POLICY PROCESS ON THE

FAMILY AND MEDICAL LEAVE

ACT OF 1993 Case Study

Sandy Tamayo MPA 650 Public Policy Process

Cohort 89 August 12, 2014

1

Part 1 Introduction and Background

The Family and Medical Leave Act of 1993 also known as FMLA, is familiar to any

working adult in the U.S. We know about this law through our work benefits and because

someone we know has utilized the benefit at one point in time, maybe even ourselves. Elving

(1995) describes the FMLA as “Employers would be required to grant leaves of absence for

employees who were seriously ill, who had newborn or newly adopted children, or who had to

care for sick children, spouses or parent”(p. 12). These leaves of absences will be un-paid and in

addition, the employee will still continue to receive medical benefits from their employer,

Lenhoff (2013).

The FMLA is an extension of both the Civil Rights Act of 1964 and the Pregnancy and

Discrimination Act of 1978, according to Elving (1995) because they all “require equal treatment

of men and women in the workplace” (p.19). This is considered what Kingdon (2011) calls

incrementalism, where “instead of beginning consideration of each program or issue afresh,

decision makers take what they are currently doing as given, and make small, incremental,

marginal adjustments in that current behavior” (p. 79). However, this change took far too long

and caused problems to American workers, this is where non-governmental organizations also

known as interest groups stepped in to begin writing a policy that would suit the needs of all

working Americans.

According to Elving (1995), “Federal District Judge Manuel L. Real” (p. 19)

declared that the California maternity act discriminated against fathers. After this ruling,

that was when Congressmen Berman and interest groups started to gather to make a

maternity law that was gender neutral. Elving (1995) states that “Donna Lenhoff at the

Women’s Legal Defense Fund” was the right person to seek help from, not only because

2

she worked for an influential organization but because she already had the background with

the “battle over pregnancy benefits that led to the Pregnancy Discrimination Act of 1978”

(p.20). Congressman Berman also sought help from other women advocates such as

“Wendy Williams, a law professor at Georgetown Law Center” (p. 20). This is where the

wheels started turning to create the policy for FMLA.

Part 2 Agenda Setting- Problem Identification and Problem Definition

Although this policy was incremental, it can be mostly considered to be a pluralistic

policy. The FMLA relied more on the support of non-governmental organizations than

governmental actors. This type of process is defined by Peters (2013) as a pluralistic approach

where, “competitors are conceived as interest groups competing for access to institutions for

decision making and for the attention of central actors in the hope of producing their desired

outcomes” (p. 69).

Kingdon (2011) describes policy communities as “composed of specialists in a given

policy area…In any of these policy areas, specialists are scattered both through and outside of

government” (p.117). According to the NPWF website (2014), the non-governmental interest

groups that were involved were; the American Association for Retired Persons (AARP), The

National Partnership for Women and Families and the U.S. Catholic Conference just to name a

few of the important supporters. Lenhoff (2013) states that, “both AARP and the U.S. Catholic

Conference were able to persuade significant members of congress to support the FMLA.”

Through their hard work, they had the upper hand in influencing this policy to Congress.

There were also the advocates themselves who worked for these interest groups

such as “Diann Rust-Tierny, then of the National Women’s Law Center, Wendy Webster

Williams, a feminist law professor at Georgetown University Law Center and Donna

3

Lenhoff, who at that time was the Legal Director of the then-Women’s Legal Defense

Fund” NPWF website (n.d). I believe that the advocate for these interest groups played a

far more important role in setting the agenda in comparison to the governmental actors who

influenced the policy to get onto the agenda.

Powerful interest groups like AARP played a significant role in setting the agenda.

According to AARP website (2014), “AARP is a nonpartisan organization, with a membership

of more than 37 million…it strengthens communities and fights for the issues that matter most to

families such as healthcare, employment security and retirement planning.” It is a known fact

that retired aged Americans are more likely to vote, more so than working adults in the U.S. As

a result, they have more power and influence over their representatives along with the support of

the AARP organization.

Elving (1995) provides the names of the governmental actors who were involved with

FMLA after it was introduced to them by the non-governmental actors. Congressman Howard

Berman of California, then state assemblywoman Maxine Waters, Senator Chris Bond of

Missouri, Senator Chris Dodd of Connecticut and Representative Marge Roukema of New Jersey

were “highly committed co-sponsors” of the FMLA, according to the NPWF website (2014).

Becker (2014) states that “all stages of the policy process are political” (Module 4).

