The Family Medical Leave Act Revisited

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While the DOL has not yet revealed any plans to change the law, lobbyists are battling to get legislators on their side. In one corner are family and labor advocacy organizations led by the National Partnership for Women and Families (NPWF) (formerly the National Women's Defense Fund), the group who drafted FMLA. Senators Edward Kennedy of Massachusetts, Hilary Clinton of New York, Christopher Dodd of Connecticut and U.S. House Representative Pete Stark are all behind the cause as well. In the other corner are business groups such as the U.S. Chamber of Commerce and the Society for Human Resource Management (SHRM). Supporters fear that hard-won protections will be stripped away, affecting millions of workers. Business groups argue that Congress needs to fine-tune the language, ease the tracking burden on businesses, and safeguard it from abuse. Business groups also say that FMLA's requirements lead to unstable work conditions, mask chronic tardiness and absenteeism, and cost businesses billions each year.

FMLA Today

Nearly 10 years of lobbying paid off just 16 days after Clinton took office, when the new president signed FMLA into law. Although FMLA was one of the weaker versions of the bill (providing shorter periods of leave and covering fewer workers), it was championed as finally recognizing the needs of workers to balance their work responsibilities with their family lives. The law came into the spotlight in 2002 when a Supreme Court ruling required the DOL to change a provision that dealt with how employers notify employees about implementation of the law. This spurred a closer examination of how FMLA is currently written, as well as intense debate. FMLA provides job protection to workers who must take time off from work to care for themselves or a sick child, spouse, or parent. The act also protects those who need time off from work to care for a newborn child or participate in an adoption or foster care placement. The FMLA mandates that these workers be allowed to return to their jobs, or equivalent jobs. So long as the employee works for at least 30 days afterward, employers must continue to provide health benefits. The law allows for 12 weeks of unpaid leave per 12-month period. The leave can be taken in one 12-week leave, blocks of time as small as one hour, or in any combination. FMLA only applies to companies with 50 or more employees located within a 75-mile radius. All public agencies and schools must comply regardless of their size.

The Price of FMLA

In 2004, the act rang up a $21-billion tab, according to a survey from the Employment Policy Foundation (EPF), a Washington, D.C. research group. After collecting data from the employers of more than 500,000 workers, the EPF estimated the costs of lost productivity ($4.8 billion), continuation of benefits ($5.9 billion), and net replacement costs ($10.3 billion) to calculate the grand total. EPF also discovered that 14.5 percent of employees took leave last year. Thirty-five percent took leave more than once. And nearly 50 percent of those who took FMLA leave did not provide prior notice. The SHRM conducted its own survey, which revealed the burden to other employees. Ninety-two percent of organizations assign work to other employees to make up for the shortfall created during a coworker's FMLAauthorized absence. Seventy-one percent of employers say they also hire temporary replacements, and 23 percent resort to asking employees to work at home. EPF found that 30 percent of all FMLA leave is less than five days in length. Twenty percent was for one day or less. 'Intermittent leave? was intended to accommodate employees who require regular, scheduled medical appointments, such as physical therapy, cancer treatments, or kidney dialysis. However, employers assert that the definition is so loose that employees are seeking coverage for unscheduled absences due to colds, flu, or headaches. Any employee who files a claim for protection for an unscheduled absence under FMLA within two days after going back to work can shield him or herself from censure. Since intermittent leave may be as little as a few minutes, human resources departments face the administrative burden of meticulously tracking time according to DOL's standards. Opponents argue that these short bursts of leave time could mask a tardiness problem. For these reasons, critics say, the FMLA is left wide open for abuse.

A Bold Act of Protection

The backbone of the FMLA is the assertion that workers should not have to choose between having a job and their health or their families. With about 46 percent of American workers receiving no paid sick days, FMLA is the only option for millions should they or their loved ones become ill. The NPWF and other FMLA advocates say that opponents of the law do not want to fine-tune the language but want an overhaul. They fear that once changes begin, the FMLA will be stripped to the detriment of both workers and businesses. For example, they fear limitation of the kinds of medical conditions covered, which will force employees to take even more intermittent leaves and for longer periods of time. An employee who only needs an hour a week for radiation treatment might be required to use up to four hours. Thus, employees would use up their time too quickly. Advocates also fear that efforts to redefine what qualifies as a serious illness could go too far, leaving workers who need coverage unable to get it. Alterations to FMLA could have a devastating affect on families, says the NPWF. Research from the Harvard School of Public Health indicated that the education and health of children improves when their parents are able to take paid sick leave to care for them. A nationally funded study in Canada revealed that extended time off for parents with newborns is associated with the successful social and cognitive development of children. Advocacy groups also assert that FMLA is being unfairly targeted, and that abuse is rare. As Debra Ness, president of NPWF told the Seattle-Post Intelligencer, 'If you have an employee who takes sick leave every Friday afternoon, that's a management problem, not an FMLA problem.? Further, a DOL study found that for 80 percent of surveyed employers, FMLA had a neutral or positive effect on their profits and productivity. Eighty-five percent of employees reported either neutral or positive effects when their coworkers took leave. This data rebuts the notion that employers and employees are negatively affected by FMLA as it is currently written.

States Make a Statement

As the federal government continues its review of FMLA, states have created their own answer ' expanding its provisions to providing paid leave. Twenty-one states as well as Washington D.C. introduced paid leave bills in 2004. In July 2004, California became the first state to establish a paid family leave program. It provides for up to six weeks of paid leave per year for a new child ' through birth, adoption or foster care ' or seriously ill family member. The program, which enables employees to receive up to 55 percent of wages, costs California $380 million a year. Last June, California Congressman Pete Stark presented his state's paid family leave program to Congress as a model for federal reform. The Paid Family and Medical Leave Act would provide for 12 weeks of leave and add a provision for leave for employees who need to cope with their own short-term disability. The House has yet to comment, leaving the debate roaring. In a little over a decade, the FMLA has revamped how we work and care for ourselves and our families, but not without debate and controversy. If the federal government follows the lead of the states, more changes are to come. Balancing work and life in the future could have a very different face than it does today.

Written by: Bright Horizons Blog Editor

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