On FMLA's 20th Anniversary, Employers Reiterate Reservations, Advocates Urge Expansion

Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...

Twenty years in, employers still have many concerns with the Family and Medical Leave Act, representatives of the Society for Human Resource Management and the U.S. Chamber of Commerce told BNA.

Meantime, lawmakers, the Labor Department, and work and family advocates marked the 20th anniversary of the signing of the federal leave law last week with the release of a report on the use of FMLA leave and renewed calls for paid leave initiatives.

Employer groups allowed that the FMLA has had its benefits, but also pointed out the many ways that it is problematic for employers.

In a statement provided to BNA Feb. 7, SHRM said its members “have consistently found the FMLA difficult to administer in the workplace. But neither SHRM nor its members want to dismantle the FMLA and the benefits it affords American families.”

Incremental Leave and Other Concerns

Nancy Hammer, senior government affairs policy counsel at SHRM, told BNA Feb. 7 that tracking very small increments of leave is a big problem for employers. “This has been one of the issues that has been vexing for HR professionals for years, hasn't gotten better or worse, but possibly has gotten more complex,” she said. “The law is fairly straightforward, but the regulations are complex and hard to implement. This is what we hear from our members, despite what DOL says in their recent study.” Hammer added, “I'd be curious what their methodology was, because it doesn't align with our experience or that of our members.”

SHRM said it “has championed modifications to the regulations governing how the Act is implemented.” It also said it is “changing the conversation to one about flexible work arrangements and leave programs that are free of these rigid government mandates so organizations can create innovative and more flexible ways to meet the changing needs of their employees.”

Likewise, the chamber remains critical of the law but has no plans to attempt to dismantle it. While it's true that the chamber opposed passage of the FMLA, “we are not currently trying to repeal it,” Marc Freedman, executive director for labor law policy at the chamber, told BNA Feb. 7. “We are trying to make sure it works as well as it can for employers,” he said, adding that “there are definitely problems that have emerged over the past 20 years.”

“The situations that create the most difficulties for employers relate to leave that is unscheduled,” Freedman said. “The problems are where employees take medical leave with no notice, or intermittent leave. Much of that is for legitimate reasons, but it can still make problems for employers that have to make adjustments, have other employees cover, or the job goes undone and customers are inconvenienced.”

There are also what Freedman called “statutory problems,” especially the provision of the law relating to serious health problems, “which has been watered down to the point where people can get medical leave for a range of medical conditions, including, under certain circumstances, the common cold.”

Freedman further asserted that while not the majority, “there are employees who use leave not for legitimate reasons, but just call in and say they can't come in today.”

“Even with all the problems,' Freedman said, “employers generally want to work with employees to get the time they need.”

Study: Many Don't Qualify for FMLA Leave

The FMLA provides workers with 12 weeks of unpaid leave to care for themselves or a family member with a serious illness or after the birth or adoption of a child. However, the law only applies to workplaces with at least 50 employees, and workers must have been at their job for at least a year and have worked at least 1,250 hours in the year prior to the leave.

As a result, only 59 percent of surveyed employees reported they met the qualifications to take FMLA leave, according to DOL's report, which was released Feb. 4. The report, Family and Medical Leave in 2012, consists of survey results compiled for DOL by Abt Associates, a Cambridge, Mass.-based consulting firm.

The firm surveyed 1,812 worksites and 2,852 employees last year, including both employers and employees who are covered by the FMLA and those who are not.

The survey found that 13 percent of all employees, both those who were covered under the FMLA and those who were not, took leave for an FMLA-covered reason in 2012. That figure was unchanged since the last time a similar survey was conducted, in 2000. Among workers who were eligible for FMLA leave last year, 16 percent took leave, while only 10 percent of ineligible employees did so.

Most Leave Taken Due to Workers' Own Illnesses

Some 57 percent of the leave workers took was due to their own illness, the report said, while 22 percent took leave in connection with the birth or adoption of a child and 19 percent said they took leave to care for a spouse, child, or parent. Another 2 percent took leave for other reasons.