Politics had a tremendous effect on the policy process for the FMLA. According to Lenhoff

(2013), “in 1984, when the FMLA was first drafted, Ronald Reagan was just completing his first

term as president, and the Senate was under Republican control. This meant that, realistically,

there was no chance of the bill’s passage during that congress. Instead, the strategy was to raise it

as an issue and to educate members of Congress and the public about it.” The U.S. needed a

4

democratic president who would be willing to back up this federal policy since it wasn’t

receiving the support from Republicans.

The policy problem was identified when the issue moved from the systemic to the

institutional agenda. Peters (2013) defines institutional agenda as “composed of the issues

on which the individuals in power within a particular institution actually are considering

taking action” (p. 69). More and more people began to realize that they were not alone in

dealing with work-family issues at home-especially members of congress who were

sympathetic and who could relate to this issue on a personal level like Representative

Roukema. Elving (1995) states that Roukema lost her “seventeen-year-old son to

leukemia” (p. 93). Lenhoff (2013) also states that Roukema “took care of her ailing

mother-in-law and thus understood how time-consuming and exhausting caregiving can

be.” First-hand supporters like Roukema were who the interest groups were looking for in

Congress to assist in putting this policy onto the agenda. More so because they could

influence their friends in Congress. Roukema was a Republican and was a key person to

retain in the policy process of the FMLA.

This problem is defined as the federal government not fully supporting workers who

have family obligations at home. In the 1980’s, more women were going into the

workforce, they were no longer at home to caring for family members. Because this issue

was now affecting all working people and not just women, this is defined as a “work-family

policy” Lenhoff (2013). According to Congressional Digest (1988), “the large and growing

number of women in the work force has led to efforts in the Congress to mandate a Federal

family and leave policy.”

5

A way that this issue could have been defined differently was if it had clearly

explained how it would affect employers and their businesses. Due to the vagueness of how

the policy problem was defined, employers did not understand what the effects of having an

employee on medical leave for up to twelve weeks would affect their businesses. This

made businesses oppose FMLA. Many businesses thought their employees would be

receiving a short term disability, but this was not the case and as a result, businesses felt

they would be the ones to suffer and lose money. Elving (1995) names the opposing

business lobbyists as “the Chamber, the NFIB and the National Association of Wholesale-

Distributors” (p. 223).

Another reason why business lobbyists opposed FMLA was because they felt that

they no longer had control of their business’s rules and regulations. Lenhoff (2013) states,

“Because it was drafted as a minimum labor standard, the FMLA was perhaps most

vulnerable to attack as an intrusive government mandate into the way business is done.” It

wasn’t simply that businesses opposed FMLA, it was because they wanted to have that

choice to provide those added benefits to their employees at their own discretion. Either

providing more or less time off and even providing paid time-off.

The policy problem that the policy is ultimately seeking to resolve is to implement a

law that does not discriminate employees from taking un-paid leave to take care of

themselves or members of their family. Job security is also another factor to be considered,

when returning from leave, it would be great to still have your old position waiting for you.

Because employment affects every American in the adult working age, the

magnitude of the issue became highly important. Peters (2013) explains the “more extreme

the effects of a problem, the more likely it is to be placed on an agenda” (p. ). Job security,

6

along with family and medical leave were considered “powerful symbols”, according to

Kingdon (2011). These words triggered and “captured the mood convincingly…in a

nutshell a sort of reality that people already sense” (p. 98). At that time, a person didn’t

need to know the full name of the policy, simply saying “job security” and “family and

medical leave” was enough for the public to recognize what news media and people were

talking about. Workers also wanted job security so that they didn’t have to make the choice

of continuing on with their job or quitting and staying at home to care for their family

members.

Cost-benefit analysis is explained by Becker (2014) as “the benefits have to

outweigh the costs…the project that creates the greatest net benefit to society should be

selected” (Module 4). In this case, the interest groups along with experts and academics

proved that allowing un-paid time off from work will benefit the employee and the

employer in the long run.

Elving (1995) describes Congressman George Miller’s hearing as “opening a

window on Capitol Hill to a field of promise…The idea of keeping parents with their

children had scientific underpinnings, a research base and a wealth of anecdotal supporting

evidence. Here was a chance for liberals to talk not about individual rights but about family

needs, not about abortion rights but about parenthood, not comparable worth but about

keeping one’s job. Here was a strategy for social legislation in the 1980’s” (p. 29). It is

important to retain the employee and allow them to return to work after their unpaid time

off. This will save the employee from using their paid time-off (sick and vacation hours) as

well other unexpected medical, psychological and emotional costs that will cost not only the

7

employee but the employer as well. Most importantly, it’s important to keep the employee

happy.

