The Family and Medical Leave Act has been with us since 1993. In 2005 it covered about 76 million workers, with as many as 13 million making use of benefits under the act. Limited to employers with 50 or more employees, and to employees with at least one year of service, the act provides unpaid leave for birth, adoption and serious health conditions of the employee or an immediate family member. Employers essentially had to hold the job open for three months and continue to pay the employer portion of health insurance. If employees were absent for more than three months, the employer could move ahead with termination (provided, of course, they followed their own personnel procedures).
The U.S. Department of Labor recently issued a detailed analysis of FMLA (the executive summary can be found here). The Department finds that, in general, the law is working as it was designed to work. As with any human attempt to engineer the working world, there have been unintended consequences and quite a bit of ambiguity. Indeed, in this detailed report, DOL seems to be establishing an agenda for future legislative and regulatory adjustments.
No Retroactive Notice
One of the most controversial aspects of the law was the requirement that employers explicitly designate exactly when an employee was using the alloted three months of annual FMLA eligibility. The regulations stipulated that the designation could not be retroactive. In our workers compensation consulting, we frequently found that employers had failed to designate time lost due to workplace injury as "FMLA Leave." Even if an employee had been out for three or four months, failure to make a designation at the time of the injury meant that three additional months of eligibility had to be tacked onto the time already lost. This was a painful lesson in reading the fine print in federal regulations.
This onerous regulation made it all the way to the U.S. Supreme Court, where it was struck down (Ragsdale v. Wolverine). Ragsdale had been out of work due to cancer for 30 weeks. Because her (generous and accommodating) employer had failed to designate her 30 week leave as FMLA eligible, she sought an additional three months protection. The Supremes decided otherwise. "We hold that the regulation is contrary to the Act and beyond the Secretary of Labor’s authority."
Fine Tuning or Retooling?
DOL has zeroed in on seven areas of FMLA ambiguity. It's a compelling list:
- How serious is "serious"? (Which medical conditions reach the level of "serious" and which do not?)
- what does "intermittant" leave mean and how long should it go on? (Employers are required to track leave intervals as small as one hour. This can be extremely disruptive of scheduling; for example, an employee may request several hours off, several times a week for a doctor's appointment. This absence wreaks havoc in production lines and in time sensitive industries such as transportation.)
- What are the rules surrounding unforeseeable leave? (Employees must provide prior notice to the employer of any "foreseeable" need for leave. Sometimes the employer receives no notice at all. Where does "foreseeable" end and "unforeseeable" begin?)
- How much information can an employer require before approving leave? (It's hard to determine if a condition is "serious" if the employer's questions violate the confidentiality requirements of HIPAA.)
- What are an employee's responsibilities under FMLA?
- What workplace rules may an employer actually enforce?
- How does FMLA interact with the ADA?
Interesting questions, for sure. Given Washington's hyper-political atmosphere, it will be fascinating to see how hard DOL pushes for legislative adjustments to the original act - especially with a Democratic controlled Congress. As the administration seeks to help employers by softening some of FMLA's hard edges, there will be a countervailing pressure from the left to make the act even edgier: there is talk of dropping the threshold of covered employers from 50 employees down to 25 and requiring that employees be paid while on eligible leave. In case you haven't noticed, we live in interesting times.