Testimony of
Dixie Dugan, PHR, Human Resource Coordinator
Cardinal Service Management, Inc., New Castle, IN

Regarding
"Is the Department of Labor Regulating the Public Through the Backdoor?"

On February 15, 2000, Before the
Committee on Government Reform
Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs
U.S. House of Representatives,
Washington, DC 20515

Good afternoon Mr. Chairman and members of the Subcommittee.

I am Dixie Dugan, PHR (certified as a Professional in Human Resources), Human Resource Coordinator for Cardinal Service Management, Inc. in New Castle, Indiana. We are a small, 175 employee, private, for-profit corporation located in four counties in east central Indiana. Our services include group homes and supported living apartments. We assist and support individuals with developmental disabilities such as mental retardation. Of our 175 employees, 144 are direct contact staff. Our direct contact staff provides supervision and training for the individuals served 24 hours a day, 365 days a year.

I fully support the original intention of the Family and Medical Leave Act to protect the employee's job when serious health matters prevent them from working. When circumstances such as the birth or adoption of a child occur, the last thing that parents want to worry about is job security. In the case of serious medical conditions for either the employee or their immediate family member, it is equally important to have sufficient time to recover or assist with the care of a family member.

Personally, I utilized the Family and Medical Leave Act during the last few months of my mother's terminal cancer. Because of that availability I was able to take her to necessary treatments; assist in taking care of her at home as well as spending precious moments with her in the hospital and nursing home. My sisters and I shared this responsibility without fear of losing our jobs. This is not a choice I would want anyone to have to face.

Cardinal Service Management provided generous paid leave benefits to accommodate our employees before the law was enacted. Especially in this time of a tight labor market, we have to be concerned with meeting the needs of all of our employees. We have every interest in following existing laws but hope that some clarification and definition of the Department of Labor's "serious health condition" interpretations will allow us to do so within the letter of the law.

I am glad that the FMLA is here to stay, but the Department of Labor's regulations and interpretations have broadened the Act and made compliance difficult. We are concerned that DOL opinion letters are l) not readily available to all employers and 2) going beyond the original intent of the law.

In my position as Human Resource Coordinator, I am responsible for informing our employees of this protection, training our supervisors to identify possible qualifying events and for making the final determination as to whether the event qualifies under the law. I am also responsible for coordinating this request with other laws such as the Americans with Disabilities Act and workers' compensation laws as well as our own company's leave policies.

The aspect of determining whether the event is a "serious health condition" under the FMLA has been extremely difficult for our company. In fact, up to this point we have felt compelled to approve all requests as long as there is a physician willing to complete the certification form. The Department of Labor places the burden of designating whether the absence is covered by the FMLA on the employer. Employers must notify employees that leave will be counted toward FMLA leave within just two business days. Additionally, the medical certification process required by the Department of Labor for employees and their family members is cumbersome. I have attached this form to my statement (Attachment 1). Under the Department of Labor's regulations, a certification form is the only way that the employer can verify the leave. The employer cannot call and speak to the doctor or caregiver.

Since we are responsible for providing direct supervision and support to individuals not able to live independently, we must have staff on duty. It is not merely a matter of saving the work until they return or delegating out the critical duties. Someone must fill that shift.

When employees are legitimately on leave we find a way to cover for them; however, under DOL opinion letters unscheduled and unplanned absences and illegitimate leave hurts us. They threaten our ability to serve our clients who are counting on us to be there 24 hours a day. We share this dilemma with many industries where unscheduled and unplanned absences can affect customers and coworkers.

While we are in no means implying that we do not support the original FMLA, we are concerned about the increased work load for coworkers when this federally protected leave is utilized for minor illnesses or vague symptoms that should not rightly be covered by the FMLA.

I have found that the Department of Labor's FMLA implementing regulations and opinion letters are overly broad and confusing. I cannot imagine that Congress intended this when the FMLA was passed. When Congress passed the original FMLA, it was supposed to be "serious" health condition leave, not a national sick leave program or to cover brief conditions. However, those types of conditions became covered when the Department issued its regulations and opinion letters.

One year the Department of Labor said that the cold, the flu and non-migraine headaches were not serious health conditions. The next year, they said that they could be. This has been very confusing for us, as we have tried to comply with the law. These opinion letters are attached to my statement (Attachment 2 and Attachment 3).

When employees request federally protected FMLA "serious health condition" leave for minor illnesses such as headaches and strep throat, this type of misapplication has a direct impact on the morale of those expected to carry the work load in the employee's absence. Additionally, plaintiff's attorneys and unions have used ambiguities in the Department's interpretations to game the system. FMLA misapplications under the Labor Department's interpretations effect operating costs and quality of care. We certainly will not compromise our clients' care.

In closing, I would like to respectfully request that the Department of Labor revise its opinion letters and implementing regulations to restore the FMLA to its original Congressional intent so that it effectively helps those who need it.

I would like to thank the Subcommittee for the opportunity to express the concerns of companies who are trying in good faith to comply with the FMLA, but have been perplexed by the Labor Department's interpretations. This is particularly difficult for small businesses and providers of essential services, such as health care. Thank you for the opportunity to share my experiences and concerns.