The FMLA Issue

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Unintended Consequences of the FMLA and its Regulations: Highlights findings that have resulted from 15 years of experience with the FMLA rules

Improvements to the FMLA Regulations Are Urgently Needed—Protect FMLA by Clarifying “Medical Leave” Provisions

Summary
The National Coalition to Protect Family Leave recognizes the benefits of the Family and Medical Leave Act (FMLA).  While the family leave provisions of the FMLA have raised few concerns, employers have experienced challenges with the “medical leave” provisions of the Act.  In order to preserve the integrity of the law’s leave protections, the medical leave provisions of the Act need to be modified to address inconsistent application and misuse of these particular provisions.

Congressional Intent
Enacted in 1993, the FMLA allows an employee who has worked at least 1,250 hours during a 12-month period in an organization of 50 or more employees to take up to 12 work weeks of unpaid leave during a 12-month period for the birth or adoption of a child (family leave); the care of a child, spouse, or parent who has a serious health condition; or a serious health condition that prevents the employee from performing the functions of his or her position (medical leave).
The Congressional intent for "medical leave" was spelled out in the Democratic majority of the House Education and Labor Committee’s report which stated that "The term 'serious health condition' is not intended to cover short-term conditions for which treatment and recovery are very brief. It is expected that such conditions will fall within even the most modest sick leave policies¹

The Reality—“Medical Leave” Not Working As Intended
The Family and Medical Leave Act has been the subject of contradictory U.S Department of Labor (DOL) opinion letters that have been in conflict with the original intent of the statute, resulting in confusion and problems for employers and employees alike. As a result, employers have struggled both to understand what constitutes a “serious health condition” as well as with the implications of unscheduled intermittent leave.   

While the family leave portions of the FMLA have caused few challenges for employers, the leave for an employee's own serious health condition has been problematic.  For example, in 1995 the DOL issued an opinion letter stating that the common cold, flu and non-migraine headaches were not serious health conditions (covered under medical leave)².  The following year the DOL issued another opinion letter stating that these maladies might be considered serious health conditions³.  As a result of these inconsistent interpretations, almost anything, after three days and a doctor’s visit, now qualifies as a serious medical condition.  Employers aren't sure if health problems like pink eye, ingrown toenails – even the common cold – will be considered by the regulators and courts to be "serious health conditions.

The "intermittent leave" regulations, coupled with the vague "serious health conditions" regulations, allow employees to characterize chronic, non-serious health conditions as FMLA leave.  This misuse of FMLA leave threatens the integrity of this important law for those employees who truly have serious health conditions.  The Act should be clarified so that it works to the benefit of those employees who need it most.

These confusing and contradictory regulations and interpretation letters have led to an explosion of costly and time consuming litigation.  The Labor Department’s FMLA regulations have been challenged in over 70 court decisions⁴ and even the U.S. Supreme Court has found one FMLA regulation to be "contrary to the Act's remedial design."

Finally, recent survey efforts have highlighted the challenges HR professionals and employers experience in administering the medical leave provisions of the FMLA.  According to the Society for Human Resource Management (SHRM) Weekly Surveys on November 7 and November 15, 2006:

• 51 percent of HR professionals have experienced challenges in administering/granting leave under the FMLA for an employee’s serious health condition.
• 47 percent of respondents cited challenges in granting FMLA leave for chronic conditions, versus 11 percent for a catastrophic event.
• Specific problems encountered due to employees taking FMLA leave as a result of a chronic condition included:
<»>69 percent:  Tracking intermittent leave
<»>66 percent:  Vague documentation of medical leave certification
<»>66 percent:  Chronic abuse of intermittent leave by employees
<»>66 percent:  Unsure about the legitimacy of leave requests

 
FMLA Actually Hurts Conscientious Employees
The greatest cost of the FMLA is the cost to employees themselves. The Report of the Commission on Leave, mandated by the Act, found that "by far the most prevalent method that employers use to cover work is to assign it temporarily to other coworkers (67%)⁵.  Similar results were reported in the Society for Human Resource Management 2003 Family and Medical Leave Act Survey report.  HR professionals responding to the survey suggested that “assigning work temporarily to other employees” was the most used method for attending to an FMLA employee’s workload.⁶  This means that employees who are not taking leave under the FMLA are being forced to absorb the extra workload from those who are.  As a result of the permissive and confusing FMLA regulations, increasingly, leave is being taken with little or no notice, requiring unscheduled overtime by coworkers.

The FMLA Solution
The National Coalition to Protect Family Leave has repeatedly urged the DOL and the United States Congress to strengthen the FMLA by clarifying the medical leave interpretations and other FMLA administrative complexities which are causing problems in the workplace.  The Coalition supports technical corrections through either regulations or legislation that will ensure implementation of the law consistent with the intent of Congress as expressed in the House Committee report.  These technical corrections include:

• restoring the meaning of "serious health condition" to the original Congressional intent;
• improving notification requirements to reduce work disruptions and shifting unwanted overtime to employees;
• streamlining record keeping; and
• allowing employers to offer a choice between FMLA benefits or paid sick-leave.

Furthermore, the Coalition believes that these issues need to be addressed before Congress considers expanding the Act.  As such, the Coalition strongly opposes any expansion of the original FMLA legislation.  Expanding a law that is not working properly will only exacerbate the problems that employees and employers are having under the law's misapplication.

¹ U.S. Congress Committee on Education and Labor, Family and Medical Leave Act of 1993, H.Rept. 103-8, February 2, 1993, p. 40

2 U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Family and Medical Leave Act Opinion Letter 57, April 7, 1995

³ U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Family and Medical Leave Act Opinion Letter 86, December 12, 1996

⁴ Spencer Fane Britt & Browne LLP, Reported Court Cases In Which The Validity Of An FMLA Regulation Has Been Challenged, November 2006

⁵ Commission on Family and Medical Leave, A Workable Balance:  Report to Congress on Family and Medical Leave Policies, April 1996

⁶ Society for Human Resource Management 2003 Family and Medical Leave Act Survey Report