A No-Brainer that Even Congress Should Be Able to Agree On: An Important Unsung Amendment to FMLA

By Mark F. Kluger and William H. Healey

While the U.S. Senate is tied up in knots over this minor thing about health insurance, and the New York State legislature hit gridlock last week over legislation to amend the name of the Verrazano Bridge to its proper spelling, we have learned of a Bill pending in Congress that is a no-brainer: an amendment to the Family and Medical Leave Act that will add mourning the death of a child to the short list of reasons for 12 weeks of unpaid leave.

Although we are typically not advocates of more time off for employees or increased regulation of the workplace, we felt connected to this legislation when asked to look at it by Barry Kluger, whose daughter Erika died in a car accident in 2001, and who has been fighting for this amendment for years. The Sarah Grace-Farley-Kluger Act is named for Sarah Grace Weippert, a 12 year old from New York, Noah and Katie Farley of Illinois, both of whom died as babies, and for Erika Kluger of Arizona who died at 18. The Act has been introduced in Congress multiple times since 2011, but has always failed to get sufficient support.

This time, the Bill, also known as the Parental Bereavement Act of 2017, was reintroduced on March 16, 2017 with the House Bill sponsored by 3 Republicans and 3 Democrats and the Senate version sponsored by Montana Democratic Senator Jon Tester. The bi-partisan support is refreshing and promising, but it will still take a lot of pressure to get to the floor of both houses.

Currently, the FMLA provides employees of employers with 50 or more employees, 12 weeks of unpaid leave for the birth or adoption of a child, to care for a seriously ill spouse, child or parent or the employee’s own serious health condition, and various Service Member-related purposes. The amendment would simply add bereavement for the loss of a child to the list and would not allow for the leave to be taken intermittently.

While most employers allow 3 to 5 days of bereavement leave for the death of certain family members, such policies are not required by law and the parents of the children for whom the amendment is named insist that 24 to 40 hours away from work is not nearly enough time. As Barry Kluger told us, “I’m a member of a club that no one wants to join. The dues are just way too high…This legislation can ease the burden for those who may face this tragedy.” We recognize that an employee whose child dies can no doubt get a doctor to diagnose a mental health issue and take 12 weeks as a serious health condition under FMLA. But as Barry Kluger explained, most employees do not want the stigma that may come from such a diagnosis.

According to the Bureau of Labor Statistics January 2016 data, the median number of years employees remain with their employers in the U.S. is 4.2 years and the turnover rate for all industries is averaging around 18%. This amendment may be just one more way to keep a good employee who has suffered a tragedy.

As far as we know, Barry Kluger is not a blood relative. But maybe for purposes of getting behind this no-brainer legislation, we can put Congressional inertia and partisan nonsense aside and all be Klugers.

As far as the bridge is concerned, in 1524, Giovanni da Verrazzano discovered New York Harbor. For 50 years, the New York law naming a bridge in his honor has misspelled his name as Verrazano, one “z” short. So the NY Senate passed a Bill correcting the spelling, but the State Assembly is gridlocked on passing the legislation. The reason: the legislators claim that renaming the bridge will be too expensive. Really? How much can one “z” cost? Anyway, if our nation’s legislators can spend so much energy on the surname of a 16th century explorer, they can certainly find the time to do the right thing for people like the Klugers, Weipperts and Farleys and anyone else who has the misfortune of joining their club.