News & Information

 

FEATURED PRODUCT

U.S. Master™ Wage-Hour Guide, 2009 Edition
Presents a first approach to the broad and complex controls under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and other statutes regulating employee wages and hours.

Learn More »

LABOR & EMPLOYMENT LAW — 4/14/08

House subcommittee hears testimony on proposed FMLA rule changes, paid leave

"Fifteen years ago, Congress recognized that maintaining a careful balance between the legitimate rights of employees and employers in the workplace was the key to making the FMLA a success," said Victoria A. Lipnic, assistant secretary of the Employment Standards Administration, Department of Labor. Lipnic testified on April 10 before a hearing of the House Subcommittee on Workforce Protections, Committee on Education and Labor.

"Today, after 15 years of experience in administering and enforcing the FMLA, the Department is pleased to report that the FMLA is generally working well in the majority of cases and has succeeded in allowing working men and women to better balance family needs and work responsibilities."

Testifying in support of the Labor Department's recently proposed FMLA rule changes, though, Lipnic continued: "The Department also knows that the FMLA has not worked well in every case.. It is time to make targeted changes to the current FMLA regulations, and, at the same time, implement the new law providing leave for the families of military servicemembers."

Intermittent leave is vexing. Brenda Cossette, SPHR, human resources director for the City of Fergus Falls, MN, testified that intermittent leave as defined in the FMLA regulations "has resulted in numerous issues related to the management of absenteeism in the workplace." Cossette testified on behalf of the Society for Human Resources Management (SHRM). She has contended with the challenge of administering intermittent leave for employers and also has faced the need to take intermittent leave for her own serious health condition.

"The most common challenges HR professionals encounter in administering medical leave, for example, are instances in which an employee is certified for a chronic condition and the health care professional has indicated on the FMLA certification form that intermittent leave is needed for the employee to seek treatments for the condition. This certification in effect grants an employee open-ended leave, allowing leave to be taken in unpredictable, unscheduled, small increments of time. The ability of employees to take unscheduled intermittent leave in the smallest time units that the employer uses, often one-tenth of an hour or six minutes, means that employees can rely on this provision to cover habitual tardiness.

"While serious health conditions may well require leave to be taken on an intermittent basis, limited tools are available to employers in order to determine when the leave is in fact legitimate. As a result, 39 percent of HR professionals responding to the 2007 SHRM FMLA Survey Report indicated that they granted FMLA leave for requests that they perceived to be illegitimate.

"While SHRM appreciates a number of the [rule] changes proposed by the DOL, particularly the medical certification process, the Society believes the proposal fell short in two key areas. The proposed regulation fails to significantly improve the definition of a 'serious health condition,' and there still are no meaningful tools available for employers to effectively manage misuse of unscheduled intermittent leave or to address many of the unintended consequences of the existing regulations.

"Despite these shortcomings," Cossette concluded, "SHRM believes this regulatory action is an important step toward restoring the balance intended by Congress between employers' business needs and employees' need for time to attend to important family and medical issues. After all, the original purpose of the FMLA, as envisioned by Congress, will never be fully realized until both the employee and employer communities feel comfortable in their determination that an employee is rightly entitled to FMLA leave."

Employee perspective. While the FMLA has provided millions of Americans time off from work to care for a newborn or a sick relative, improvements are needed to ensure that more workers are able to take advantage of the law's protections, other witnesses told the subcommittee. Witnesses who spoke on behalf of employees suggested the proposed DOL rule changes ran counter to this goal.

Debra Ness, president of the National Partnership for Women and Families, said the proposed changes erode some basic protections of FMLA. "The proposed changes upset the careful balance struck by the FMLA between the needs of employers and workers to favor the employers," Ness said. "If these regulations are enacted, workers will find that they must give more notice, more information, have more medical examinations, and respond to employer requirements in shorter time frames."

Airline workers miss out. "Allowing an individual to take up to 12 weeks of unpaid leave in order to care for themselves or a family member during an illness or injury, knowing that they will have a job to return to, has provided peace of mind for many," said Jennifer Hunt, a flight attendant. "However, I and thousands of other full time, working flight attendants in this country have unfortunately been unable to take full advantage of this benefit."

Airline attendants and pilots generally cannot qualify for FMLA leave because the calculation to qualify for leave only takes into consideration the time they spend working a flight. The calculations do not consider time between flights, such as overnights and layovers or time on reserve or "stand-by" status, even though these periods are based on company scheduling and a worker is away from home. In addition, pilot flight hour times are capped at 1,000 per year by federal regulations. These factors make it impossible for most flight attendants and pilots to accumulate the hours necessary to qualify for FMLA.

The Airline Flight Crew Technical Corrections Act (H.R. 2744), introduced by Rep. Tim Bishop (D-NY), would correct this problem by allowing full-time flight attendants or other crew members to be eligible for FMLA protections.

Paid leave next? "Millions of workers have been able to utilize leave to care for the birth or adoption of a child, to care for a sick child or parent, or to care for their own serious medical condition," said Rep. Lynn Woolsey (D-CA), chair of the subcommittee. "But, at the current time, we lag far behind other countries in providing family-friendly policies, such as paid leave, to our workers."

In a recent study of over 170 countries, the US was found to be one of only four countries that does not guarantee paid leave for new mothers. The other three are Papua New Guinea, Swaziland and Liberia. In addition, of the 20 most competitive economies in the world, the US is the only one that does not require businesses to provide paid sick days for its workers.

Chante Lasco, a recent new mother, testified that she found the protections of FMLA helpful, but limited. "When I first found out I was pregnant and inquired about taking leave, I was surprised to learn that such leave is totally unpaid," Lasco said. "I managed to get a few of the 12 weeks off paid, but while I was not being paid, the mortgage still had to be paid, the utilities still had to be paid, and my huge student loans from law school still had to be paid, on top of all the new baby-related costs."

Woolsey has proposed legislation designed to encourage family-friendly workplaces that would, among other incentives, guarantee paid leave and expand eligibility for family and medical leave.

"American families will tell you employment policies have not kept pace with the changing needs of the workforce in this country," said former Rep. Pat Schroeder, one of the original authors of FMLA. "Juggling work and family is going to be essential for almost every American family in the global economy we live in."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

Visit our News Library to read more news stories.