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Senate Hearing Focuses on Successes, Challenges of FMLA

On February 13, the Senate Health, Education, Labor, and Pensions Subcommittee on Children and Families held a hearing, “Writing the Next Chapter of the Family and Medical Leave Act Building on a Fifteen-Year History of Support for Workers.”

The Family and Medical Leave Act (FMLA) (P.L. 103-3), enacted in 1993, provides eligible employees with up to 12 weeks of unpaid leave during a 12-month period for the birth of a child and to care for the newborn child; placement with the employee of a child for adoption or foster care; care for a spouse, parent, son, or daughter with a serious health condition; and a serious health condition that makes the employee unable to perform the function of the employee’s job. Recent amendments also allow employees to take FMLA leave to care for a covered servicemember with a serious injury or illness incurred in the line of duty or because of a servicemember’s call to active duty status.

Chair Chris Dodd (D-CT) said, “The FMLA has been essential to protecting families…since its passage, more than 60 million Americans have used their time off so that they can watch over a newborn or adopted baby, or help a parent through an illness, or get better themselves, knowing that their job will be there for them when they return. And we’ve heard hundreds of thousands of stories about how FMLA has helped workers and their families. Children have benefited significantly: When parents can be there for their sick children, they recover faster, avoid more serious illness, and stay healthier. Family leave encourages mothers to breastfeed longer and provides more time for parent-child interaction, fostering positive emotional development of children.” Sen. Dodd continued, “At the same time as it has safeguarded families, the FMLA has been good for business: With lower turnover and a boost to morale, 90 percent of employers told the Department of Labor in 2000 that the law had a neutral or positive effect on profits. Those gains for health, for families, and for employers are well worth noting as we mark this important anniversary. But the true reason for celebrating anniversaries is not to look back it’s to look forward. When it comes to family leave in America, there is still much to do.”

Victoria Lipnic, assistant secretary for the Employment Standards Administration at the Department of Labor, discussed the rationale for the proposed regulations, including the need to update the law in light of subsequent court rulings on family and medical leave, statutory and regulatory developments since the FMLA’s enactment, and the lack of employee awareness regarding the law: “[I]t appears that many employees still do not know their rights under the law, how the FMLA applies to their individual circumstances, or what procedures they need to follow to request FMLA leave. This lack of understanding may contribute to some of the problems identified with the medical certification process and with employers’ ability to properly designate and administer FMLA leave.”

In discussing the details of the recently released regulations, Ms. Lipnic said, “The proposed rule consolidates all the employer notice requirements into a ‘one-stop’ section of the regulations. The proposal also imposes increased notice requirements on employers so that employees will better understand their FMLA rights and the FMLA leave available to them…In addition, the proposal specifies that, if an employer deems a medical certification to be incomplete or insufficient, the employers must return it to the employee, specify in writing what information is lacking, and then give the employee seven calendar days to cure the deficiency.” She continued, “The Department proposed to maintain the requirement that an employee provide notice as soon as practicable under the facts and circumstances of the particular case, but is eliminating the so-called ‘two-day’ rule. Absent an emergency situation, the Department expects that in cases where an employee becomes aware of the need for foreseeable FMLA leave less than 30 days in advance, it will be practicable for employees to provide notice of the need for leave either on the same or the next business day after the need for leave becomes known. For unforeseeable leave, the Department expects that, in all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave at least prior to the start of their shift.”

Debra Ness, president of the National Partnership for Women and Families, said that FMLA is working well, noting that “[T]he law has enabled both women and men to meet their responsibilities for their families without sacrificing their jobs and long-term economic stability. The law also helps combat gender discrimination and pernicious stereotypes about gender roles because both male and female workers can take FMLA leave, the law helps to ensure that women are not penalized or unfairly denied job opportunities simply because of assumptions about their family caregiving responsibilities. It also helps ensure that men have time to care for children and other family members, and take on more responsibilities at home.” She continued, “The FMLA has also been accepted and welcomed by employers. Data from the most recent national research on it, conducted by the U.S. Department of Labor, show that the vast majority of employers in this country report that complying with the FMLA has a positive/neutral effect on productivity (83 percent), profitability (90 percent), growth (90 percent), and employee morale (90 percent). The Act benefits employers in numerous ways, most notably the savings derived from retraining trained employees, from productive workers on the job, and from a positive work environment.”

