Outten & Golden: Empowering Employees in the Workplace

Will FMLA Changes Squeak By in this Administration?

April 10th, 2008 | Paula Brantner

One of the workplace priorities for the business community during the Bush Administration has been to scale back the Family and Medical Leave Act (FMLA). However, in the waning days of the administration, there still have not been significant changes, which has been a source of frustration to some. There is now a last-ditch effort to move forward some business-friendly changes to the FMLA, while there is still the ability to do so, should a Democratic candidate be elected President in November. As you can imagine, most of the “clarifying” changes attempt to tilt the balance in the employer’s direction. Pro-worker groups are mobilizing to stop the worst of the changes from taking effect, by soliciting comments by the end of the comment period on April 11.

After over ten years of intensive lobbying, the FMLA was the first bill signed by the Clinton Administration in 1993. It was hailed as a significant advancement for workers, and has been relied upon by many thousands of workers each year since its enactment. Although the leave permitted by the FMLA is unpaid, which means that many workers who would qualify are not able to take it for financial reasons, having the FMLA in place has protected an untold number of jobs where employers otherwise would have fired workers who prioritize their family over their jobs, or who exhaust the sick leave they have been given.

However, the business community has long resisted what they consider some of the more burdensome aspects of administering FMLA leave. Consistently high on their target list has been what is known as “intermittent leave.” The 12 consecutive weeks of leave permitted by the FMLA is in some cases not necessary, and indeed not adequate, to protect workers with chronic illnesses or complicated family care needs.

For example, some workers need a high number of doctors’ appointments to monitor their condition, while others have ongoing treatments such as chemotherapy or physical therapy. Aside from the time these appointments take during the work day, they are able to work, and quickly exhausting their leave in 12 weeks would leave them unprotected. Therefore, the FMLA currently permits leave to be taken in smaller increments.

Although workers who need intermittent leave have found that provision incredibly helpful in preventing their leave from being quickly exhausted and in preserving their job status over the long haul, the business community has frequently claimed that this provision is the most ripe for abuse by employees. They claim that workers who use intermittent leave make scheduling difficult, and sometimes use the intermittent leave provision to avoid discipline for unscheduled absences. They also claim that it is difficult and burdensome for payroll administrators to track
accurately.

Another area where employers claim difficulty has been in ascertaining from an employee’s doctor the nature of the illness that triggers the leave request, and whether it qualifies as a serious health condition. The law currently limits employers from communicating directly with an employee’s doctor, to prevent an invasion of the employee’s privacy, and also because employers are not medical professionals, and therefore not competent to make diagnostic conclusions based upon the information provided by the patient’s doctor. That has not prevented some employers from trying to get information more directly than the law allows, and from pushing to relax the standard that prohibits direct communication.

Over the last several years, pro-worker advocates have been waiting for the other shoe to drop. It has been rumored for a long time that there would be significant changes to the FMLA that would make it less employee-friendly, and tilt the law more in the employer’s direction. However, it has taken a long time for changes to be proposed. In December 2007, the Department of Labor, without actually proposing any changes, solicited comments about how the law was working, and received a wide range of comments from employer and employee groups.

Since the intermittent leave and medical privacy provisions were high on the business community’s list, many of the comments focused specifically on those provisions. However, after the comments were received, a final report issued in June 2007 reflected the Labor Department’s decision not to propose major changes at that time. Employee advocates had dodged a bullet, but not for long.

On February 11, 2008, in a Notice of Proposed Rulemaking, the Department of Labor published its intentions to make changes to the FMLA, triggering a 60-day comment period ending April 11. As expected, provisions regarding intermittent leave and communication between doctors and employers were on the list of proposed changes. In my next post, I will cover some of the proposed changes in more detail.

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