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Sizing Up the FMLA

August 1, 1998
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Related Topics: Employee Leave, Featured Article
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There’s that great old fable about the blind men and the elephant: Six blind men are asked to describe the kind of animal they’re touching. But they’re each grabbing different parts -- trunk, tusk, leg, tail -- so they each describe a different animal. It’s an effective analogy for the Family and Medical Leave Act (FMLA) of 1993. Depending on what part of it you’re grabbing, you’ve got a completely different creature.

Those differences are creating quite a fuss in Washington, D.C. Some lawmakers, focusing on the FMLA’s protection of the ill and of families, find a manageable, docile, benevolent animal. Others, citing tales of interminable bureaucracy and convoluted compliance rules, find a poorly behaved, troublesome beast.

Both sides agree on one thing: The FMLA has the best of intentions. But from there, their attitudes veer down sharply different paths. In fact, the combatants have moved far past grumbles and gripes. Each side has introduced its own amendments that will greatly change the FMLA -- and, in turn, the workplace. Here’s what HR professionals need to know about the key players and their propositions.

The two sides of FMLA.
In April 1996, a commission of such politicos as Sen. Christopher Dodd (D-Conn.), Secretary of Health and Human Services Donna Shalala and former Secretary of Labor Robert Reich issued an upbeat Report to Congress (RTC) on the state of the FMLA. So convinced were they of the law’s user-friendly nature, they entitled the report “A Workable Balance.”

The report, government-sponsored and two years in the works, used public hearings and national surveys to gauge the cost, benefits, administration and impact of the FMLA. The conclusion: “The FMLA has not been the burden to business that some feared. For most employers, compliance is easy, the costs are non-existent or small and the effects are minimal.”

In fact, Dodd and Rep. William L. Clay (D-Mo.) are using the RTC to justify expansion of the FMLA. Dodd’s 1997 amendment would stretch coverage to 13 million more workers by triggering FMLA responsibilities for companies with 25 or more employees rather than just companies employing 50 or more people, as the current legislation warrants. Clay’s bill -- like a similar one introduced by Sen. Patty Murray (D-Wash.) -- would also allow parents to take up to 24 hours in intermittent leave to attend children’s school activities, medical and dental appointments or to accompany an elderly relative on appointments.

In a press release distributed earlier this year, Dodd called the FMLA a “resounding success for both workers and business.”

That’s not what Rep. Harris Fawell (R-Ill.) has been hearing. This April, Fawell, as head of a six-person bipartisan group, introduced the Family and Medical Leave Clarification Act, an amendment that would make the FMLA more employer-friendly. In his introductory statement, Fawell said about the RTC: “In April 1996, we were told that all was well with the FMLA. But contrary to these assertions, the report was not a complete picture ... [T]here is compelling evidence of problems with the implementation and enforcement of the FMLA.”

This evidence, Fawell told Workforce, was culled from a June 1997 hearing in which “witness after witness” discussed implementation and compliance problems with the FMLA. Fawell discovered the problems are also right in line with what two authors of this article, Jeri White Papa and Richard E. Kopelman, had discovered after conducting a survey similar to the RTC. The result was strikingly less rosy than the Report to Congress had been. Conducted among HR professionals, the study indicated that all was far from right with the FMLA.

Indeed, it revealed a lot was wrong. Margaret Slamin, director of HR for a New York City service organization, spoke for many who took the survey: “FMLA is a typical government screw-up. The aim may have merit, but the bureaucratic lack of concern for business operations has made its administration untenable.”

A tale of two surveys.
How can two surveys so similar glean such different results? The RTC found that on average, FMLA administration was rated “very or somewhat easy” by 76.4 percent of respondents who had FMLA responsibility. The ratio of easy-to-difficult: slightly above three to one in terms of five key FMLA tasks.

“The [RTC] tended to, in our opinion, overplay the positive and underplay the negative,” says John Tysse, senior vice president of the Labor Policy Association, a Washington, D.C.-based employer association that focuses on employment-policy issues. “It drew some sweeping conclusions that weren’t accurate with respect to what the actual experience with the FMLA was.”

Actual experience with the FMLA, according to many HR professionals, is better reflected by the authors’ 1997 survey.

The authors’ research found only 49.6 percent of HR respondents reporting that FMLA administration was “very or somewhat easy.” The ratio of easy-to-difficult: just under one to one. Furthermore, after taking into account respondents’ reports of actual FMLA-related practices, the proportion reporting “easy” administration fell to 30 percent -- counting only those in compliance with the law. So among complying organizations, the ratio of easy-to-difficult was less than 1:2. Clearly, the authors’ results, in conjunction with the Executive Master of Science in Industrial and Labor Relations Program (MSILR) at Baruch College (BC) in New York City, and those reported in the government-sponsored RTC are strikingly different. [Note: the RTC survey was larger in scope than the authors’, with more than 1,000 responses vs. 81. Statistical analyses were performed that took the sample size into account.]

A side-by-side survey comparison.
Note these differences:

  • Determining employee eligibility for FMLA leave was viewed as easy by 92 percent of RTC respondents vs. 66.7 percent of author survey respondents.
  • Reconciling FMLA with pre-existing leave policies was viewed as easy by 78.9 percent of RTC respondents vs. 65.4 percent of author survey respondents.
  • Maintaining additional records was seen as easy by 76 percent of RTC respondents vs. 39.5 percent of author survey respondents.
  • Coordinating FMLA with other federal laws was seen as easy by 74.3 percent of RTC respondents vs. 43.2 percent of author survey respondents.
  • Differences between the two surveys in perceptions of the ease of managing the intermittent use of leave were also huge: 60.8 percent of RTC respondents vs. 33.3 percent of author survey respondents.
One major factor may have geared the RTC survey toward positive responses. The survey was conducted between January 1994 and June 1995, before the Department of Labor’s final regulations set in. These regulations added several new wrinkles, including an unwieldy broadening of the definition of a serious health condition. With the final regulations, Fawell and others say, the true difficulty of administration may have emerged.

