DOL Review May Be Harbinger of FMLA Expansion--Or Not
A federal review of the country’s primary employee time-off law could be a prelude to expanding leave policy or curbing it. Last month the DOL officially solicited public comment on the Family and Medical Leave Act.
On December 1, the Department of Labor officially solicited public comment on the Family and Medical Leave Act. Responses will be collected until February 2.
The law, which went into effect in 1993, grants employees at companies with 50 or more workers 12 weeks of unpaid leave in a 12-month period to deal with the birth or adoption of a child or a serious medical condition of their own or of a close family member.
Since its inception, the measure has generated many court cases involving the definition of a serious illness, sufficient notice and a host of other issues.
The Labor Department estimates 76.1 million workers were eligible for FMLA leave in 2005 and that 6.1 million took leave under the law, with 1.5 million of them using it intermittently.
The timing of the regulatory review, which has been on the department’s agenda for many years, is suspicious to one expert.
“This is being done as a preamble to expanding FMLA,” says Vicki Schweitzer, senior vice president for Aon Consulting’s health and productivity practice.
Democratic majorities in Congress are likely to call for modernizing the law so that it extends to more family members and to advance proposals for paid leave, Schweitzer says.
Before expansion occurs, the regulatory review can modify aspects of the act that have been vexing business—like intermittent leave.
An advocate, however, intends to resist corporate efforts to trim the law. “We’re going to do our best to make sure there aren’t any cutbacks to FMLA,” says Deven McGraw, COO of the National Partnership for Women and Families.
For instance, McGraw warns against changing intermittent leave so that it can only be taken in one-day increments. That might mean that a two-hour chemotherapy session costs a worker a day of leave.
That kind of FMLA reform might not occur. The Labor Department is asking for feedback on the law; it is not yet proposing new rules.
When the department modified overtime pay regulations earlier in the Bush administration, the exercise took a year and a half. That process began with a proposed rule change. The FMLA review is starting one step prior to that point, with a request for information on the current law.
“At some point, a Department of Labor will have to do some kind of regulatory cleanup,” says Victoria Lipnic, assistant secretary of labor for employment standards. She says she can’t predict whether the current department will change FMLA regulations.
As the process continues, the business community won’t clamor to eliminate FMLA, says Jim Brown, vice president of FMLASource at ComPsych, a Chicago-based provider of employee assistance programs.
“People are struggling with administering FMLA,” he says. “We’d like to see some clarification.”
When a company has to scramble to cover an unexpected absence, it usually has to pay overtime or hire a temp. But FMLA costs are hard to determine.
In 2000, companies seemed to be sanguine about intermittent leave, with 81 percent saying that it had no impact on productivity and 93 percent asserting that it didn’t affect profits, according to a survey that year by Westat, a statistical survey research organization.
Sometimes, businesses are more generous with leave than the FMLA dictates. A survey of 241 benefits managers, public employers and professional service providers by the International Foundation of Employee Benefit Plans found that 25 percent of organizations allow paid leave for the care of a domestic partner and 23 percent for a grandparent or sibling.
“Everybody’s definition of family is starting to change,” says Julie Stich, senior information specialist for the organization. “You take care of the people who you consider important to you.”