Family and Medical Leave

Employers Want “Administrative Complexities” Addressed before Congress Considers Mandatory Paid Sick Leave

A new report from the U.S. Department of Labor (USDOL) outlines several complaints voiced by employers concerning the 1993 Family and Medical Leave Act (FMLA). For example, many employers claim that FMLA’s definition of “serious health condition” allows employees to abuse medical leave.

The group that spearheaded the FMLA’s passage in 1993 argues that the USDOL report is a “compilation of opinions and anecdotes” rather than “an objective, scientific study on the use of the FMLA.” In a statement on its website, the National Partnership for Women and Families (also known as the National Partnership) expressed fears that the USDOL report “opens the door for regulatory or statutory changes that will make it more difficult for people to take FMLA leave when they need it: to care for a new child or when faced with a serious medical problem.”  

The 181-page report was issued in June after the Department received over 15,000 comments in response to its December “Request for Information” on the FMLA. One of the first laws signed by then-President Bill Clinton, the FMLA requires employers of 50 or more to provide up to 12 weeks of unpaid leave to employees for the birth or adoption of a child or for a serious medical condition, including those suffered by close family members. The National Partnership says that 50 million Americans have taken some type of FMLA leave since 1993.

The National Partnership is now in the forefront of efforts to pass legislation that would require employers to offer paid sick leave. But at least one group of employers, which calls itself the Coalition to Protect Family Leave, says it will oppose the proposed Healthy Families Act unless Congress takes action to “strengthen the FMLA by clarifying the medical leave interpretations and other FMLA administrative complexities which are causing problems in the workplace.” The Coalition, led by the Society for Human Resource Management, says on its website that “expanding a law that is not working properly will only exacerbate the problems that employees and employers are having under the law’s misapplication.” In a May 2007, the Coalition wrote a letter to the U.S. House of Representatives opposing an expansion of the FMLA for military service members. The same or similar legislation passed the Senate in August as S. 1894, the Support for Injured Servicemembers Act. See “On the Hill,” a report published by the National Employment Lawyers Association.

According to the National Employment Lawyers Association, the U.S. Department of Labor drafted new regulations for the FMLA in 2005, but never released them for public comment. At the same time, the National Partnership for Women and Families secured signatures from over 200 groups, some only local or regional, opposing the Department’s bid to change FMLA rules.

The current Department of Labor report says that “there is broad consensus that family and medical leave is good for workers and their families, is in the public interest and is good workplace policy.” See the foreword of the report published on page 35550 of the June 28, 2007, Federal Register. But its eleven chapters are loaded with problems both large and small that employers say they want addressed. Among the most prominent:

  • Reduce the use of unscheduled, intermittent FMLA leave. This is by far the biggest issue for employers. “With respect to employer comments, no other FMLA issue even comes close,” the department says in the executive summary of its report. See page 35553 of the June 28, 2007, Federal Register. According to the USDOL, employees claim a chronic serious health condition and use FMLA leave as a pretext for tardiness or for leaving work early, to obtain a preferred shift instead of the one assigned, or to convert a full-time position into a part-time one. Not surprisingly, employers report that this abuse creates problems with scheduling, attendance, productivity and morale. Of course, the ability to take intermittent leave is important to employees whose chronic conditions flare up or who need periodic medical treatment or tests. According to the USDOL report, the Act requires 30 days notice for FMLA leave that is foreseeable, but has a less clear “as soon as practicable” notice requirement in other cases, which the Department says it has interpreted to mean two working days after the need for leave becomes known. (See executive summary of report, page 35554 of June 28, 2007, Federal Register.
  • Restrict the definition of “serious health condition” to ensure that only truly serious health problems are covered. Employers say the department’s current definition of “serious health condition” allows employees to use FMLA leave for any medical condition that results in a doctor’s note and more than three days’ illness (e.g., Friday, Saturday, and Sunday). The FMLA statute defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.” But FMLA regulations currently include six different tests for what constitutes a serious health condition in part because the Department found it difficult to define “continuing treatment.” See Section III.A. of the USDOL report on page 35564 of the June 28, 2007, Federal Register. Employers say the most problematic of these is a provision that includes as a serious health condition any three-day illness for which the employee sought “treatment two or more times by a health care provider . . . .” Although by no means unanimous, some employers have suggested that this regulation might be tightened up by requiring a longer absence (of, for example, ten days) before FMLA leave kicks in. Others suggested that the Department might require that the consultation with a health care provider occur during the period of incapacity rather than weeks later. See Section III.B. of report on page 35570 of the June 28, 2007, Federal Register.
  • Prohibit employees from using FMLA to avoid notice requirements and other rules regarding the use of paid leave. According to the USDOL, the FMLA gives employees the option of substituting paid leave for unpaid FMLA leave. If employees forego their paid leave, the employer may force them to use the two leaves concurrently (i.e., employees may not stack 12 weeks of unpaid FMLA leave on top of any accrued paid leave provided by the employer). (See “Substitution of paid leave” in executive summary of report, page 35555 of June 28, 2007, Federal Register. Employers complain that the availability of FMLA allows employees to access paid leave without adhering to established policies for taking it. These policies may require that supervisors be notified, that leave be taken in minimum increments (of a half-day, for example), that seniority be honored or that leave not be taken during peak periods. To remedy the problem, some employers have suggested forcing employees to choose between FMLA and other paid leave. Employees, however, told the Department of Labor that the ability to substitute paid leave was critical in many cases. Many workers simply cannot afford to miss a paycheck.
  • Give employers greater power to transfer employees to alternative positions. Current FMLA regulations allow an employer to transfer an employee to another position when both know that the employee will need intermittent leave for a medical condition (i.e., the need for intermittent leave is foreseeable). Some employers also want to have this power when the need for leave becomes unforeseeable. They contend it was included in the FMLA statute to give employers more staffing flexibility and see no reason why they should not have that flexibility regardless whether the need for leave is foreseeable. See executive summary of report on page 35555 of June 28, 2007, Federal Register.

For more information or to see the complete U.S. Department of Labor report, see the Department’s website.