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Push to Revamp FMLA Is in Limbo

May 27, 2005
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If some corporate groups have their way, the Family and Medical Leave Act will undergo the biggest changes in its 12-year history. When exactly that might happen is anyone’s guess.

Groups ranging from the U.S. Chamber of Commerce to the Society for Human Resource Management say rogue employees are using FMLA to take time off for colds instead of for serious illnesses. The groups want the Labor Department, which missed an informal March deadline for modifications to the act, to tighten rules.

Lining up on the other side of the issue are the National Partnership for Women & Families, the AFL-CIO and some 100 Democratic lawmakers, including House Minority Leader Nancy Pelosi, D-California.

“FMLA has been beneficial to business,” she wrote with her colleagues in an April 11 letter to Labor Secretary Elaine Chao urging her to resist corporate pressure.

The law’s re-examination was prompted by an employer-friendly Supreme Court ruling in 2002. In that case, the court struck down a Department of Labor penalty that required employers to grant additional time off to employees who had not been notified in advance that their absences were being counted as FMLA leave.

The FMLA was originally enacted to protect employees from losing their jobs or being demoted after missing work for a birth, adoption or major illness suffered by the worker or a spouse. The Society for Human Resource Management was “hesitant” to support the initial legislation, said Sarah Pierce, the group’s employment legislation manager. She is also chairwoman of the National Coalition to Protect Family Leave, which is now seeking to overhaul FMLA.

The legislation was approved in 1993 by wide margins in the Senate and House. The day after that vote, it became the first piece of legislation signed by President Clinton. Some 50 million workers have since taken the leave, the National Partnership for Women & Families said.

Clinton’s predecessor, George H.W. Bush, had twice vetoed the bill, citing its costs. Corporate groups claim they continue to pay the price.

Firms sacrificed $21 billion in lost productivity and other FMLA-related costs last year, the Employment Policy Foundation said in a study released in April. Almost one-third of leaves were for fewer than five days, suggesting they may not have been for serious medical problems. Workers didn’t notify their supervisor half of the time before taking off.

“If these rules were tightened up, I think things would improve,” says EPF chief economist Janemarie Mulvey.

The Chamber of Commerce wants to limit leave to serious illnesses, give companies more ways to prevent abuse and increase the minimum amount of time that a worker can take off. The recommendations are echoed by organizations including the HR Policy Association.

“Things aren’t working as they were intended to,” says HRPA assistant general counsel Timothy Bartl.

Some companies, however, may benefit from FMLA. In a 2000 Labor Department survey, 90 percent of firms said the law had “no noticeable effect, or a positive effect” on profitability, Columbia University School of Social Work professor Jane Waldfogel wrote in the Monthly Labor Review.

Corporate lobbyists and employee groups agree on the need for rule clarification. But the Labor Department has yet to set a new time frame for changes.

“The rulemaking process is a long, iterative process,” says Victoria Lipnic, assistant secretary for employment standards. “We take into account as much information and input as we possibly can.”

Lawmakers, meanwhile, stand by.

“We’re just waiting, like everyone else, to see whether the administration takes any action,” says Kevin Smith, a spokesman for House Education and the Workforce Committee Chairman John A. Boehner, R-Ohio.

Jonathan Make

 

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