June 2007 FMLA Survey Released By DOL

On June 28th the Department of Labor released its "report on comments from the public" regarding the Family Medical Leave Act. The report was based on 15,000 comments it received over a three-month period from workers, employers and policy experts in response to its Request for Information published in December of 2006.

The RFI asked the public to comment on their experiences with, and observations of, the Department's administration of the law and the effectiveness of the regulations.

The DOL report was "pleased to observe" that: "In the vast majority of cases, the FMLA is working as intended."

"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.

"There is broad consensus that family and medical leave is good for workers and their families, is in the public interest, and is good workplace policy. There are differing views on whether every provision of the law is being administered in accordance with the statute and with congressional intent. It is also evident from the comments that the FMLA has produced some unanticipated consequences in the workplace for both employees and employers."

The DOL report states that the overwhelming majority of comments submitted in response to the RFI addressed three primary topics:

(1) Gratitude from employees who have used family and medical leave and descriptions of how it allowed them to balance their work and family care responsibilities, particularly when they had their own serious health condition or were needed to care for a family member;

(2) A desire for expanded benefits-e.g., to provide more time off, to provide paid benefits, and to cover additional family members;

(3) Frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems in their workplaces as a result of one particular issue - unscheduled intermittent leave used by employees who have chronic health conditions.

"The success of the FMLA depends on smooth communication among all parties. To the extent that employees and employers become more adversarial in their dealings with each other over the use of FMLA leave, it may become harder for workers to take leave when they need it most. The Department hopes that this Report will further the discussion of these important issues and is grateful to all who participated in this information gathering process."

Key Problems: Leave, Certification, Definitions

   Unscheduled Intermittent Leave Problem

Unscheduled intermittent leave was reported to be the worst problem that employers commented on in their submissions to the DOL. According to the report this problem "may not have been fully anticipated."

Here are some words about this directly from the report:

"At the same time, a central defining theme in the comments involves an area that may not have been fully anticipated: The prevalence with which unscheduled intermittent FMLA leave would be taken in certain workplaces or work settings by individuals who have chronic health conditions. This is the single most serious area of friction between employers and employees seeking to use FMLA leave."

One of the problems in this area is that there is ambiguity regarding the minimum for blocks of time taken for FMLA leave:

"Regarding intermittent leave, the Act provides for the taking of leave in small blocks, or intermittently, but does not specify the minimum increment. 29 U.S.C. 2612(b). In its regulations, the Department rejected any minimum limitations on intermittent leave, citing the statute, and stating a concern that such limits would cause employees to take leave in greater amounts than necessary, and thus erode a worker's 12-week leave entitlement. 60 FR 2236."

More comments point to the commonplace nature of the problem of unscheduled intermittent leave:

"The Department also predicted initially that incidents of unscheduled intermittent leave would be unusual. 58 FR 31801."

"Fourteen years later, the comments indicate that unscheduled intermittent FMLA leave for chronic conditions has become commonplace and it is difficult for employers to determine or monitor employees' incapacity when the chronic condition does not involve any active, direct treatment or care by a health care provider (i.e., self-treatment by employees with chronic conditions such as asthma, diabetes, migraine headaches, and chronic back pain)."

And finally, further unintended consequences of FMLA regulations are that some employees are abusing the privilege of this leave in the following ways:

"Employers expressed frustration about what they perceive to be employees' ability to avoid promptly alerting their employers of their need to take unscheduled leave in situations when it is clearly practicable for them to do so. A common example cited by employers involves ignoring mandatory shift calling procedures even when the employee is fully able to comply, and then later reporting the absence as FMLA qualifying after-the-fact."

"Thus, some employers allege, employees may use FMLA:
(1) As a pretext for tardiness or to leave work early for reasons unrelated to a serious health condition,
(2) To obtain a preferred shift instead of the one assigned by the employer, or
(3) To convert a full-time position to a permanent part-time one. These employers believe the Department's regulatory interpretations have exacerbated this situation."

These comments all indicate how complicated the problem can be. No solutions to these problems were discussed, but the problems were duly noted.

To read this section of the report in its entirety you can click on this link, going to this section:

IV. Unscheduled Intermittent Leave
http://www.dol.gov/esa/whd/FMLA2007Report/Chapter4.pdf

   Medical Certification Problem

The medical certification process drew quite a lot of fire from employers in their comments.

