An FMLA That Fits More Families
The transition to an Obama White House makes public something that has been occurring in the private confines of American families for years. As the President himself acknowledged, his historic campaign would have been impossible but for the contribution of one person – his mother-in-law, Marian Robinson. As the Obamas crossed the country campaigning, Mrs. Robinson moved into their Hyde Park home to care for the couple’s young daughters.
The Obama’s “granny-nanny” arrangement may seem novel to media pundits, but it is a way of life for most Americans, who, according to recent census data, routinely rely on non-parental caregivers to care for their children. These childcare arrangements include care by grandparents and other extended family, as well as day care, nursery schools, or third party in-home paid childcare.
Regardless of the specific arrangement, the reality is the same: although we may idealize the notion of the nuclear family providing care to its dependent members in an atomistic fashion, in fact, the nuclear family relies on networks of other caregivers to help it discharge its caregiving responsibilities. Public policies aimed at supporting families should take these realities into account. More particularly, the Family and Medical Leave Act, a federal law that provides employees with the right to take time away from work to accommodate caregiving, should be expanded to include a wider range of family members.
Signed into law in 1993 by President Clinton, the FMLA was intended to make clear the public value of caregiving and to provide families with necessary resources to care for their dependent members. But in defining eligibility for these benefits, the Act remains doggedly fixed on the nuclear family as an independent caregiving unit and ignores the importance of non-nuclear caregiving arrangements.
The Act provides twelve weeks of unpaid leave to eligible employees in the event of the birth or adoption of a child or to care for a “spouse, or a son, daughter, or parent.” Although the Act provides some flexibility in defining eligibility – those who stand in loco parentis to one another also are eligible – even this attempt at flexibility belies the Act’s preoccupation with the nuclear family. Only caregiving performed by nuclear family members (or those who function as such) on behalf of nuclear family members (or those who function as such) is credited.
Other bonds of kinship and attachment that exist both within and outside the nuclear family are not contemplated. For example, though it is increasingly common among groups of older women, the FMLA does not permit siblings to take leave to care for one another. Nor does it include the caregiving relationships that exist among extended family members. President Obama’s mother-in-law, for example, would not be eligible for FMLA leave to care for Sasha or Malia – unless, of course, she could establish that she functioned as a parent to them.
Certainly, some might argue that in a time of scarce economic resources, expanding the FMLA to encompass a wider range of family members would be unduly cost-prohibitive and administratively unwieldly. However, these burdens might not be as great as expected. Because the FMLA offers employees unpaid leave, many employees do not take advantage of it, preferring instead to avail themselves of accrued sick leave or more generous state-level leave policies. As such, the FMLA’s impact on employers involves a reduction in workplace productivity – not an insignificant burden, but certainly one that could be ameliorated.
Concerns that expanding the FMLA to include a wider range of family relationships would yield administrative difficulties and problems with fraud also can be minimized. The eligibility of extended family members could be limited to those related by birth, adoption, or marriage. In these cases, proving one’s status as a sibling or grandparent would require only the production of legal records, minimizing administrative oversight and limiting opportunities for fraud.
As Americans know first-hand, caregiving is not something that is exclusive to parents or spouses. We rely on a plurality of caregiving relationships every day. With this reality in mind, the FMLA’s focus on the care provided by parents, adult children, and spouses seems unduly crabbed and limited, and more importantly, contradicts our stated interest in supporting American families.
So, as we focus on expanding healthcare coverage and helping struggling families to stay in their homes, we also should consider more modest measures that support families, like expanding the scope of the FMLA to include a wider range of caregiving arrangements. In short, it would mean an FMLA that fits more families, including the First Family.
Melissa Murray is Assistant Professor of Law.
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