FMLA tweaks being mulled

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The Department of Labor is reviewing more than 15,500 responses to its call for comments about a 14-year-old law that affects 90 million American workers.
Those comments could lead to changes in the Family Medical Leave Act, which provides up to 12 weeks of unpaid leave to care for newborns, newly adopted children or to care for a seriously ill family member. In addition, the act allows intermittent leave for illnesses that last at least three days and require a doctor’s visit and a prescription.
The Labor Department is only interested in gaining input from the public at this point, said spokeswoman Darlene Hatchett. No plans have been made for major changes in the law.
“I don’t really know what the next step will be,” she said. “To be honest, we’re just looking for information about the law — how well it’s working, what people think of it.”
The comment period ended Feb. 16.
“The things I’ve heard show that the law is working very well,” said Sue Murphy, association manager of the National Human Resource Association. “It’s been positively received by employers and employees alike. It definitely gives people guidelines to work with — giving them job security.”
But the law is complex, and many people have trouble determining when to apply FMLA guidelines, she said.
Employees say the “unpaid” portion of the act makes it difficult to take advantage of the benefit. According to a 2000 survey by the Labor Department, 78 percent of workers who needed leave didn’t take it because they could not afford to be away from work without pay.
Steve Berkshire, director of Regis University’s graduate school program, said most businesses think the FMLA works well, but many want to have some regulations clarified.
“What counts as a serious illness?” he asked. “That’s a big issue. To some people, the law reads as if a cold or the flu might be a serious illness — anything that interferes with your ability to do work completely. Some groups have asked for a clarification of that law.”
The law also allows workers to take as little as a single day’s leave. That requires more paperwork — and some employer groups believe it leads to abuse by workers.
A survey conducted by the National Association of Manufacturers found that 60 percent of intermittent leave allowed workers a four-day weekend. The association also discovered several examples of possible abuse, including an employee who took 30 days of intermittent leave during a single year, usually on Mondays and Fridays.
“As currently interpreted by the DOL, the FMLA has become the single largest source of uncontrolled absences, and thus, the single largest source of all the costs those absences create: missed deadlines, late shipments, lost business, temporary help, and overworked staff,” said Burton J. Fishman of the manufacturers’ association. “Indeed, it is not too much to say that the FMLA has had the unintended consequence of creating an epidemic of absences.”
The association says three aspects of the law create the largest number of problems: the definition of serious health condition, the medical certification process and the misuse of intermittent leave.
The Labor Department study showed that two of 10 employers reported that intermittent leave had a negative impact on productivity. Six percent of employers said it hurt profitability.
“The language needs tightening,” Murphy said. “We haven’t heard many complaints, but one is that employers want guidelines to work with, particularly on intermittent leave. If there are people who want to take it an hour at a time, then that creates a great deal of record keeping. We need more clarification, tighter regulation in that regard.”
Some people are afraid that tighter regulations mean increasing the amount of time employees can take before being eligible to count their time off as family medical leave.
Half of all FMLA leave lasts less than 10 days. But after the comment period, 10 days could become the new threshold, making many employees ineligible for the leave.
But Berkshire said the department’s rules clarification is aimed at narrowing definitions of serious illness, qualifying what intermittent leave is available and determining how FMLA leave is calculated.
“Most businesses think the FMLA has worked pretty well,” he said. “But they are asking for clarifications, narrowing of some of the rules.”
Berkshire said he suspects the department will clarify several issues that have caused problems — including lawsuits. One of those issues is “serious illness.” Murphy agrees. She said that some companies are unsure about how to handle mental illness and emotional issues.
“I know some employers wanted clarification on the disability designation,” she said. “If a person is a recovering alcoholic versus a current user — is there a difference in the law? There are a lot of individual emotional disabilities that can get quite difficult to know how to handle under the law.”
Berkshire said that fears about the labor department trying to “gut” the law are unfounded. Any major changes would have to be approved by Congress.
“There’s been some confusion about that,” he said. “They aren’t trying to write around the law; the labor department can’t do that. They are just interested in clarifying the rules a bit. And that clarification could take the route of tightening the rules, or it could broaden them.”
The Department of Labor has not set a date for issuing changes or clarifications to the rules.
Amy.Gillentine@csbj.com