Ms. Ness continued, “While the anniversary and expansion of the FMLA are cause for celebration, we are also very concerned for the vitality of the law given that the Department of Labor is proposing new FMLA regulations…the FMLA is working well. It 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…The Department has devoted a great deal of its 2007 report to the use of intermittent unscheduled leave and the problems employers claim to have with this part of the FMLA, and we fully expect that this will be an issue in the Department’s proposed regulatory changes. But because it has not surveyed employers or employees on this issue since 2000, the Department’s analysis was based heavily on anecdotes and self-reporting from employers regarding the use of unscheduled intermittent leave. The data, however, shows that unscheduled intermittent leave is a very small part of the leave taken under the FMLA and that the vast majority of FMLA-covered establishments do not have any problem with unscheduled intermittent leave.”

Ms. Ness also noted that paid family and medical leave was a critical next step toward the goal of “building a nation that values families,” saying, “Without some form of wage replacement, the FMLA’s promise of job-protected leave is a chimera for too many women and men. In fact, 78 percent of employees who have needed, but not taken, family or medical leave say they could not afford to take the leave. More than one-third (34 percent) of the men and women who take FMLA receive no pay during leave, and another large share of the population have a very limited amount of paid leave available to them…The lack of paid family and medical leave hits low-income workers hardest: almost three in four low-income employees who take family and medical leave receive no pay, compared to between one in three and one in four middle- and upper-income employees…Paid family and medical leave may even reduce health care costs: studies have shown that when parents are able to be involved in their children’s health care, children recover faster. Paid family and medical leave will also help the exponentially growing number of workers who are caring for older family members.”

“For the most part, the family leave portion of the FMLA…has worked as Congress intended, resulting in few challenges for either employers or employees,” said Katheryn Elliott, assistant director of Employees Relations at Central Michigan University, on behalf of the Society for Human Resource Management (SHRM). “Key aspects of the regulations governing the medical leave provisions, however, have drifted far from the original intent of the act, creating challenges for both employers and employees. In fact, 47 percent of SHRM members responding to the 2007 SHRM FMLA Survey reported that they have experienced challenges in granting leave for an employee’s serious health condition as a result of a chronic condition (ongoing injuries, ongoing illness, and/or non-life threatening conditions). HR [Human Resource] professionals have struggled to interpret various provisions of the FMLA, including the definition of a serious health condition, intermittent leave, and medical certifications.” Ms. Elliott continued, “For example, with regard to the definition of ‘serious health condition’…Practically any ailment lasting longer than three calendar days and including a doctor’s visit now qualifies as a serious medical condition…Although Congress intended medical leave under the FMLA to be taken only for serious health conditions, SHRM members regularly report that individuals use this leave to avoid coming to work even when they are not experiencing a serious health condition.”

Ms. Elliott added, “In addition to staffing problems, ‘intermittent leave’…has resulted in numerous issues related to the management of absenteeism in the workplace. The most common challenge HR professionals encounter in administering medical leave, for example, [are] instances in which an employee is certified for a chronic condition and the health care professional has indicated on the FMLA certification form that intermittent leave is needed for the employee to seek treatments for the condition. This certification, in effect, grants an employee open-ended leave, allowing leave to be taken in unpredictable, unscheduled, small increments of time. The ability of employees to take unscheduled intermittent leave in the smallest time units that the employer uses, often one-tenth of an hour or six minutes, means that employees can rely on this provision to cover habitual tardiness. While serious health conditions may well require leave to be taken on an intermittent basis, limited tools are available to employers in order to determine when the leave is, in fact, legitimate. As a result, 39 percent of HR professionals responding to [the survey] indicated that they grant FMLA leave for requests that they perceived to be illegitimate.”

Marcel Reid, of D.C. ACORN, and Kristen Grimm, president of Spitfire Strategies, also testified.

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