Employer groups take aim at part of medical-leave law

Employer groups are trying to persuade the Bush administration to restrict the illnesses that qualify under the Family and Medical Leave Act (FMLA) and make it less tempting for workers to take sporadic time off under the law.

Employer groups are trying to persuade the Bush administration to restrict the illnesses that qualify under the Family and Medical Leave Act (FMLA) and make it less tempting for workers to take sporadic time off under the law.

Passed in 1993, the FMLA requires businesses with at least 50 employees to give 12 weeks’ unpaid leave to workers for the birth or adoption of a child or in the case of their own or a close family member’s sickness.

Employers say they have no qualms with the portion of the law that allows employees leave to care for a new child.

Rather, they claim that weaknesses in the law and the regulations handed down since it was passed have spawned rampant abuse by shirkers and headaches for managers in charge of approving and tracking leave.

“This isn’t about taking away FMLA rights to mothers and newborns. But there are a lot of areas where there are challenges and we think it needs to be looked at,” the director of government affairs for the Society of Human Resource Management, Mike Aitken, said. The group is one of about 50 employer organizations, including the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce, that have formed the National Coalition to Protect Family Leave to petition the Department of Labor to change the FMLA.

More than 50 million Americans have taken advantage of FMLA protections in the 14 years since it was passed. But the business community has long opposed aspects of the law. Parts of the act have been litigated scores of times and stricken down by courts, including the Supreme Court.

This latest push by employers to modify the FMLA comes on the heels of a Department of Labor (DoL) request in December for public comment on the law and just after Sen. Chris Dodd (D-Conn.), one of its original architects, introduced a bill Feb. 1 to expand the act. His legislation would ensure six weeks’ paid leave under the FMLA, to be funded by the federal government, the employer and the employee.

Last month’s DoL request for comments on the FMLA sparked worries among proponents that the administration would water down the act.

“We have significant concerns that this is a first step in a process that will lead to a substantial weakening in the FMLA protections,” Jocelyn Samuels, vice president in charge of education and employment at the National Women’s Law Center, said.

The comment period ended on Friday, Feb. 16. The DoL said it would review the more than 100 comments filed in the coming weeks but said it wasn’t wedded to proposing any changes.

“The next step for us is to review the record. Whether that results in a rule or a proposed rule I do not know and it would be very premature to suggest that that will happen at this point,” the assistant secretary of the department’s Employment Standards Administration, Victoria Lipnic, insisted.

One major beef employers have with the law is a 1996 DoL regulation that qualifies a host of minor illness for FMLA protection that they believe should be addressed by companies’ regular sick leave policies.

Under the rule, earaches, upset stomachs or common colds meet the criteria for a “serious health condition” under the FMLA as long as the worker is incapacitated for at least three consecutive days and is following a treatment regimen, such as taking prescription drugs.

Another big gripe is unplanned, intermittent leave, which employers complain wreaks havoc on production schedules. Workers may use FMLA leave sporadically throughout the year and without advance warning as long as they have a doctor’s note on file certifying a chronic condition. The widespread use of such leave has fed the suspicion among employers that workers are abusing the system.

“It’s ‘Oh, I want to go fishing’ or ‘Oh, the Yankees are in town today,’” the director of human resources policy at the NAM, Jason Straczewski, said. He added that NAM’s members had no problem with workers taking intermittent leave for a serious medical condition or for scheduled treatment such as chemotherapy.

To crack down on any abuse of intermittent leave, employer groups want to increase the increments of time with which workers can take leave under FMLA. A DoL regulation currently forces businesses to account for leave “to the shortest period of time that the employer’s payroll system uses,” which can be as small as six minutes for some businesses.

Employers argue this invites absenteeism and tardiness. Increasing the increment “might require the individual to really think, ‘Is this really a situation that should prevent me from going to work?’” Aitken argued.

Employer groups also want the DoL to require workers to update their medical certification for intermittent leave periodically, permit managers to contact an employee’s doctor about a chronic condition and streamline the paperwork required to comply with the law.

They said they are trying to improve, rather than dismantle, the law.

“We are not trying to repeal this law. We are not trying to gut the regulations. What we are seeking is clarity and simplicity,” the director of labor law policy at the U.S. Chamber of Commerce, Marc Freedman, said.