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Employer FMLA Frustrations May Rise With First Extension

December 27, 2007
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Employer frustrations with a federal employee leave law may be exacerbated as it expands for the first time since its enactment in 1993.

The expansion is included in a defense authorization bill that President Bush is declining to sign until Congress changes the wording of a provision related to the Iraq war. The FMLA expansion would enable spouses, children, parents or next of kin to wounded military service personnel to take 26 weeks of unpaid leave to care for their loved one.

That’s more than double the 12 weeks of time off for the birth or adoption of a child or the sickness of a close relative provided currently under the Family and Medical Leave Act.

The expansion idea drew bipartisan congressional support because it targets a politically popular constituency—military families—and emanated from a national commission chaired by former Sen. Bob Dole and former Health and Human Services secretary Donna Shalala.

Companies won’t have a problem with the straightforward mandate related to relatives of wounded soldiers, but other provisions are murky, according to attorney Margaret Hart Edwards of Littler Mendelson’s San Francisco office.

For instance, language in the bill allows 12 weeks of unpaid leave for “any qualifying exigency” that arises from a spouse, son, daughter or parent being on active duty or called to active duty.

The appropriate circumstances would have to be determined by Department of Labor regulations. Whether companies can require that an employee certify a relative’s active duty status also is subject to the regulatory process.

Until rules are promulgated, the situation will be ambiguous. “That puts a big burden on employers,” Edwards says. “The opportunities for abuse are substantial.”

Relatively few people would qualify for leave to care for an injured service member.

Department of Defense statistics show that 28,661 soldiers have been wounded in Iraq and 1,840 in Afghanistan. But those who are affected by a relative being called up for duty could total hundreds of thousands.

Employers voiced concerns about such FMLA growth at a congressional hearing this fall. Business advocates didn’t oppose extending FMLA for military families but they urged Congress to reform the law first.

A Department of Labor survey about FMLA earlier this year generated 15,000 comments, many from employers complaining about unscheduled intermittent leave and the definition of a serious health condition.

Resistance from corporate America made passage of the extension provision difficult, adding a further frustration for families who already face sometimes horrific recovery journeys, according to an advocate for broader leave laws.

“This was significant and historic,” says Kate Kahan, director of work and family programs at the National Partnership for Women and Families. “On the other hand, it’s only an extra three months of leave. This is just a small step in the right direction.”

After claiming a majority in Congress, Democratic leaders have introduced a number of FMLA expansion bills, including some for paid leave.

“We’re optimistic that all of them are going to be moving in a more significant way (in 2008),” Kahan says.

Edwards says that FMLA expansion is “inevitable” because “that is what American workers want.” She cautioned lawmakers to ensure that new rules are easy for employers to implement.

Mark Schoeff Jr.

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