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FMLA Review Goes From Hurry-Up to Wait Mode

February 22, 2007
Related Topics: Employee Leave, Benefit Design and Communication, Latest News
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Last week, businesses and other advocates hurried to submit comments about unpaid leave to the Labor Department before the February 16 deadline.

Now they’re waiting—perhaps for a long time—for the agency’s next move. First, it will sift through 15,500 responses to its request for information, which was issued December 1. The comments are being posted at www.regulations.gov.

More than 14 years after it became law and five years after being at the heart of a Supreme Court case, the Family and Medical Leave Act is being formally analyzed.

At this point, the Labor Department could recommend regulatory revisions. That process also would require a comment period. Only Congress can change the underlying law.

A Labor Department official says it’s too early to tell how the agency will proceed.

“We will give this serious consideration, and that will take some time,” says Victoria Lipnic, assistant secretary of labor for employment standards.

Lipnic is impressed with the comments she’s read so far.

“People put a lot of thought into it,” she says. “We will figure out a way to sort [responses] and review them issue by issue.”

FMLA permits workers to take up to 12 weeks of unpaid leave to treat a major health condition, to care for a relative with a health problem or for the birth or adoption of a child.

Companies have used the FMLA review to highlight their concerns about administering the law.

A survey by the Society for Human Resource Management found that 78 percent of HR professionals say employees don’t understand medical leave rules, including the requirement to notify employers. Intermittent leave and the definition of a serious health condition also have vexed employers.

“The No. 1 feedback we get from our clients is the difficulty in managing intermittent unplanned leave,” says Joan Gale, a partner at Seyfarth Shaw in Chicago.

Workers don’t have to provide a note from their doctors when they take leave.

"You have to take it on faith, basically, and that’s the hard part,” Gale says.

FMLA advocates argue that the law has benefited businesses by increasing employee engagement through helping them cope with personal problems. They will resist scaling back FMLA and are promoting paid leave so more workers can afford to participate.

One worry among FMLA supporters is that the government will make changes based on company narratives.

“We are interested in more scientific data, rather than anecdotal, coming out of the Department of Labor on FMLA,” says Kate Kahan, director of work and family programs at the National Partnership for Women and Families. “We hope they’ll be inspired [by the FMLA comments] to get more actual data.”

As Labor Department officials review FMLA, litigation related to the law “is exploding,” Gale says. It is a challenge to get FMLA suits thrown out on summary judgment because juries often are required for the heavily fact-based cases.

Still, corporate America is not seeking to abolish FMLA.

“Most of our clients have had leave for years, long before FMLA,” Gale says. “It’s very hard to manage, that’s all. We see some abuse.”

Mark Schoeff Jr.

Related article:
Employee FMLA Rights and Certification

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