The FMLA cost-benefit is measured as a “contingent value” according to Peters

(2014). The reason being is because not everyone will be using FMLA at the same time,

nor will they use it right away or ever use it at all. We can’t assume that every employee

will use this benefit. At the same time, we can’t assume they won’t. That is why it is hard

to measure, it’s up to the discretion of the employee. Becker (2014) provides an example of

a contingent value, he states that he may not use “Lake Nowhere tomorrow but my

(hypothetical) children might want to in thirty years” (Module 4). These two examples

describe how hard it is to measure a “contingent value.”

This policy can also be known as Utilitarianism. Peters (2013) explains it as

“producing the greatest net benefit to society…can be used to justify actions that violate

both procedural norms and the usual conceptions of fair distribution of the benefits to

society” (p. 482). What this means is that the FMLA is a policy that should provide

satisfaction for the people because it is in the public’s interest. Peters (2013) also states that

this utilitarian approach will help reduce dimensions of this policy to a fair and economic

one.

Part 3 Decision Making

The FMLA policy took many years for it to be implemented. It had its share of

rejections, most notably were the two vetoes by former President George Bush, Sr. in 1991 and

1992. As Becker (2014) stated over and over in his modules, “the policy process is political.”

Lenhoff (2013) states that “Party affiliation also made a big difference in direct support for the

FMLA” (p. 9). It was common knowledge that Democrats supported this policy and

8

Republicans were against it. The political aspect was proven by the two executive vetoes by

President Bush, Sr. However, Lenhoff (2013) states that this “allowed democrats to set up a very

clear, concrete difference between the parties in Congress and the public’s mind: politicians had

to be either for or against the FMLA” (p. 10).

Along with President Clinton signing the FMLA into law, there were other

important actors that played a role in making this decision. Elving (1995) names them as

Senator Chris Bond, Senator Chris Dodd and Representative Marge Roukema. Each of

these representatives played a major role throughout the years of the policy process.

Lenhoff (2013) says that “their efforts also illustrate the various factors that affected

legislators’ different responses to the FMLA, including personal ideology, personal

experience, electoral politics, and gender” (p. 10). Although I state that interests groups

played a bigger role in this policy process, these governmental actors were the ones who

had the power to get the policy onto the agenda and hence have it signed by President

Clinton. However, I still stand by the notion that outside actors like Donna Lenhoff from

the National Partnership for Women played a slightly bigger role.

This decision making process can be described as an “Executive Order”, Becker (2014).

President Clinton was the key decision maker for this case. The FMLA was one of the first

policies he passed when he was inaugurated as President of the U.S. in 1993. This process can

also be defined as being a “democratic process” because it went through all the legislative steps

to become a law and was not bypassed or used elitist influence to get onto the agenda.

The “policy window” as described by Kingdon (2011) states that these are “opportunities

for action on given initiatives…a political change makes it the right time for policy change…”

(p. 165). FMLA’s opportunity opened in 1993 when President Clinton was inaugurated into

9

office. Because he was a democratic President, he had the power to influence this policy. The

FMLA like Obama Care depended on the highest support of the executive branch of office.

The policy process of the FMLA can be considered a legitimate process. Peters (2013

describes legitimacy as a “belief on the part of citizens that the current government represents a

proper form of government and a willingness on their part to accept the government’s decrees as

legal and authoritative” (p. 96). Naturally, it is satisfyingly legitimate to those who were in favor

and supported the policy. However, for the opposing business lobbyists, all they could do was

accept President Clinton’s decision to sign the policy into federal law.

Part 4 Implementation

Peters (2013) defines implementation as “the ability of a political system to put

politics into effect” (p. 126). The process by which this policy was implemented was after

President Clinton signed the FMLA into law in 1993 and Elving (1995) states that it “took

effect on August 5, 1993 (six months after the president’s signature), and the first

commission meeting took place three months later” (p. 292). The policy was handed to the

“Labor Secretary Robert B. Reich” (p.292) who was also in charge of conducting “two

surveys of business reaction” (p. 292).

According to the Department of Labor’s website (2014), in 1995 as part of the

FMLA, the Department of Labor conducted two surveys where “The Act also set up a

bipartisan commission to review family and medical leave issues. The Commission on

Leave, among other activities, commissioned two surveys conducted in 1995: an Employee

Survey, which was conducted by the Institute for Social Research at the University of

Michigan; and an Establishment Survey, which was conducted by Westat. The results of

these two surveys, and the rest of the Commission on Leave’s findings, were presented in a

10

major report, A Workable Balance: Report to Congress on Family and Medical Leave

Policies, released in 1996.”

Like President Obama’s health care policy, the FMLA took time for the public to

catch on and know that this federal benefit was available to them. Elving (1995) states that,

“many eligible workers were simply unaware of the new benefit. But even where awareness

was relatively high, use of the new law remained low” (p. 292). Even if people were aware

of it, because this is an added benefit, not everyone will need to use FMLA at the same

time.

