the high cost of childcare, businesses offer little incentive for women to stay a driving force in their jobs.

Not every business is dragging behind, though. This past year, the Army announced it will provide 12 weeks of paid maternity leave.  Not to be outdone, the Navy now offers 18 weeks of paid maternity leave. There are several large, private companies also making waves with their maternity leave changes. Wells Fargo began offering 16 weeks of paid leave for the primary caregiver of a new baby and 4 weeks for the secondary caregiver or for an adoption. Google recently extended its paid maternity leave policy from 12 to 18 weeks and saw a 50 percent decline in new mothers who quit their jobs.  

That turnover rate is major for companies. From my perspective as a supervisor, I want to keep as many people in their jobs for as long as I can. Hiring is a long, time consuming, money wasting process. Not only does my staff become over stretched and less productive when we are down a team member, but much of my time has to turn away from normal tasks to focus on finding a replacement, which makes no money whatsoever. That lack of productivity continues in the time it takes to train the new employee. According to one study, turnover can cost anywhere from 16 to 213 percent of an employee’s salary. If we know there is a correlation between short maternity leave and eventual turnover in that employee, the cost of turnover could be mitigated by offering paid leave either through the company or through a government program.  

This is an issue few foreign companies face, since most Western countries offer paid leave through their government. Many of these countries found paid leave to be a natural step in their social democracies, as more social services became government run after World War II. Many Americans pride themselves on our unique form of democracy and free enterprise, but between turnover and employee dissatisfaction, those enterprises begin to hurt as well.

On the other hand, more research suggests that offering paid leave (or having it provided by the government) is actually beneficial for companies. When paid maternity or parental leave is offered, companies often see a boost in morale, less absenteeism, higher productivity, and a reduction in turnover.  One study even showed that paid parental leave created a more prepared workforce in the future by the children of the paid employees having better development and following through with higher education.

There’s no way to get around it—the FMLA does not provide employers with the framework to retain employees, maintain employee satisfaction, and therefore grow and sustain their business with arguably its most valuable asset: its employees.

What Can We Do?

Only 12 percent of U.S. employers offer paid maternity or parental leave, but likely many more could afford to do so. Regardless, a higher standard is needed to assist businesses in investing in their own workers. In the United States, we define maternity as a disability by the sheer fact that we lump it all together in the FMLA. In contrast, Canada runs its maternity leave program through its employment insurance program (similar to the United States’ unemployment program) where women and their partner can take 17 to 52 weeks off with 55 percent of their pay. To me that makes sense—maternity leave is much more like temporary unemployment than it is a disability.

Neither major party presidential candidate has an earth shattering proposal to reform maternity leave in the United States (both proposals will still leave the U.S. at the bottom of the list, but I guess it’s better than dead last). Trump is proposing six weeks of paid leave before returning to work, while Hillary Clinton is proposing 12 weeks of paid leave with two-thirds of your guaranteed wage (up to a ceiling) before returning to work. Although I personally have higher aspirations for my country, both policies would help those who hurt the most from the shortcomings of FMLA. That is, assuming they also amend FMLA’s exemption of those with less than 50 employees.

Most of us are not naïve enough to think that one president, one bill, or one governmental act in general will repair our parental leave system and bring us up to snuff with other Western countries. However, without the persistent request and evidence for change, we cannot expect anything to get better for parents and the companies they work for. Talk to your employer about how your company can help families. Write your congressional representative explaining the need for change. No one likes to be the first to change, but none of us want to be the last. We all deserve better, and we’ll only get it if we fight for it.