Here is a segment from the report:

"Another area that generated significant comments is the current medical certification process. The Department recognizes that communication about medical conditions is essential to the smooth functioning of the FMLA in workplaces. However, none of the parties involved with the medical certification process- employers, employees, and health care providers-are happy with the current system."

"Employers, especially when it comes to intermittent leave use, seek predictability in attendance and are frustrated with medical certifications that do not provide meaningful guidance."

In response, the DOL notes the following:

"It is clear the Department has more work to do to further educate employees and employers regarding their rights and responsibilities under the law."

And finally, in the comments section of the report regarding the medical certification process we find this section:

"Both employers and employees expressed frustration with the medical certification process. As discussed below, employers generally expressed frustration with their ability to obtain complete and clear certifications. Employees expressed frustration with employers determining that a certification is incomplete but not informing the employee what additional information is necessary to satisfy the employer's concerns. Some commenters noted that these repeated requests for additional information are causing tension in the doctor/patient relationship. Overall, the comments make clear that the certification process is a significant source of friction between employees and employers: the two groups, however, attribute the source of the friction to very different causes."

To read this section of the report in its entirety you can click on this link, going to this section:

VI. The Medical Certification and Verification Process
http://www.dol.gov/esa/whd/FMLA2007Report/Chapter6.pdf

   Definition of Serious Health Condition

The regulatory definition of serious health condition is central to the FMLA because the primary reason that people take FMLA leave is to attend to their own or a family member's health needs.

The Act defines a serious health condition as "an illness, injury, impairment, or physical or mental condition that involves-(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

The legislative history of the Act states that "[w]ith respect to an employee, the term 'serious health condition' is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery." H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 28 (1993).

A common theme the Department heard from various parties was that the regulatory definition of serious health condition is vague and/or confusing.

A section of the report related to this states the following:

"Commenters often pointed to the language in section 825.114(c) regarding minor ailments as the primary source of definitional confusion. Whereas the first part of the regulatory definition of serious health condition in subparagraph (a)(2) provides objective standards for leave (irrespective of the person's medical diagnosis) in terms of "days" and "incapacity" and "health care provider" visits, this language in subparagraph (c) suggests the opposite: excluding common illnesses by diagnosis/name without regard to seriousness."

There are a number of examples of comments from employers in the report. To follow up more on this topic and read those comments you can click on the link at the end of this section to read the whole section of the report yourself.

And on the other side of the equation, the report notes the following:

"The Department also received many comments from employees and employee groups, however, who felt that the objective test is a good, clear test that is serving its intended purpose. "[T]he current regulations are crafted appropriately to provide guidance on what constitutes a serious health condition without imposing overly rigid criteria that could hinder the ability of workers to take leave when necessary." National Partnership for Women & Families, Doc. 10204A, at 7."

To read this section of the report in its entirety you can click on this link, going to this section:

III. Serious Health Condition
http://www.dol.gov/esa/whd/FMLA2007Report/Chapter3.pdf

Prospects for Change of FMLA

The Act hasn't been changed since it was enacted in 1993. The DOL and many in Congress seem to agree that it's time for an update.

Though it seems the FMLA is getting attention and some politicians have this high on their agenda, there seems to be common consensus that nothing much will happen about this in the next several years.

No legislation to amend the FMLA has picked up more than 30 cosponsors in either the House or the Senate.

Amending unscheduled leave in a rule-making process could require months or years. Other adjustments, such as revising the definition of a serious illness or redesigning the medical certification form, would be somewhat easier but also lengthy.

One person who is at the forefront of this issue happens to be running for President this year. Senator Chris Dodd is one of the original authors of FMLA and (along with Senator Ted Stevens from Alaska) may offer a proposal that would create an insurance fund to allow 6 weeks of FMLA leave to be paid.

Under current law, the FMLA applies only to employers with 50 or more employees. If Senator Dodd's proposal were to pass, the law would be extended to employers with 25 or more employees - providing FMLA coverage for 13 million additional workers.

Similar legislation is pending in the House. Representative Carolyn Maloney has also introduced a bill that would extend FMLA coverage to businesses with 25 employees or more. It would also allow employees to take up to 24 hours of leave time per year to participate in academic activities at their child's school or to attend a family literacy training program.