Part 5 Evaluation

Donna Lenhoff and Lissa Bell both conducted a case study in 2013 for the National

Partnership for Women & Families organization called, Government Support for Working

Families and for Communities: Family and Medical Leave as a Case Study (2013). They

wrote this in recognition of the twenty years of the passing of the FMLA. In this case study,

they provide an evaluation of the FMLA and explain what has been working and what needs

improvement.

The main evaluation and change they would like to make to the FMLA is providing

paid leave during the twelve week leave of absence. This isn’t implying that the current

FMLA isn’t working, they simply want to add a partial paid benefit to the employee. Lenhoff

(2013) states “Eager to expand people’s access to family and medical leave by providing at

least some income during otherwise unpaid leaves…” Of course, this would be done in

incremental stages. In 1999, the NPWF “launched a Family Leave Benefits

Campaign…promoting a range of state, local, and private models. While the campaign does

11

not (at this point, at least) call for an amendment of the FMLA to require paid leave, it does

encourage facilitation of state and other innovations by the federal government…”

Since the FMLA is under the United States Department of Labor agency, they are the

ones who conduct evaluations, surveys and measures. In the U.S. Department of Labor’s

website, they provide a 2012 report on “Employee Survey” and “Worksite Survey.” The

results indicate that “employees’ use of leave, and employers’ granting and administration of

leave, have achieved a level of stability. Employees actively make use of the intended benefits

established by the Act, but appear to have limited knowledge of what the Act specifically

entails and covers. At the same time, most employers report that complying with the FMLA

imposes minimal burden on their operations, although a subset of employees reported

difficulty complying.”

The way the U.S. Department of Labor measured FMLA was by using the “chain of

outputs”, Becker (2014) states that “Good measurement becomes a critical lynchpin in both

determining whether public policies are succeeding and in avoiding pathologies of evaluation

like goal displacement” (Module 8). As stated earlier, the U.S. Department of Labor

conducted surveys on employees to make certain that they were using the FMLA benefits to

its extent. The outcome measurements in the 2012 survey showed that “most employees

receive some pay while on leave: 48% report receiving full pay and another 17% receive

partial pay, but not exclusively through regular paid vacation leave, sick leave, or other paid

time off hours.” The goals were identified by the 2012 study from the U.S. Department of

Labor.

12

Conclusion

The Family and Medical Leave Act of 1993 continues to be a great benefit to all

working-age adults in the U.S. This pluralistic policy is a result of the dedication and hard

work of interest groups and advocates like Donna Lenhoff from the National Partnership for

Women and Families. Although governmental actors like Senator Dodd, Senator Bond and

Representative Roukema played an important role in moving this policy to the agenda,

Lenhoff still played a slightly bigger role from the beginning because she had experience form

the Pregnancy Act of 1978 and helped draft the FMLA.

Elving (1995) sums up the power of interest groups, governmental actors and everyone

else by stating, “If the sponsors and support groups were the dynamic forces, their product was

shaped as well by the institutional constraints of Congress itself: the need for legislative

language, the multilevel committee process, the gatekeeping role of the leadership, the pitfalls

of floor consideration, the necessity of doing it all in one chamber and then doing it all again

in the other-and, finally, the imperative of obtaining the president’s signature” (p. 290).

13

References

Elving, R. (1996). Conflict and compromise: How Congress makes the law (Reprint ed.). New

York: Simon & Schuster.

Peters, B. (2013). American public policy promise and performance (Revised/Expanded ed.).

New York, N.Y.: Chatham House.

Kingdon, J. (2011). Agendas, alternatives, and public policies (Revised/Expanded ed.). Boston:

Little, Brown.

National Partnership for Women & Families: Government Support for Working Families and for

Communities (n.d.), Family and Medical Leave as a Case Study by Donna Lenhoff. Retrieved

from

http://www.nationalpartnership.org/research-liary/work-family/fmla/fmla-case-study-lenhoff-

bell.pdf

United States Department of Labor: Wage and Hour Division (n.d), Family and Medical Leave

Act of 1993. Retrieved from

http://www.dol.gov/whd/regs/statutes/fmla.htm

http://www.dol.gov/whd/fmla/chapter1.htm

http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Executive-Summary.pdf

American Association of Retired Person: About (n.d.) Who We Are. Retrieved from

http://www.aarp.org/about-aarp/?intcmp=FTR-LINKS-WWA-ABOUT

Family and Medical Leave Policy. (Cover story). (1988). Congressional Digest, 67(5), 129-160.

Retrieved from

http://libproxy.csun.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&

AN=8800010647&site=ehost-live