Hands Off My FMLA!

By Judith Stadtman Tucker, January 2, 2007

It's no big secret that the United States is a shameless outlier among our peer nations when it comes to adapting to the realities of the 21st century workforce.  Of 168 countries included in a recent global study, 163 guarantee a period of paid leave for childbirth; the U.S. does not.  (Among affluent countries, only the U.S. and Australia do not provide paid childbirth leave -- and Australia offers 52 weeks of job-protected leave to all women, compared to the miserly 12 weeks of unpaid leave available to roughly one-half of women workers in the U.S.)  139 countries provide paid leave for short- or long-term illnesses -- and117 of those nations guarantee at least one week of paid sick leave -- while in the U.S., 55 percent of private sector employees do not have paid sick days, and 86 million workers do not have a single day of paid leave that can be used to care for a sick child.

Not to mention, the United States is the only industrialized country that does not provide universal health care.

While free market hardliners defend this lackadaisical approach to promoting the general welfare as the American Way, our nation's abysmal track record on implementing family-friendly policies has been tied to a host of serious social problems, from high rates of child poverty and unprecedented levels income inequality, to the gender wage gap and the chronic shortage of women in corporate and political leadership.  Given the bleak landscape for America's working families, fact that the U.S. Department of Labor is currently exploring the feasibility of eliminating critical worker protections provided under the Family and Medical Leave Act seems par for the course.

While progressive advocates applaud the FMLA as "one of the most important advances for working families in decades" -- since 1993, an estimated 80 million Americans have taken job-protected FMLA leave to take care of their own or family health needs -- the Department of Labor reports it has "heard a variety of concerns expressed" regarding the impact of FMLA leave-taking on business performance.  On December 1, 2006, the DOL issued a formal request for public comments on the FMLA, including a detailed request for new and unpublished information related to the effects of FMLA regulations on business operations and outcomes.

FMLA supporters speculate that the primary purpose of the DOL's Request for Information (RFI) is collecting data to substantiate employer demands to roll back specific worker protections provided under the Act, particularly information that could justify redefining covered health conditions and revising regulations that allow workers to take FMLA leave in less than four-hour increments.  (For information about current FMLA provisions, see the National Partnership for Women and Families Guide to the Family and Medical Leave Act.)

A close reading of the RFI does little to allay suspicions that the DOL is preparing to bow to anti-FMLA pressures.  Although public comments need not address the technical information requested by the Department, the issues posed in the RFI are heavily weighted toward identifying legal and administrative burdens the FMLA places on employers.  Although the purported intent of the RFI is to ascertain "the effectiveness of the current implementing of regulations and the Department's administration of the Act," no information is sought on the health, employment and economic outcomes of workers who take FMLA leave, or of those who need family or medical leave but cannot take it because they do not work for covered establishments, do not meet working-time requirements for eligibility, or who are covered and eligible but cannot afford to take time off without pay.

While the DOL issue summary focuses almost exclusively on employer grievances, the notice clearly states that employer complaints about the FMLA are not universal or evenly distributed -- nor do they target the most common instances of leave-taking.  For example, the Department "has not received complaints about the use of family leave -- i.e., leave for the birth or adoption of a child.  Nor do employers for the most part report problems with the use of scheduled intermittent leave ... such as when an employee requests leave for medical appointments or medical treatments like chemotherapy.  Rather, employers report job disruptions and adverse effects on the workplace when employees take frequent, unscheduled, intermittent leave from work with little or no advance notice to the employer."

Nor do the majority of employers report that unforeseen, intermittent leave use is taking an unreasonable toll on productivity and profits.  In 2000, 88 percent of employers in covered establishments with up to 250 employees, and 80 percent in larger establishments, reported that FMLA leave-taking had a neutral effect on productivity.  Employers were even less likely to report that the use or administration of FMLA leave put a dent in their profits, with only 7 percent of those in larger establishments reporting a large or moderate impact.

