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House Subcommittee Recognizes History, Challenges of FMLA

On April 10, the House Education and Labor Subcommittee on Workforce Protections held a hearing, “The 15th Anniversary of the Family and Medical Leave Act: Achievements and Next Steps.” The Senate Health, Education, Labor, and Pensions Subcommittee on Children and Families held a similar hearing on February 13 (see The Source, 2/15/08). 

“The U.S.A. should be a leader in the world on these matters. But, at the current time, we lag far behind other countries in providing ‘family-friendly policies,’ such as paid leave, to our workers,” said Chair Lynn Woolsey (D-CA). “We need to catch up and catch up fast. However, in the 15 years since FMLA [the Family and Medical Leave Act (P.L. 103-3)] was passed, there has been good news! Millions of workers have been able to utilize leave to care for the birth or adoption of a child, to care for a sick parent, or to care for their own serious medical condition.” She continued, “There are also many good employers although not nearly enough in this country who realize that ‘family-friendly policies’ actually help, not hurt, their bottom line.”

In discussing the recent expansion of the FMLA to provide leave for family members of wounded servicemembers, Rep. Woolsey said, “I am proud to say that the expansion is the result of legislation introduced by Senators [Hillary] Clinton [(D-NY)] and [Christopher] Dodd [(D-CT)] and myself to provide additional leave for workers to care for seriously injured servicemembers…We are pleased that we were able to expand leave for military families, but of course our work on behalf of all working families is far from done…This includes passing legislation providing for paid sick days, paid leave, equal pay for women, and other necessary benefits for working families, so they can bridge work and family.”

Ranking Member Joe Wilson (R-SC) said, “As you noted, Madam Chair, this past February marked the 15-year anniversary of the Family and Medical Leave Act, legislation that has made a significant difference in the lives of millions of working Americans. The FMLA has provided countless numbers of workers and their families with job security and some peace of mind during critical times.” Rep. Wilson continued, “It’s my impression…that the law is working in the vast majority of cases, the way Congress intended for it to work. But as those of us who serve or have served in Congress know, things don’t always end up working the way they were meant to work. Even with the best of intentions, there can be unintended consequences and problems that were not fully anticipated. Despite the fact that the law has worked well for millions of workers, the FMLA is not without controversy among the employer community, worker advocates, and within the courts. It is well-documented that certain provisions in the FMLA have created ambiguity and confusion over the years, benefiting neither workers nor their employers. In that regard, I would suggest that the administration has taken a step forward not backward as some have claimed to update the regulations to reflect and account for court rulings and statutory and regulatory developments that have impacted the functioning of the FMLA.”

In discussing the proposed FMLA regulations, Victoria Lipnic, assistant secretary for Employment Standards at the Department of Labor, said, “The peace of mind that the FMLA brings to workers and their families as they face important, and often stressful, situations is invaluable. The Department’s proposed rulemaking reflects this need. It has four main goals: to address the recently enacted military family leave provisions; to update the regulations to comport with the current case law; to foster smoother communications among employees, employers, and health care professionals; and to update and clarify specific, problematic areas of the current FMLA regulations without limiting employee access to FMLA leave.”

Ms. Lipnic also addressed one of the areas of controversy between employers and employees, saying, “The Department is proposing to provide guidance on two terms in the current regulatory definition of a serious health condition. One of the definitions of serious health condition requires more than three consecutive calendar days of incapacity plus ‘two visits to a health care provider.’ Because the current rule is open-ended, the Tenth Circuit [Court of Appeals] has held that the ‘two visits to a health care provider’ must occur within the more-than-three-days period of incapacity…Rather than leaving the ‘two visit’ requirement open-ended, the Department proposes that the two visits must occur within 30 days of the beginning of the period of incapacity, absent extenuating circumstances. By clarifying that the period should be 30 days, the Department believes it is providing greater FMLA protection than the stricter regulatory interpretation offered by the Tenth Circuit. Second, the Department proposes to define ‘periodic visits’ for chronic serious health conditions as at least two visits to a health care provider per year. The Department is aware that some employers have defined this term, which is currently undefined in the regulations, narrowly to the detriment of employees. At the same time, other employers have expressed concern that the current open-ended definition does not provide sufficient guidance to employers who must approve or disapprove leave and risk making the wrong decision.”

