Family Leave Act Regs in Flux

Employment attorneys and lobbying groups across the country are debating possible changes to the Family and Medical Leave Act regulations – and plaintiffs’ and defense groups are deeply divided as to what, if any, changes are needed.

Business groups want to make it harder for employees to qualify as having a “serious health condition” covered by the act, as well as require employees to take leave in longer increments.

Michael Eastman, director of labor law policy for the U.S. Chamber of Commerce, said, “The problems that we would like addressed primarily deal with tools employers should have to get at the small but significant percentage of the workplace that uses the regs to cover for chronic tardiness and absence.”

Plaintiffs’ lawyers and employee interest groups contend that the current regulations work well to provide needed leave for employees. If anything, they would like to see the regulations applied to more workers.

Deborah Cuevas Hill, policy counsel for the National Partnership for Women and Families in Washington, said, “FMLA works well. 50 million Americans have benefits. The real problem is that 40 percent of working men and women are not covered by FMLA” because they work for companies with fewer than 50 workers or don’t work full time.

The Department of Labor is required to issue some changes as a result of a 2002 U.S. Supreme Court decision striking down an FMLA regulation that says if an employer doesn’t specifically tell an employee that leave will be treated as FMLA leave, the leave doesn’t count against the employee’s 12-week statutory allotment. (Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81).

That decision only requires the department to change the notice requirement. However, employers and business groups are hoping the DOL will take this opportunity to alter the regs to a greater degree.

“Everyone expects any such rewriting will go well beyond the issue directly addressed in Ragsdale,” said Peter A. Susser, an FMLA expert based in the Washington, D.C. office of Littler Mendelson.

The DOL first promised to issue a proposal in March, then by the end of May. However, interested parties are still waiting to see what those regs will say.

“March and May came and went, and there still are not any regs,” said Hill. “We just know it’s on their agenda.”

Patricia Shiu, a San Francisco attorney who is a member of the National Employment Lawyers Association task force that will respond to the changes when they are proposed, said, “Lots of us are very interested in participating in a regulatory process and providing comment to the department.”

NELA has joined the National Partnership for Women and Families in a larger coalition to support the FMLA as it is currently enforced. Business groups have also joined together to support certain changes to the regulations.

There are two main areas of debate:

• Definition of ‘Serious Health Condition’

Under the current FMLA regs, a “serious health condition” that warrants covered leave is an illness requiring leave of three days or more. A “serious health condition” is further defined as an injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential care facility or continuing treatment by a health care provider.

According to Sarah F. Pierce, manager of employment legislation for the Society for Human Resources Management in Washington, “the definition of serious health condition needs to be clarified. It is murky and has been watered down by Department of Labor opinion letters and almost 70 judicial opinions.”

Business groups argue that the baseline length of time should be extended to 10 days.

It’s difficult for employer, said Pierce, that “anything after three days with a note from a doctor and some follow-up is [essentially] covered. Does that rise to the level of truly serious as Congress intended in 1992?”

But Linda Meric, national director of 9-to-5, the National Association of Working Women, which is based in Milwaukee, said that raising the threshold to 10 days would mean much fewer absences would be covered.

“Looking at previous and current usage of family and medical leave, about half of workers that have taken leave have taken leave of 10 days or less,” she said.

Eastman said he hopes the Labor Department provides more examples of what constitutes a “serious” health condition.

“For example, I don’t think cold or flu should be covered, but if it develops into pneumonia, maybe it should be covered,” he said. “There needs to be more guideposts for employers as to what is a fairly minor illness.”

But Shiu, who works at the Legal Aid Society-Employment Law Center, complained that the definition of serious health condition isn’t the problem.

“The problem is employers don’t use the medical certification process written into the regs” to confirm employees’ need to take covered leave, she said.

Through this process, said Shiu, an employer can request detailed information about an employee’s condition and leave requirements. The first certification comes from the employee’s doctor. A second certification may be obtained from a doctor of the employer’s choosing. If the employee demands a third certification from another doctor, that one is binding, she said.

• Intermittent Leave

Under the current regulations, workers can take leave under FMLA in the smallest increments their company uses to track employee time.

“If someone needs radiation therapy he can be back at work within a few hours, a half an hour or an hour, and the fact employees can take intermittent leave allows necessary treatments, and doesn’t force them to be out of work,” said Hill.

Meric said short leave times are needed for many chronic conditions and treatments, including asthma, prenatal care, chemotherapy and physical therapy.

But some business groups argue that short increments of leave – which can be as little as six to 10 minutes in duration – are difficult to account for administratively. They suggest that the department alter the regs to require leave be taken in at least half-day increments.

“I would put this change near the top of the wish list of the business community,” said Susser.

Hill said this would “weaken the FMLA” because “if someone needed to be out of work for an hour or two for treatment, he would lose a half day of pay and use up his leave time more quickly.”

Employers also complain that the short leave option allows employees to falsely claim they are consistently late for a medical reason.

Short-leave increments are used as “an excuse to avoid consequences of attendance policies and tardiness penalties,” said Susser. “It is common for employers to have to scramble to have someone fill in, and with more and more employers leanly staffed, it becomes more and more difficult.”

Pierce agreed.

“If an employee isn’t coming in until 10 a.m. every morning because her migraine has flared up … there is very little the employer can do to talk to employees to discuss whether they are using the leave legitimately,” she said.

Hill noted that if an employer believes an employee is lying about an illness it can ask for up to three medical certifications from doctors confirming the condition and the need for covered leave.

Eastman pointed out, however, that these certifications can only be requested “periodically,” and the fact that they cannot be requested for every absence makes it difficult for employers to be sure leave is being used honestly.

“It would be nice if there were more communications allowed with the health care provider, so chronic leave can be managed at an earlier level before it becomes severe abuse of the system,” he said.

Questions or comments can be directed to the writer at [email protected].