What HR wants -- and how it might get it.
Sen. Fawell doesn’t mince words when he speaks of the FMLA. “The Department of Labor has done a job on the business community and made things very difficult,” Fawell told Workforce.

Most HR professionals agree. So what needs to be changed?

High on the wish list is tightening of the definition of a serious health condition. H. Thomas Acree, vice president of HR for Adam Wuest, a Cincinnatti, Ohio, bedding manufacturer, says his company tends to accept most claims of serious health conditions because it’s too time consuming and expensive to contest poor documentation. “I can say with confidence that FMLA is costing our company additional money and productivity. The incentive for people to accomplish [tasks] on their own is lost. The attitude is that people want more time off, and this is the way to do it,” he says.

Tysse echoes similar complaints from LPA members. Although most view the law more as a nuisance than a real threat to business, a few companies have been forced to scale back existing leave programs to conform to the FMLA. “Some employers have seen their absence rates go way up as a result of [the FMLA] ... Unfortunately, it has tended to penalize companies with the most progressive policies,” Tysse says.

In addition to having the definition of a serious health condition tightened up, Slamin, the New York City-based HR director, would like the intermittent leave provisions lightened up. Oh, and one more thing: “Please do not expand FMLA!” she says.

If enacted, Fawell’s bill would help ease some of these FMLA trouble spots. In its current form, the Family and Medical Leave Clarification Act would:

  1. Redefine “serious health condition.” The bill would repeal the Department of Labor’s current regulations on serious health conditions and instruct them to create regulations closer to the FMLA’s original definition. “A review of the Democrats’ own committee report ... makes it pretty clear that Congress didn’t intend an ingrown toenail or the flu to be considered ‘serious health conditions’ for which the FMLA would apply,” says Fawell.
  2. Allow employers to require employees to take intermittent leave in half-day increments. The half-day requirement, says Fawell, will ease paperwork and allow employers to better cover for absent employees.
  3. Shift to the employee the responsibility to request that leave be designated as FMLA leave and that they provide written application within five working days.
  4. Permit an employer to require an employee to choose between taking unpaid leave under the FMLA or paid absence under an employer’s plan. Paid leave would be subject to the employer’s normal rules for taking such leave, including attendance requirements.
  5. Require the employee’s health-care provider to document on the FMLA certification form the medical findings supporting an FMLA leave, giving the employer more information upon which to determine whether a leave request qualifies under FMLA. “[This] reduces exposure for personal liability of supervisors who can’t be expected to know every jot and title of a law and regulations that lawyers can’t always understand,” Fawell says.
At press time, none of the FMLA bills had moved, and remained likely to be held over when Congress wraps up in October. Fawell said he didn’t expect his bill to get far this session, but saw it as a means to start a bipartisan discussion on how Congress can clean up the FMLA and return it to its original intent.

Meanwhile, the debate rages. Clay’s staff stands by the efficacy of the FMLA. A House committee staff member says Clay -- who, with Fawell, is a member of the Committee on Education and the Workforce -- would oppose any amendment to restrict the FMLA. The staffer says his group stands by the RTC survey, and charges that the law’s opponents had been trying to undermine the FMLA politically. “All these special-interest groups have thrown out these red herrings [about problems with the FMLA], and none have come through,” the staffer says. “We’d debate anyone anywhere that the [FMLA works] and that most employers find it works quite nicely.”

Fawell, conversely, opposes Clay’s amendment, saying Clay’s proposition to offer 24-hours leave is a “slippery slope that is contrary to the original intent of the FMLA ... If a parent-teacher meeting becomes covered by legislation intended for serious medical conditions, where and how would we ever cross the line for activities which might well be important, but have nothing to do with serious health conditions?” Fawell says if his act became law, he would support the Working Families Flexibility Act, which allows employees to choose paid time off in lieu of overtime pay. Employees could take this leave to do any activity -- including those outlined in Clay’s amendment, Fawell says. (Dodd’s office didn’t return calls.)

Fawell remains opposed to any expansion of the FMLA in its current form, saying that expansion would simply extend the law’s difficulties to more employers, more often.

Tysse says most of the 250 large corporations that make up the LPA would indeed like the current FMLA problems fixed before it’s extended. “[Expansion proponents] have been saying in their kind of rosy scenario that the FMLA isn’t putting anybody out of business. Nobody’s made that claim, but that doesn’t mean it hasn’t been a pain in the butt to implement. It’s too bad. Everybody still acknowledges the intent is great.”

As each side continues to promote its view of the elephantine FMLA, one thing is sure: This well-intentioned law will continue to stir up controversy. If HR professionals want to get their vote in on what kind of animal the FMLA is -- and what kind it should become -- they’d better raise their voices soon.

Jeri White Papa is Director of Human Resources for Selfhelp Community Services, Inc. in New York City. Richard E. Kopelman is Academic Co-Director of the Executive Master of Science in Industrial and Labor Relations (MSILR) Program at Baruch College in New York City.

Workforce, August 1998, Vol. 77, No. 8, pp. 38-43.

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