Workforce.com

Labor Department Report Illuminates FMLA Challenges

July 12, 2007

A massive survey about employee leave law by the Department of Labor produced a long report, and may result in a very long wait before the agency proposes reforms to the Family and Medical Leave Act.

In late June, the agency released a 162-page report on the FMLA, based on 15,000 comments it received over a recent three-month period from workers, employers and policy experts.

The report stated that FMLA is working well when employees exercise their right for up to 12 weeks of unpaid leave for the birth or adoption of a child or to deal with their own or a close relative’s sickness. The law, passed in 1993, covers about 76 million workers.

But the report also indicated the employers have substantial complaints about unscheduled intermittent leave for chronic conditions and are flummoxed by how to define a serious health condition.

“The overall weight of the comments is that the FMLA has had immeasurable benefits for millions of workers and has imposed significant costs on the economy,” the report states.  

Margaret Hart Edwards, a shareholder in the San Francisco office of employment law firm Littler Mendelson, says the report is silent on next steps.

“They have received a message. Whether they will act on the message is something else,” she says of the department.

The uncertainty may persist through the end of the Bush administration.

“We hope to have further discussions with stakeholders and policy-makers and see where we go from there,” says Victoria Lipnic, assistant secretary of labor for the Employment Standards Administration. “We have no imminent plans regarding the regulations, but clearly there are areas that need to be cleaned up.”

The part of FMLA employers would most like to scrub is irregular, unscheduled leave. Under the law, employees can be absent from work in increments of less than one hour. They have up to two days after they’ve taken time off to declare that it was FMLA leave.

Intermittent FMLA use can increase costs for employers who have to cover unexpected absences. The report states that manufacturing, delivery, transportation, utilities, call centers, and public health and safety are operations that have the most difficulty with unscheduled leave.

“It’s an absence-at-will provision,” Edwards says.

Although most employers would agree with that assessment, many employees want the protection afforded by intermittent leave. For instance, one worker testified that made it possible to care for an elderly parent without resorting to federally subsidized nursing.

Given the passion on both sides, changing intermittent leave might be a monumental task. “It does not by any means present any easy resolution,” Lipnic says.

The department did not anticipate that intermittent leave would be used by so many workers—up to 3 million, according to estimates. Its popularity has been fostered by economic trends like an aging workforce, around-the-clock global competition and rising health care costs.

“You have all of that converging in one place,” she says. “Twelve years ago, people weren’t thinking along those lines.”

Amending unscheduled leave in a rule-making process would require months or years. And then Democratic majorities in Congress could undo reforms through directives in appropriations bills.

More targeted adjustments, such as revising the definition of a serious illness or redesigning the medical certification form, would be somewhat easier but also lengthy.

“Maybe we take the low-hanging fruit,” says Leonard Sanicola, practice leader for WorldatWork. “I don’t see anything this year. But in ’08, we could see some pieces move into a regulatory phase.”

It may not be during Bush’s tenure, but FMLA will be reformed, according to Sanicola.

“This report will lead to [FMLA] changes,” he says. “It’s just a question of which part.”

—Mark Schoeff Jr.