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FMLA Rights and How Working Women Can Build the Job They Want: Part 1

February 6th, 2016 Christopher Davis

It’s no secret that women in the workforce endure a set of difficulties distinct from those that men do—and that the problems women face have vast implications for their lives both within and outside of the workplace. In particular, in New York and the United States at large, the choice to start a family can have drastic and lasting consequences for a woman’s career.

Without having done much research, one might assume that the United States is a country with one of the highest employment rates in the world for women. Several decades ago, this was in fact the case. However, after a 60-year climb, the percentage of American women in the workforce reached its peak in 1999. Since then, it has fallen from 74 percent to 69 percent today among women ages 25 to 54.  Why is this happening?

Recently, the New York Times reported on these employment trends for women in the United States, attributing the fall in the number of working women to several causes— including the weakening of America’s economy in the past decade, and its failure to keep up with the expanding and more comprehensive social policies in European countries.

Indeed, compared with our European counterparts, the United States is decidedly behind the curve with respect to medical and family leave-related social policies, including those that pertain to expectant mothers. A report by the International Labor Organization (ILO) found that at least 178 countries around the world guarantee paid leave for working mothers, while more than 50 countries also provide wage benefits for fathers. Shockingly, the United States is one of just a few countries in the world that does not provide any type of financial support to mothers who take maternity leave—whether in terms of paid leave or subsidized childcare. According to the ILO’s report, nearly all of the states within the United States received “a failing grade in providing women and new mothers support entering motherhood.” As the New York Times notes, “there is a dearth of programs and policies in the United States to support women in their prime career and childbearing years.”

Certainly, this lack of support for working mothers is a key factor in the rising tendency of American women to leave the workforce. According to a New York Times/CBS News/Kaiser Family Foundation poll of nonworking adults aged 25-54, 61% of women said that family responsibilities were a reason that they weren’t working. The New York Times reported that “of women who identify as homemakers and have not looked for a job in the last year, nearly three-quarters said they would consider going back if a job offered flexible hours or allowed them to work from home.” Unfortunately, while individual employers may offer discretionary accommodations like these, there is no federal law in America that enforces these protections. But women may be able to take advantage of the laws that do exist in order to advocate for the employment conditions that will allow them to remain in the workforce as working mothers. These include both state and federal-level social policies pertaining to medical and family-related leave.

While most European countries are implementing a rising number of protections for working mothers, the United States’ policies have stagnated. The Family and Medical Leave Act, or FMLA, is the only federal law that is geared towards providing accommodations for working mothers. The National Partnership for Women and Families describes the FMLA as “the nation’s first and only national law designed to help Americans meet the dual demands of work and family.” Implemented in 1993, the FMLA has been enforced by women over 200 million times, but it has neither changed in the past two decades nor been supplemented by additional laws protecting working women. It remains the only federal protection for women starting families within the American workforce—but it can also serve as a stepping stone for women to initiate discussions with their employers about accommodations during and after their pregnancy.

Unlike the national laws enacted in most European countries, the FMLA does not provide paid leave. Rather, it requires certain employers to guarantee unpaid, job-protected leave for up to 12 weeks in the event that an employee has a qualifying condition. According to the Department of Labor, the official guidelines for qualifying conditions include the birth of a child and/or the adoption or fostering of a child. The 12 weeks of job-protected leave is meant to allow sufficient time for mothers—and sometimes fathers—to bond with their new addition to the family. Pregnancy itself is also included as a qualifying condition when an employee is rendered medically unable to work because of conditions related to the pregnancy. But for many women, those 12 weeks aren’t enough. It’s often uncomfortable to leave a child so young in daycare and return to work full-time—so women are left with two decisions. Either drop out of the workforce, or attempt negotiations with their employer.

Though it doesn’t provide maternity leave protections on the same scale as laws in other countries do, the FMLA can be very valuable to women insofar as it provides them with an opportunity to discuss their needs as working mothers. Caregiver accommodations—like the ability to work shorter hours, and other schedule modifications—are not available under the FMLA generally, but women can and should bring up the possibility of future accommodations to their employer. After the three months of leave guaranteed by the FMLA, women can ask for a further transitional period or permanent changes to their work routine in order to help them cope with new familial responsibilities.

In the past, our firm has provided guidelines on how to navigate the FMLA here and here. Typically, we recommend that women bring up FMLA leave to their employers well in advance of the time they intend to take it. Beginning the discussion early on in the process leaves ample room for women to continue the conversation and discuss the potential of further accommodations following their maternity leave. Many employers are sympathetic to working mothers’ situations and will take steps to ensure that their employees can continue to work effectively while balancing a family.

It is worth noting that a growing number of corporations—especially tech companies like Facebook and Google—are moving towards implementing parental leave policies that closely mimic those advanced by European countries. In November 2015, Facebook expanded its four-month paid parental leave plan to all of the company’s employees worldwide. At Google, new mothers enjoy nearly six months of paid leave. And at Netflix, new parents have unlimited paid parental leave for up to one full year.

This trend of tech companies implementing paid leave reflects the increasing commonality of accommodations made towards women in the hopes of keeping them in the workforce post-maternity leave. It’s important to recognize that often, employers want to accommodate their employees when it comes to caregiver responsibilities. Not only do poor parental leave policies culminate in a talent retention issue, but they also can impede productivity for those employees who do choose to stay on full-time without accommodations, despite an increased workload at home. Dr. Jeff Hill, a former human resources manager at IBM, states, “We’ve seen that employees’ productivity goes way up” after switching to part-time work, since employees are “more results-oriented.” Indeed, stronger parental leave policies can benefit both the employee and employer alike.

Despite knowing that employers will likely be receptive to requests for caregiver accommodations, many working women may still balk at the prospect of asking for further allowances following their three months of unpaid FMLA leave. We recognize that for many, making these types of requests is a sensitive issue that requires guidance. In Part 2 of this blog, our firm will provide tips and recommendations for requesting caregiver accommodations, and advice on how to get the most out of your career as a working mother.

If you’d like more information on requesting and obtaining FMLA leave, believe that you are the victim of an FMLA violation or maternity-related discrimination, or suspect that your rights as a working mother have been otherwise violated, please get in touch with our firm at (646) 430-7930, or fill out a consultation form here for a free and confidential case evaluation.