WASHINGTON (WOMENSENEWS)–Debra Ness finds the newly divided government in Washington requiring her to play offense and defense simultaneously.
Americans are looking to the new Congress to give workers better benefits, said Ness, president of the Washington-based National Partnership for Women and Families, at a recent news conference with Sen. Christopher Dodd, a Connecticut Democrat.
At the same time, she warns that the Bush administration could still use its executive powers to restrict existing worker rights.
Like other women’s rights advocates, Ness is scrambling to cover the field on sick leave, in particular, an issue of key importance to women, who are the nation’s primary caregivers.
Ness has issued several recent warnings that the main federal bulwark on sick leave–the Family and Medical Leave Act–faces possible erosion as a result of a Nov. 30 Labor Department request for public comment on the effectiveness of the 1993 law.
The leave act requires companies with 50 or more employees to give eligible workers up to three months of unpaid leave to care for themselves, immediate family members, or new or adopted children.
Signal for Potential Changes
The two-and-a-half month public comment period, which ended Feb. 16, does not guarantee that the Labor Department will actually make any changes to how the law is administered or implemented. But it does signal to advocates on both sides of the issue that it’s a distinct possibility.
The Department of Labor’s request for comment “is cause for real concern” that the administration seeks to weaken the leave law, Ness warned in a Nov. 30 statement.
At the same time, Ness is playing offense in Congress, pushing for a more generous approach to sick leave. She championed that cause before the Senate Health, Education, Labor and Pensions Committee on Feb. 13 at the first congressional hearing ever focused exclusively on paid sick leave. Ness argued for a bill sponsored by Democrat Sen. Edward Kennedy of Massachusetts that would require companies with at least 15 employees to give workers at least seven paid sick days a year.
Earlier in the month, Ness was even deeper into offensive territory, backing a bill sponsored by Dodd that would broaden the Family and Medical Leave Act, which Dodd authored. The new bill would guarantee employees at least six weeks of paid leave a year after the birth or adoption of a child or to care for themselves or immediate family members. It would also expand the number of individuals eligible for the benefit.
The executive branch does not have the power to change rights specifically outlined in the Family and Medical Leave Act. But it can use the public comment period to clarify wording and change the way the law is interpreted, potentially affecting millions of U.S. workers and employers.
Supporters of the leave law worry that the administration may seek to narrow the definition of what constitutes a “serious health condition” and restrict the use of intermittent leave, which could undermine some workers’ ability to take full advantage of the law’s provisions.
Business Prompts Abuse Question
But Roger Simon, a labor and employment lawyer with Jones Day, a law firm based in Cleveland, Ohio, said at the Feb. 13 hearing that the use–and abuse–of intermittent leave pose serious problems to businesses, such as lowering productivity and raising costs.
Under the law, employees can take up to 60 days off over the course of a year for health reasons. Because employees can take leave in small increments, that means they can take off more than a full work day every single week of the year.
He also said confusion over what constitutes a “serious health condition,” inadequate notification requirements before leave periods begin and problematic eligibility standards for workers who take leave unfairly burden employers.
The Family and Medical Leave Act “simply does not work well in a number of areas,” he said in testimony presented at the Feb. 13 hearing, adding that it is “confusing, subject to abuse and a source of considerable litigation.”
Any efforts to restrict the law will come at the expense of workers, especially female workers, women’s rights advocates said. Women often take maternity leave under the law, which protects them from losing their jobs after giving birth. Women are also more likely to take time off from work to care for family members.
Of the more than 50 million workers who have taken leave under the law, 58 percent have been women, according to the National Partnership for Women and Families.
Employer Orientation Raises Concern
We “are very concerned about the tenor of this request for information from the Department of Labor” because it “seems to be much more oriented toward a perception of employer issues and not toward eliciting more data of the experience of workers,” said Vicky Lovell, a labor expert at the Institute for Women’s Policy Research, a think tank in Washington, D.C.
The newly empowered Democratic majority in Congress will fight any changes to the law, said Sen. Bernie Sanders, an independent from Vermont. “The idea of making it weaker is absurd,” he said. “We’ve got to strengthen it.”
The pro-leave bills sponsored by Dodd and Kennedy face opposition from Republicans such as Sen. Mike Enzi, a Wyoming Republican who is the ranking member on the Health, Education, Labor and Pension Committee.
Enzi said the paid sick leave legislation could drive some businesses out of business and cause employers to scale back other benefits to comply with new laws.
Requiring paid sick leave “throws good will out the window and abandons free markets and innovation in favor of another big-government, one-size-fits-all mandate that will only compound existing problems,” said Enzi, a former businessman.
Jody Heymann, founding director of the Institute for Health and Social Policy at McGill University in Montreal, has analyzed the 20 most economically competitive countries. The United States, she said, is the only one that does not guarantee workers paid sick leave. A larger study showed that the United States ranks near the bottom of the world’s nations when it comes to paid sick leave and paid maternity leave.
“I hear people say we’re No. 1, America is No. 1,” Sanders said during a colloquy with Heymann at the hearing. “Well, if you look around the world in terms of how we treat our children and how we treat our working families, we’re not No. 1. . . . The real issue is how we can be No. 1 in how we treat working families.”
Allison Stevens is Washington bureau chief at Women’s eNews.
Women’s eNews welcomes your comments. E-mail us at [email protected].