In 1993, Congress enacted the Family Medical Leave Act (Public Law 103-5). The objective of this article is to look at the Family Medical Leave Act and raise questions as to whether we should use it as a guide to structure a statute to advance civic engagement. I have been thinking about this idea for a while and have delayed publishing this article because of quesitons I have about the practicality of such a proposal.
The underlying problem I seek to address is that I believe many non-executives/super-professionals are subconsciously barred from playing a leadership role in addressing community-wide issues when opportunities for addressing them arise during their normal work hours. Many executives and super-professionals are given professional credit for their community service and certain other volunteer work, whereas hourly workers and other less high ranking professionals are more likely placed in the position of not being available to community-oriented organization, or other causes about which they care.
My goal here is to raise quesitons about how best to encourage civic engagement, including activism on community issues. My concerns stem from the facts that few people have the leisure to take time from work to address community matters. One way this is often addressed is by having people trade shifts. However, in the family medical leave context, and even in the religious context, there is favorabvle expectation that employers take initiative to acccomodate, although they are not required to take any unreasonable steps in accomodating. In the context of religion, an employer is not required to overcome a union-brokored legitimate seniority system in order to accomodate an employee's religious requirements that he be free from work on his sabbath, but to the exten that religious accomodation may be done consistant with other scheduling rules, effort to accomodate must be made. The Family Medical Leave Act requires that employers wtih more than 50 employees provide employees, who have worked full time for a period of approximately 1 calendar year, with the right to take unpaid leave of up to 12 weeks, provided that the employee is able to show a legitimate medical need for said leave.
There is a certain logic to using the Family Medical Leave Act as a model to address the need for employees with communal needs that must be addressed. The findings section of the Family Medical Leave Act identifies certain societal problems the statute seeks to address. Specifically, according to the statute, the societal objective is "the development of children and the family unit that fathers and mothers be able to participate in early child-rearing and the care of family members who have serious health conditions."
The Findings, thus further, identifies the problem it seeks to address as "the lack of employment policies to accommodate working parents [effectively] force individuals to choose between job security and parenting; there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.
Similarly, it is crucial to the democratic nature of this nation for citizens to be able to participate as citizens in the political world and community world. As Robert Putnum illustrates in "Bowling Alone," there have been steady decreases in community and political involvement. Although it is not clear to me if he says this explicitly, it is certainly implicit in his work that true democracy does not flourish when citizens are not engaged (a) as social members of their local community; (b) as citizens of their local community; and (c) as citizen of the state and national community. In keeping with the logic of this blog, it strikes me that I should include the notion that (d) as citizens with legal rights under the law, democracy cannot flourish if citizens are unable to exercise their legal rights, both with respect to harms done to him or her from both government and other individuals or corporations.
In the "Overworked American," Juliet Schor shows how the societal and economic pressures to constantly work and focus on work creates an effect of a population of dis-involved people, thus affecting people's abilities to act as community members. Illustrative is what was recently being reported out of North Carolina. 84% of North Carolina's young adults report they don't participate in any organized groups, and 67% of North Carolinians overall are not involved in such activities either. However, similar statistics may be found throughout the United States.
Therefore, just as the Family Medical Leave Act was enacted premised on the fact that too many Americans were unable to take the necessary time to be available to their sick family members, so too too many Americans are not available to their community.
Could one fashion a Civic Engagement and Community Service Leave Act modeled off of the Family Medical Leave Act? To address the above-described challenges of workers caring for their family members, employees who work for employers with 50 or more employees in that employee's work site, or within a 75 mile radius of that work site, are entitled to a total of 12 workweeks of leave during a 1 year period. No employer is required to pay for this leave. However, if the employer already provides paid sick personal or vacation leave that would cover all or part of the leave to which the employee is entitled, use of that leave may be counted against the 12 weeks to which an employee is entitled.
Could or should a similar leave protocol be established for members of community and political associations to have leave to handle their needs? Fashioning a fair statute could be very difficult. Employees often use FMLA to address their personal illnesses, which is totally inapplicable to a community, or to help family members address discrete life or death illnesses. Documentation of their immediate need is usually documented by written statements of medical professionals. Communities don't have similarly discrete life or death issues for which a particular sort of professional might be universally recognized to diagnose. In other words, one can rarely report "if I don't assist my community today rather than tomorrow, it will die. Furthermore, people use FMLA for health crises, not for routine care. Our communities needs routine care, not merely involvement in crises.
Thus, I am somewhat at a standstill, but publish this article anyway in hopes that public contemplation of the issues might lead to a legislative fix of some kind.
It is worth noting how the religious accomodations laws are interpreted. To the extent that accomodation or switching shifts is possible for any other reason, it must be acceptable to accomodate religious needs. Thus, one could institute a statute that is broad based, requiring employers to make legitimate efforts to accomodate a certain amount of civic obligations per year, but broadly permits an employer to avoid going through "extra efforts" to accomodate its employees.
As a lawyer, I am well aware that a statute whose language is too vague cannot be enforced. In other words, the statutory provisions must be reasonable clear enough so that a reasonable person can appreciate what actions are made illegal under the statute. If the statute is so vague that a reasonable employer could have had no way of knowing what actions violate the statute, the emplloyer can't be held liable.
Thus, policy thinkers interested in such a staute must think through by what standard an employer might be required to consider accomodating an employee's proclaimed community emergency. Would a community meeting qualify? What about a meeting with the mayor? What about a boy scout trip?
Again, I have no interest in creating a new legal maze that simply requires countless lawyers to negotiate over every twist and turn. Instead, I write to raise the question whether the framework of the Family Medical Leave Act should be used as a model to create a statute to advance civic engagement, which often suffers from the same lack of community care, a problem somewhat analogous to the problems that lead to the Family Medical Leave Act.
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