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U.S. Labor Dept. draws battle lines in the great FMLA fight

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in FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

Put in HR Weekly -- July 3, 2007 issue -- free article -- and on feature of home page

It likely comes as no surprise to you, but employees and their bosses have totally different opinions when it comes to the Family and Medical Leave Act (FMLA).

Employees are happy with the 14-year-old law and want to expand it further to cover longer leaves and even paid leaves, as in many European countries. But employers argue that the law’s vague wording (and employees’ ability to play games with FMLA) are creating legal and productivity nightmares.

That’s the bottom line of a newly released U.S. Labor Department report that summarizes more than 15,000 public comments the agency received since last December on the FMLA’s effectiveness.

"This report is further evidence of the need for immediate action by the DOL to clarify the leave rules. It's time to restore clarity and fairness to the FMLA," said Susan Meisinger, CEO of the Society for Human Resource Management (SHRM).

A SHRM survey earlier this year found that more than half its members said they face "significant challenges" in implementing the law's medical leave provisions. SHRM is part of the National Coalition to Protect Family Leave, which is pushing the Labor Department to issue new clarification regulations.

Here are the three main problems employers have with the FMLA, according to the Labor Department report:

  • Lack of clear definition of “serious health condition.” Employees can qualify for up to 12 weeks of unpaid, job-protected FMLA leave if they’re suffering a “serious health condition” or if they’re caring for a child or spouse who has such a condition. But employers complained that the vague definition is unclear and too generous. "Currently, a common illness such as sinusitis might be considered a 'serious health condition' in one organization and not in another, both under protection of the FMLA," explained Meisinger. "Without fairness and clarity, the integrity of the FMLA is threatened."
  • Productivity problems caused by (and abuse of) intermittent leave.  As the law allows, employees with chronic health problems often take FMLA leave in short increments of an hour or less. This can cause a productivity, scheduling and cost predicament, especially in time-sensitive industries like health care, public safety and transportation. These unscheduled, intermittent leaves, the DOL report says, are “the most serious area of friction between employers and employees seeking to use FMLA leave ... no other FMLA issue even comes close”
  • Unclear notification requirements. Employees must give 30 days notice if their FMLA leave is foreseeable (such as childbirth). But when time off is unexpected, employees need only notify their employers two working days after the need for leave is known. 

Outlook: Don’t expect these comments to spur the Labor Department into action. The agency has been pondering for years whether to issue clarifying FMLA regulations. Victoria Lipnic, the assistant labor secretary for employment standards, said the agency has no intention to propose any new leave regulations “imminently.”

“There was a general overall finding that this law works pretty well and is serving a lot of people that it was meant to serve,” said Lipnic.

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