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Subscribe by EmailIs the FMLA the "the Far More Leave than anyone intended Act"?
The Wall Street Journal’s Career Journal asks: “Has the Family and Medical Leave Act given employees too much freedom to take time off?”
Certainly many employers think so. But there are also employee rights lobbyists pushing to expand its coverage. Meanwhile, the quantity of litigation and resulting body of caselaw keeps growing. As some legal questions are answered, others are raised.
The article says:
It’s unclear whether use of the act has grown in the past five years. What has increased is confusion about it. According to a Labor Department spokeswoman, the number of complaints about the law, from both employers and employees, rose to 3,565 in 2003 from 2,790 in 2001.“There is practically an invitation for some people to misapply and misuse the act in ways that were never intended,”
says Deanna Gelak, head of the FMLA Technical Corrections Coalition, a business group founded in 1997 to get Congress to amend the act.
The group is pushing Congress to include a better definition of “a serious medical condition” and to prevent employees from taking their leaves in small increments of time.
The WSJ article is: “Family and Medical Leave Act Leaves Employers Frustrated” by Sara Schaefer Munoz
Here’s a great example from this article: An employee who didn’t like her new job assignment first announced her resignation, then changed her mind. The next day, she turned in a doctor’s statement supporting a 12-week leave “due to stress.”
The employer believes the employee plans to quit when her leave runs out. In the meantime, it feels “left in limbo, unable to hire a replacement for 12 more weeks.”
Hmmm . . . 12 weeks exactly? What a coincidence: that’s exactly the amount of FMLA entitlement.
“Stress”? How was that diagnosed? What DSM IV classification is “stress”?
I’d go for a second medical opinion. And if an employee resigns and then “changes their mind,” normally it’s ill-advised to allow retraction of the resignation.
The website of the FMLA Technical Corrections Coalition is worth checking out. It has some very useful information, including:
“Key Findings From FMLA-Related Surveys”
1-page fact sheet on why “FMLA Corrections Are Urgently Needed,”
“List of Reported Court Cases in Which the Validity of an FMLA Regulation Has Been Challenged”
Employers may wish to consider membership in the Coalition.
The Coalition’s mission statement:
The Coalition favors passage of legislation that will correct the Family and Medical Leave Act, incorporating such technical corrections as:Sphere: Related Content* restoring the meaning of “serious health condition” to the original Congressional intent,
* clarifying the definition of “incapacitated”,
* modifying “intermittent leave” to allow half-day increment tracking,
* streamlining record keeping, and
* allowing employers to offer a choice between FMLA benefits or paid sick-leave.The Coalition strongly opposes any expansion legislation. Expanding a law that is not working properly will only exacerbate the problems that employees and employers are having under the law’s misapplication.
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Managers sometimes seem to be afraid of both the FMLA and the ADA. They don’t understand that the protection works both ways and that there are teeth in both laws that let managers keep from getting put into binds like the example. Neither law forces businesses to “float” true problem employees.
That being said, I agree with all of the coalition’s recommendations except the final one. Allowing employers to substitute paid leave will create more of a problem than a solution, and it can undermine the uniformity of rights that helps make the FMLA so effective. That’s also one area that is specifically addressed in the FMLA statute. Even the U.S. Congress official guide to the FMLA uses a specific example in that case — explaining that an employee who takes four weeks of paid leave is only entitled to eight more weeks of unpaid leave. In other words I don’t see that recommendation as necessary.