So while there is action pending for additional legislation, there doesn't seem to be much prospect of immediate change in the current version of the FMLA.

SHRM Follows Up With Its Own Survey

In July the Society for Human Resource Management released its own survey. The information below was taken from their press release relating to this survey. To read the full press release you can click here.

"Nearly 40 percent of HR professionals report that confusion over FMLA implementation has led to illegitimate leave being granted, according to a report released in July by the Society for Human Resource Management (SHRM)."

"SHRM surveyed 521 respondents on FMLA-related compliance issues. Respondents report that there have been more requests to take FMLA leave in the last five years compared with 10 years ago, particularly for episodic conditions (ongoing injuries, ongoing illnesses, and/or non-life threatening conditions)."

Key findings in the SHRM study include:

* Two of the most challenging FMLA-related activities identified by organizations are tracking/administering intermittent FMLA leave and determining the overall costs incurred while complying with the requirements of the FMLA.

* In an open comment portion of the study, many HR professionals noted that the timing of intermittent FMLA leave requests (e.g. around weekends, holidays, pleasant weather) raised suspicions of abuse.

Source: http://www.shrm.org/press_published/CMS_022471.asp#P-4_0

From the Report: Details on FMLA

For more information on details relating to the FMLA we have included the information below. It was taken directly from the June 2007 DOL Report on FMLA:

Background: What the Law Covers

The Family and Medical Leave Act of 1993, Public Law 103-3, 107 Stat. 6 (29 U.S.C. 2601 et seq.) (the ''FMLA'' or the ''Act'') was enacted on February 5, 1993 and became effective on August 5, 1993 for most covered employers. The FMLA entitles eligible employees of covered employers to take up to a total of twelve weeks of unpaid leave during a twelve month period for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly-placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when the employee is unable to work due to the employee's own serious health condition. See 29 U.S.C. 2612.

The twelve weeks of leave may be taken in a block, or, under certain circumstances, intermittently or on a reduced leave schedule. Id. When taken intermittently, the Department's regulations provide that leave may be taken in the shortest increment of time the employer's payroll system uses to account for absences or use of leave, provided it is one hour or less. 29 CFR 825.203(d).

Employers covered by the law must maintain for the employee any preexisting group health coverage during the leave period and, once the leave period has concluded, reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay, and other terms and conditions of employment. See 29 U.S.C. 2614. If an employee believes that his or her FMLA rights have been violated, the employee may file a complaint with the Department of Labor (''Department'') or file a private lawsuit in federal or state court.

If the employer has violated an employee's FMLA rights, the employee is entitled to reimbursement for any monetary loss incurred, equitable relief as appropriate, interest, attorneys' fees, expert witness fees, and court costs. Liquidated damages also may be awarded. See 29 U.S.C. 2617.

Who the Law Covers

The law generally covers employers with 50 or more employees, and employees must have worked for the employer for 12 months and have 1,250 hours of service during the previous year to be eligible for leave.

Based on 2005 data, the latest year for which data was available the time the Request for Information was published, the Department estimates that:

• There were an estimated 94.4 million workers in establishments covered by the FMLA regulations,
• There were about 76.1 million workers in covered establishments who met the FMLA's requirements for eligibility, and
• Between 8.0 percent and 17.1 percent of covered and eligible workers (or between 6.1 million and 13.0 million workers) took FMLA leave in 2005.
• Nearly one-quarter of all employees who took FMLA leave took at least some of it intermittently.

Recent information submitted to the Department also suggests that FMLA awareness was higher in 2005 than in prior years. This information supports the Department's estimate of increased FMLA usage since prior studies of FMLA.

Links to Reports and Other Articles

DOL Webpage URL for the report: The Family and Medical Leave Act: A Report on the Request for Information

DOL FMLA Report Section III. Serious Health Condition

DOL FMLA Report Section IV. Unscheduled Intermittent Leave

DOL FMLA Report Section VI. The Medical Certification and Verification Process

SHRM Press Release: SHRM Study Highlights FMLA's Challenges

Braun Consulting Group Article: Feingold Amendment Would Have Expanded FMLA Reach to Military (Winter 2003)

Braun Consulting Group Article: FMLA: "Serious Health Condition" Being Redefined. (Summer 2001)