“I was proud to be the ‘mother’ of the Family [and] Medical Leave Act. It took nine months to deliver each of my children, and nine years to deliver FMLA,” said former Rep. Pat Schroeder (D-CO). She continued, “Here we are in 2008, fifteen years later, and we haven’t made much progress. I do want to compliment you for including in the Defense Authorization bill [P.L. 110-181] an extension of leave to six months for families of workers who have a seriously injured servicemember and 12 weeks leave if it is needed because of the deployment or impending deployment of a family member…It seems to me we should be continuing to catch up with the rest of the world. Juggling work and family is going to be essential for almost every American family in the global economy we live in. The Norman Rockwell image of [a] full-time caregiver at home is history. FMLA should be expanded to provide coverage to all Americans and Congress should try and figure out how to move paid leave.”

Brenda Cossette, a human resources director from Minnesota who testified on behalf of the Society for Human Resource Management (SHRM), said, “SHRM supports the goals of the FMLA and wants to ensure that employees continue to receive the benefits and job security afforded by the Act. However, given the significant challenges HR [human resource] professionals continue to experience with FMLA administration, SHRM respectfully suggests that policymakers take steps to address the underlying problems both employers and employees encounter with the FMLA. Last year, the DOL [Department of Labor] completed a thorough review of the effectiveness of the FMLA regulations in which the Department received over 15,000 comments from employers, employees, and other interested organizations. The June 2007 DOL report on the FMLA noted that in many instances, when it comes to the ‘family’ portion of the FMLA, the regulations are basically working as Congress intended, with few concerns for employers or employees. However, the report also highlighted that in other areas, particularly the ‘medical’ leave portions of the regulations, differing opinion letters, federal court rules, and regulator guidance have clouded, and sometimes, undermined key provisions of the FMLA.”

She added, “In short, while SHRM appreciates a number of the changes proposed by the DOL, particularly the medical certification process, the Society believes the proposal fell short in two key areas the proposed regulation fails to significantly improve the definition of a serious health condition, and there still are no meaningful tools available for employers to effectively manage misuse of unscheduled intermittent leave or to address many of the unintended consequences of the existing regulations. These are important issues that are fundamental to effective FMLA administration and, as such, Congress should strongly consider policy options to remedy these challenges. Despite these shortcomings, SHRM believes this regulatory action is an important step toward restoring the balance intended by Congress between employers’ business needs and employees’ needs for time to attend to important family and medical issues.”

Debra Ness, president of the National Partnership for Women and Families, said, “While the anniversary and expansion of the FMLA are cause for celebration, we are also very concerned for the vitality of the law, given the proposed changes put forward by the Department of Labor in February…As my testimony will make clear, the FMLA is working and working well. The law does not need any significant regulatory changes. Rather we should be looking at how we can expand it so more workers can realize its promise of job-protected leave in times of need…Rather than working to limit employees’ access to family and medical leave, we should be examining how we can make FMLA a reality for more employees. Currently, close to 40 percent of workers in the United States work for employers with less than 50 employees, and thus, are not covered by the minimal protections the FMLA provides. Analysis by the National Partnership shows that reducing the employer-size threshold to 25 workers would extend FMLA protections to approximately 13 million workers. This would reduce the percentage of employees not covered by the FMLA from 40 percent to 29 percent.”

Ms. Ness also addressed the need to expand the family members covered by the FMLA, saying, “Families in the United States are not ‘one size fits all,’ and the FMLA needs to be expanded to recognize this reality. For example, several states have extended the protections of their state family and medical leave laws to domestic partners; Maine did so last year…Furthermore, as families are more spread apart geographically than ever before and caregiving requirements are increasing as the population ages, extended family members, like grandparents, siblings, adult children, and parents-in-law, are either needing care or stepping forward to take care of family members in need. Currently the FMLA does not recognize these relationships for the purposes of caregiving, leaving these caregivers without access to FMLA leave when they desperately need it.”

Chante Lasco, a new mother from Maryland, and Jennifer Hunt, a flight attendant from Virginia, also testified.

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