On September 18, the House Education and Labor Subcommittee on Workforce Protections held a hearing on the Support for Injured Servicemembers Act (H.R. 3481), which would extend coverage of the Family and Medical Leave Act (FMLA) (P.L. 103-3) to caretakers of wounded servicemembers. The act passed the Senate as part of the State Health Children’s Insurance Program reauthorization (H.R. 976) on August 2 (see The Source, 08/03/07).
“Ninety million working people are now eligible for unpaid job protected leave for up to 12 weeks a year,” said Chair Lynn Woosley (D-CA). “When [FMLA] was passed in 1993, it was a giant step, and is of great importance to working families. A majority of military spouses work outside of the home and must balance work and family, put food on the table, and provide the support their families need.” Many servicemembers, Rep. Woosley said, “need substantial support and care from their families, often for long periods of time, and some permanently. No matter where we come down on the merits of these conflicts, we must help the families involved families who include not only spouses, but parents, children, and others support their loved ones who are putting their lives on the line for us in Iraq and Afghanistan.”
Ranking Member Joe Wilson (R-SC) said, “One of [the recommendations of the President’s Commission on Care for America’s Returning Wounded Warriors] was that Congress amend the Family and Medical Leave Act to provide extended leave to relatives caring for combat-related injured servicemembers. President Bush has endorsed this recommendation. Indeed, no one in this room could find a more worthy goal than ensuring [that] workers are not forced to choose between their job and caring for an injured family member who has served his or her country.” Rep. Wilson added that FMLA “is working well in some instances, but not as well in others. We are all united in our support of military families today, and that makes our task of legislating easier. But I would caution my colleagues that there are a number of policy issues surrounding the Family and Medical Leave Act that do not lend themselves to unanimous support. I hope that after today this subcommittee and our committee as a whole does not shy away from that debate, but rather turns to face some of the tough questions that have arisen under the law.”
Sen. Christopher Dodd (D-CT) testified in favor of the FMLA expansion to military families. “Since its passage, I have sought to expand FMLA to include more employees, particularly in small businesses, to expand the definition of who is a caregiver, and also to provide paid leave. For many years, I have worked to build on the proven success of the FMLA and have been driven by my strong belief that more Americans are deserving of its protections. I will continue these efforts and seek additional resources for our military families, such as comprehensive child care, but will focus on passing the Support for Injured Servicemembers Act as soon as possible.”
Rep. Darrell Issa (R-CA), sponsor of a similar resolution, the Military Family and Medical Leave Act (H.R. 3391), testified, “I realize challenges exist in the expansion of this act for military family leave. As a former business owner myself, I understand the difficulties of balancing employment demands. It is my sincere hope that we can find an appropriate balance in this discussion, so that employers will not just comply with the Family and Medical Leave Act, but will also embrace it. My bill, H.R. 3391, and many of the other legislative proposals are about giving our military members the best chance at recovery by allowing their family to provide support for an extended recovery period.”
During the second panel of witnesses, the wife of wounded Sergeant Edward “Ted” Wade, Sarah Wade, spoke in favor of the expansion. Her husband was injured in Iraq in February 2004, and spent months in a coma. He spent time in hospitals in Richmond, Va., Durham, N.C., and Washington, D.C., while she commuted to help in his recovery. “Due to frequent travel to Walter Reed for services, I was unable to return to regular work or my studies and would eventually be fired from my job because I had ‘a lot going on’ in my life,” Mrs. Wade testified, referring to her employer’s rationale for her dismissal. “I do hope that while reviewing [the proposal], you also consider assistance to those who are not granted any leave at all. While this change would have been helpful to my father-in-law [who works at a large company], those of us who work for small businesses…remain vulnerable.”
Christine Vion-Gillespie of the Society for Human Resource Management (SHRM) argued for a “comprehensive review of FMLA” before adding leave benefits for military families. Ms. Vion-Gillespie said, “In fact, 47 percent of members responding to the 2007 SHRM FMLA Survey reported that they have experienced challenges in granting leave for an employee’s serious health condition as a result of an episodic condition (ongoing injuries, ongoing illnesses, and/or non-life threatening conditions). [Human Resource] professionals have struggled to interpret various provisions of the FMLA, including the definition of a serious health condition, intermittent leave, and medical certifications.” She said that agency definitions of these terms remain unclear.
Ms. Vion-Gillespie said SHRM had concerns with an amendment passed during consideration the FY2008 Department of Defense Authorization bill (H.R. 1585) (see The Source, 05/18/07) that would expand the FMLA to provide leave for military families, because “this amendment is very broad, sets vague standards for leave, and does not adequately address many issues key to effective implementation, which under FMLA have led to excessive litigation. For example, in the case of a spouse called to active duty, the amendment would appear to authorize leave for a wide range of purposes from providing or arranging child care to coaching a child’s baseball team.” Ms. Vion-Gillespie also expressed concerns with H.R. 3481 and H.R. 3391, because they do not specify at what time a caretaker will be able to take leave to care for an injured servicemember.
Jessica Perdew of the National Military Family Association (NMFA) noted that H.R. 3481 permits only the “spouse, son, daughter, parent, or next of kin” to take leave to help an injured servicemember recover. Orphans and those whose blood relatives have died would not be covered under the current wording. Ms. Perdew urged “broadening the definition of eligibility by including those who are considered the primary caregiver,” as well as “providing a limited amount of paid family leave.” Rep. Woosley also noted that she wants the final legislation to define caregivers as more than just blood relatives.
Debra Ness, president of the National Partnership for Women & Families, said, “Since it was enacted in 1993, the FMLA has given more than 60 million workers the opportunity to care for themselves and their family members in times of need without putting their jobs on the line. The FMLA is one of the most popular laws in the country. More than 80 percent of employees surveyed by the Department of Labor say that all workers should be able to take up to 12 weeks of leave a year for family and medical reasons.” She added, “We need to ensure that the protections of the FMLA are adequate to serve the needs of our military families,” but noted concerns with the current law, including the fact that FMLA only covers the 60 percent of workers employed by companies with 50 or more employees. “Further,” she said, “the FMLA provides only unpaid leave. This means that for the vast majority of low-wage workers who have no paid leave benefits, the FMLA remains an empty promise. Seventy-eight percent of those who need but do not take family and medical leave do not take it because they cannot afford to, according to the Department of Labor.”
