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FEATURE STORY

Understanding the FMLA Wave of Change

As a business owner you’ve probably heard about the Family Medical Leave Act that was passed by Congress and signed into law by President Clinton in 1993. What you may not know is that there has been considerable and ongoing debate of late that may amend the law. This could mean bigger headaches resulting in increasing payroll and insurance payments for the small business owner. Since February of this year, Congress has been hearing testimony and taking comments on what type of changes should be implemented and the impact of change on both the economy and businesses alike.

The Family and Medical Leave Act signed into law after nearly 10 years of lobbying from family and labor groups such as the AFL-CIO. It provides eligible employees up to 12 weeks of job-protected leave for the serious illness of an employee or an immediate family member, or the birth or adoption of a child. Health insurance must also be continued.

Who is covered by FMLA?

• Employee must work at a covered employer — generally, an employer engaged in commerce or in any industry or activity affecting commerce that employs 50 or more employees.
• Employee must have worked for the employer for at least 12 months.
• Employee must have worked at least 1,250 hours during the 12-month period immediately before the start of the leave.
• Employee must work at a site where 50 or more employees are employed by the employer within 75 miles of that work site.
  
  Source: Department of Labor

Why change the law?

Previous political climate didn’t lend itself to FMLA consideration but a shift in Congress a newly elected Democratic Congress has given amendments new life in recent years. The Department of Labor prodded by such groups as the National Retail Federation, National Association of Manufacturers and the Chamber of Commerce has collected over 16,000 comments about a potential change to the law on its web site. Supporters of FLMA say while Labor appears to be in support of the law what may really happen is a restriction that will ultimately hurt employees. Business leaders and associations have mixed feelings the current law and potential changes. Some feel that the current law is too costly because employees can easily ‘take advantage’ by invoking it when they are late to work or want to leave early. A recent report by the women’s business Employment Policy Foundation said the productivity lost to FMLA leave cost employers $4.8 billion in potential profits during 2004 alone.

Others feel that the law is a necessity in order for families to truly come first in a time where they shouldn’t have to worry about losing their job to be with an ill family member. Lower income individuals are most at risk by dramatic changes to FMLA. Typically these individuals don’t have access to vacation, sick leave or even maternity leave putting them at greater risk for job loss and forcing them to make difficult choices between work and family.

According to a 177-nation survey by the Institute for Health and Social Policy at McGill University, "when it comes to ensuring decent working conditions for families, the latest research shows many U.S. public policies still lag dramatically behind all high-income countries, as well as many middle- and low-income countries." For example, 168 of the countries surveyed offer guaranteed paid leave to women in connection with childbirth. The U.S. does not, which leaves it in the ranks of Lesotho , Liberia , Papua New Guinea and Swaziland .

The Society of Human Resource Management (SHRM) represents approximately 210,000 members including a core of HR professionals who administer employee benefits including FMLA leave, launched a poll of 600 HR professionals on their experience with the FMLA. The survey found three major areas of concern:

• The definition of a ‘serious health condition’ should be increased from three to five consecutive business days. The ‘serious health condition’ should also be clarified.
• Employees should be required to provide advance notice of FMLA leave, whenever possible. This would give employers ample time to schedule a replacement, and especially important to small business owners where each employee fills a unique role and responsibility.
• Employees should be required to take FMLA leave in half-day increments. This will help to reduce the employer difficulty in tracking single hours or even half hours.

Where does Congress Stand?

Congress is reviewing these comments now and should announce its recommendations soon. The FMLA’s original author, Sen. Chris Dodd (D-CT) has proposed expanding FMLA to include a greater number of employers and to employees who have been affected by domestic violence. Even more importantly, Dodd recommends a partial- or fully-paid leave for at least six of the 12 weeks of the FMLA coverage. Under the current law, only employers with 50 or more employees would need to comply. If Dodd’s proposal were enacted, the law would be extended to employers with 25 or more employees. Sen. Dodd estimates this would provide FMLA coverage for 13 million workers.

On March 16, Sen. Edward Kennedy (D-MA) introduced legislation that would require companies with 15 or more employees to offer seven paid sick days of leave per year to care for their own medical needs or the needs of their family. Finally, Rep. Carolyn Maloney (D-NY) introduced a bill that would extend FMLA coverage to businesses with 25 employees or more, also allowing employees to take up to 24 hours of leave time per year to participate in academic activities with their children or to attend a family literacy training program.

Additional Changes proposed for FMLA include:

• Widening coverage to workplaces with fewer employees. The current threshold for private business is 50 employees, although some states have lower thresholds in their own FMLA laws.
• A more specific definition of “serious health condition.” At present, it’s an illness, injury, impairment, or physical or mental condition requiring in-patient care in a hospital or residential treatment facility, or one that keeps an employee off the job for 3 days or more, and also requires continuing treatment from a healthcare provider.
• Limiting FMLA coverage to serious health conditions that require more than 10 days off work, in effect cutting down the number of covered conditions, and forcing those employees who do take time to use it up more quickly.
• Allowing greater communication between employers and doctors to determine the full nature of an employee’s health condition and treatment.
• Increasing the minimum time an employee must take for intermittent leave. Some employees now take an hour or even minutes at a time, creating ongoing disruption of work flow, say affected employers.
• Adding to the reasons FMLA leave can be taken. Sen. Hillary Rodham Clinton (D-NY) has suggested allowing parents to attend conferences with their child’s teacher.

What’s Next?

It’s unclear if and when Congress will take any corrective action on FMLA. Changes to the current law have gained much momentum in recent years, but legislative dockets are filled with more pressing issues like reauthorization of the No Child Left Behind Act. To date no legislation presented has gained more than 30 cosponsors leaving any amendment falling short of full support.

While FMLA is a necessity toward protecting workers in times of great personal strife, the business community has little guidance regarding enforcement of FMLA’s regulations and better ways to monitor employees’ use of the policy. In fact, during the first ten years that FMLA was in effect, the DOL regulations were challenged 68 times in court decisions.

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