Of the leave that was taken, 42 percent was for a period of 10 days or less, the survey found, and only 17 percent lasted for more than 60 days. Those findings were similar for both FMLA-eligible and noneligible employees, the report found.

Although the FMLA only mandates that covered employers provide workers with unpaid leave, the survey found that most workers who took leave for FMLA-covered reasons received some pay, with 48 percent receiving full pay and another 17 percent receiving partial pay. However, for leaves of more than 10 days, only 40 percent of workers received pay, while 60 percent were paid during leaves of 10 days or less.

The survey also found that “most employers report little negative impact of the FMLA,” with only 14 percent of FMLA-covered worksites reporting it was “somewhat difficult” to comply with the law, and only 1 percent saying it was “very difficult.”

The results of the survey were touted by the National Partnership for Women and Families, a nonprofit group that helped draft the legislative language that became the FMLA. The organization said workers had used FMLA leave more than 100 million times since the law's enactment, but urged lawmakers to continue pushing for legislation that would expand the law's scope.

FMLA Intended as 'First Step'

“We intended the FMLA to be the first step on the road to a family friendly nation,” NPWF President Debra Ness said in a Feb. 4 statement. “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.”

“The law has been a huge success, but it's time--past time--to take the next step,” she 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 Labor Department report, Ness said, “makes a compelling case to expand the law and adopt a paid leave plan.” NPWF noted that FMLA leave is not available for workers who need time off to care for parents-in-law, grandparents, grandchildren, siblings, domestic partners, or same-sex spouses, nor does it provide leave for domestic violence victims.

Lawmakers Laud Law

Lawmakers and advocates gathered at two Capitol Hill events Feb. 4 and 5 to celebrate the anniversary and to press for further action.

The FMLA “was the first piece of legislation that said, the lives of the families of this nation have changed, and our public policy has got to change with it,” Rep. Rosa DeLauro (D-Conn.) said Feb. 4. The law “transformed American workplaces for the better,” she said, making them “more family friendly and more productive.”

But, DeLauro said, “we have work to do,” since the FMLA only covers a portion of the workforce. “We need to modernize and expand FMLA,” in addition to passing paid leave legislation, she said. Working parents “should not have to choose between your job, taking care of yourself, and taking care of your family.”

DeLauro has repeatedly introduced the Healthy Families Act, which would require employers to offer paid sick leave to workers.

Meanwhile, Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor, and Pensions Committee, spoke about leave issues on the Senate floor Feb. 4. The law, he said, “has changed this country in profoundly important ways.”

“One of the most common and critical challenges faced by families is the loss of income while taking unpaid FMLA leave,” Harkin said. “A social insurance program to provide some wage replacement during family and medical leave would allow families to maintain their economic security while seeing to their families.”

“Research shows that this could be done on a universal basis with very small, shared contributions by workers and their employers. Two states, New Jersey and California, have already implemented such paid leave systems, helping families in those states to be financially secure during family and medical leave,” Harkin said.

NPWF echoed that point, saying in a statement that “creating a national paid leave insurance program would ease burdens for both employees who need paid leave and employers who cannot afford the full cost of offering paid leave to their workers.”

While the chamber opposes a paid leave law and other FMLA expansion, Freedman said the employer group is not overly concerned. There is “no appetite” for mandated paid leave in the current Congress, he said, “not even among Democrats, except for Sen. Harkin, who will definitely make noises about it.”

By Michael Rose and Martin Berman-Gorvine
Gayle Cinquegrani contributed to this report.

Text of the DOL report is available at http://op.bna.com/dlrcases.nsf/r?Open=mroe-94ntww. Links to the report's methodology and data are available at http://www.dol.gov/asp/evaluation/fmla/fmla2012.htm.


Request Bloomberg Law for HR Professionals