Yet according to representatives of the anti-FMLA business lobby, a critical mass of irresponsible and under-motivated hourly-paid workers are dragging organizations down by using unscheduled, intermittent leave to avoid work and circumvent requirements for punctuality and attendance.  It should be noted that in order to qualify for intermittent FMLA leave, workers must first provide medical certification to confirm they are affected by a covered condition -- which employers may reject if documentation is incomplete or insufficient.  Employers may also require a second medical opinion at the employee's own expense, and -- for workers suffering from chronic conditions -- may require re-certification every 30 days.

Tellingly, the same employers who claim the use of unplanned, intermittent leave for FMLA-covered reasons is hurting their operations do not perceive the use of unscheduled, intermittent leave by salaried workers as a pressing problem.  According to the DOL, "some employers may not even record absences of a couple of hours or less because of the scheduling flexibility afforded to salaried workers, and because the absences often have no impact on such worker's pay and productivity."

While abuse of public or employer leave policies is probably inevitable and impossible to prevent, a 2005 industry survey found that only 14 percent of unscheduled absences were attributed to workers' "entitlement mentality" (healthy employees were far more likely to take time off to deal with family issues or personal needs).  Human resource experts also see a link between high levels of unscheduled absenteeism and management practices that contribute to low employee morale.  It is entirely possible (and perhaps even likely) that in some establishments, a modest number of lower-wage, hourly-paid employees -- who, according to work-life researchers, are least likely of all workers to have any control over their working time or location -- are using FMLA leave to mitigate the inflexibility of their working conditions without losing their jobs and health coverage.  Referring to a national survey finding that less than 1 percent of all workers in covered establishments take unscheduled, intermittent FMLA leave, DOL analysts raise questions about employers' assertion that "the temporary absence of less than 1 in 135 employees" has "a significant impact on the overall efficiency" of their operations. But from the nature of the employer-controlled data solicited by the DOL, it appears that one of the main objectives of the RFI is to determine whether the actual incidence of unscheduled, intermittent FMLA leave-taking is substantially underestimated -- lending credibility to charges that the negative impact of leave-taking on business performance is more severe than government data implies.

However, a quick survey of FMLA-related testimony and public comments on the U.S. Chamber of Commerce web site reveals a small but powerful group of employers presenting anecdotal evidence and individual examples of problematic leave-taking.  A common complaint among employers is that FMLA regulations interfere with efforts to motivate workers by giving awards for perfect attendance -- hardly a ruinous development, considering that leaders in the human resource field rate "personal recognition" programs the least effective strategy for reducing absenteeism.  Although anti-FMLA employers often suggest that worker entitlements under the Act constrain managers' ability to reassign or discipline problem employees, the DOL observes that "some believe the apparent concentration of workers taking unscheduled, intermittent leave [in particular establishments or facilities] may be due to poor management or labor relations problems."  In other words, it's not fanciful to suggest that the productivity and profit loss reported by a small number of employers is the result of a misguided commitment to outdated managerial practices, and fallout from workers' alleged exploitation of family and medical leave is at most a secondary factor.

Meanwhile, recent research on the relationship between parental leave and healthy child development indicates that longer, paid leaves are associated with better infant outcomes, but shorter, unpaid leaves are not.  If any revisions are in store for the FMLA, it should be to expand family and medical leave coverage to more workers (currently, only 60 percent of U.S. workers are both covered and eligible), extend the duration of leave from a maximum of 12 to a minimum of 16 weeks, and provide wage replacement for workers who need longer, continuous leaves for childbirth and infant care or serious health conditions.  Considering exceptionally high rates of infant mortality in the U.S. and the fact that over 50 million U.S. adults are primary care providers for frail and disabled family members or children with special health needs, preserving and strengthening the FMLA is the very least we can do to protect the health and welfare of today's -- and tomorrow's -- workforce.

Public comments on the FMLA may be mailed, emailed or faxed and must be received by 5:00 PM EST on February 2, 2007.  In the coming weeks, a number of organizations -- including NOW, the National Partnership for Women and Families and MomsRising --will be launching online petition and letter-writing campaigns in response to the request for comments.

Federal Register/Volume 71, Number 231/Friday, December 1, 2006.  Request for Information of the Family Medical Leave Act (Pages 69505-69514)