Each year, Congress is called upon to provide for the nation’s military spending through a National Defense Authorization Act. Since it is viewed as a must-pass piece of legislation, Congress is often willing to include unrelated programs and expenditures to ensure its passage.
This year’s law included a significant leap forward for new parents in order to get Democrat approval.
The Family and Medical Leave Act (FMLA) has been supplemented with up to 12 weeks of paid parental leave for families of federal employees for:
- For the birth and care of a newborn
- Foster care placement
For almost 30 years, the federal FMLA has required businesses with 50 or more employees and all federal, state, and local government agencies, to allow new parents 12 weeks of unpaid leave.
But that law falls terribly short for most families by:
- Leaving out the 50 million-or-so people working for smaller businesses
- Ignoring that it only protects employees who can afford to take leave
The 2020 NDAA remedies the second problem, but only for federal employees.
Take it from this author that new babies are pricey! 78% of Americans live paycheck-to-paycheck and can certainly not afford to skip six of them just as expenses are climbing through the roof. Currently, only 8 states offer paid family leave.
Being able to spend the first weeks of your child’s life at home is indispensable. From physical recovery from childbirth, frequent medical appointments, breastfeeding difficulties, colic, postpartum depression, sleepless nights, dirty diapers, bonding, and early childhood development, to cooking, cleaning, and taking down the Christmas lights!
These first weeks are as difficult as they are magical. Providing a little breathing room to allow employees to continue receiving their hard-earned income during a little leave time is paramount.
While the rest of the country catches up with the few states on the coasts providing such leave, the least that employers in the other 42 states (including North Carolina and South Carolina) can do is respect the meager family leave protections provided by the FMLA. But all too often we see employers punishing new parents and others on FMLA leave for invoking their federal rights.
If you think you have suffered unlawful discrimination or retaliation, contact the FMLA attorneys at Herrmann & Murphy.
At the end of their leave, the law requires employers to reinstate employees to their former positions, or to a virtually identical position in some circumstances. Exceptions in the law allow employers to terminate employees on leave if they would have lost their job in the absence of leave (for example, because the employee’s department was eliminated).
Too often, employers try to use this exception when firing employees on leave. It is too tempting for some companies to claim that they are engaging in a layoff or that the employee on leave happened to be the one selected for elimination.
Still others use the opportunity to pigeon-hole employees on leave and promote someone else in their stead.
Unlike USERRA’s protection for military members in need of parental leave, FMLA does not require employers to restore employees to the job and benefits they would have attained if they had not taken protected leave.
Protected leave should be protected leave.
But when employers go too far in demoting employees for taking leave, the FMLA does provide a cause of action to hold their employers accountable.
Parents should have the opportunity to transition from hospital to home with their newborns without the fear of losing their job.