Nobody thought intermittent leave would be a problem when the Family and Medical Leave Act (FMLA) was enacted 20 years ago, on Feb. 5, 1993.
“The intent behind the law is very good,” noted John Bauer, an employment attorney in Littler Mendelson’s Melville, N.Y., office. But it’s become employers’ No. 1 headache, particularly for small employers, he told SHRM Online on Feb. 1, 2013.
As Debra Ness, president of the National Partnership for Women & Families, remarked on Feb. 4, 2013: “It’s had an enormous impact, letting tens of millions of workers take leave when they needed it the most, and changing the culture in this country. Those are women who needed medical care during difficult pregnancies, fathers who took time to care for children fighting cancer, adult sons and daughters caring for frail parents, and workers taking time to recover from their own serious illnesses. Because of the FMLA, their health insurance continued and their jobs were waiting when they returned to work.”
From chemo to a pain in the back
But administering the FMLA -- particularly intermittent leave -- is so difficult, Bauer said, that if you just mention the law to any HR professional, “they cringe.”
“It’s become the Friday-Monday Leave Act,” joked Matt Effland, an attorney at Ogletree Deakins in Indianapolis.
Bauer doesn’t believe that Congress gave intermittent leave much thought. He had been a practicing lawyer for six years when the FMLA was passed, and at first intermittent leave was barely mentioned.
“All attention was on 12 weeks and serious accident or illness,” he recalled. “That part has not been the problem.”
As originally envisioned, the law’s framers thought intermittent leave would be used for things like chemotherapy, and “everyone felt there was a good reason for it,” Bauer added.
Now it’s expanded beyond recognition so that employees may say, for example, they have a back injury certified by a chiropractor, and, suddenly, are eligible for up to 60 days off in a year.
“I think what needs to be done is to amend the law and provide fewer days for intermittent leave,” such as 30 days, he suggested; however, “I don’t think any amendment to correct the issues we’ve talked about will be made.”
According to Frank Alvarez, an attorney at Jackson Lewis in White Plains, N.Y.: “Without a doubt -- and it’s not even close -- managing the need for unscheduled intermittent leave for self-care conditions is the biggest challenge and surprise for the FMLA. Unfortunately, it is not getting any better, and I think it may even get worse.”
Part of the reason for this pessimism is that the goal posts for coordinating leave responsibilities between the FMLA and the Americans with Disabilities Act (ADA) moved with the enactment and enforcement of the ADA Amendments Act (ADAAA) and continue to move under state law.
Alvarez said the disparities in protections under state leave laws continue to increase. And the ADAAA, which took effect Jan. 1, 2009, “makes many, if not most, individuals who exhaust FMLA for their own serious health condition viable ADA plaintiffs.”
Add the challenge of intermittent leave to the growing obligations under state law and the ADAAA “and you have an absolute, albeit unintended, nightmare for employers,” Alvarez observed. “In many HR departments around the country it has become all leave all the time. Many employers are just throwing in the towel and giving employees whatever leave they want. This, in turn, impacts productivity and the workers who are left working longer, harder or different hours.”
DOL in denial
A Feb. 4, 2013, Department of Labor study gave short shrift to employers’ concerns about intermittent leave.
“While there has been considerable discussion of and concern expressed by some employers regarding intermittent leave (that is, two or more episodes of leave for the same reason), employee responses suggest that such leave is not common (only about 3 percent of employees took any intermittent leave). Reports of negative impacts on profitability and productivity due to intermittent leave are rare,” the study stated.
That hasn’t been Alvarez’s experience.
“Very few people anticipated the volume of intermittent-leave claims that would be made by employees,” he said. “Too often, FMLA-covered medical conditions are prone to abuse. Allergies and headaches, for example. The law’s protections of employee medical privacy make it even more difficult to combat that abuse.”
But the National Partnership for Women & Families hailed the study’s results and urged Congress to expand the law to apply to worksites with 20 or more employees and make employees eligible if they have worked 780 hours in the previous year, instead of the 1,250 hours currently required. The partnership also called for a national paid family- and medical-leave insurance program, among other proposals.
“The law has been a huge success, but it’s time -- past time -- to take the next step,” Ness said. “We are asking Congress to expand the law so more workers can take leave for more reasons and to adopt a national paid family- and medical-leave program.”
The partnership called the FMLA’s definition of “family” narrow. “FMLA leave is not available to caregivers of parents-in-law, grandparents, grandchildren, siblings, domestic partners or same-sex spouses. The FMLA does not provide leave for victims of domestic violence, sexual assault or stalking. And it does not provide any wages during periods of leave.”
As for the chances of FMLA amendments passing this year, Alvarez was skeptical. “I would be surprised if any were passed.”
Allen Smith, J.D., is manager, workplace law content, at SHRM. Follow him on Twitter @SHRMlegaleditor.
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