New Labor Dep't Rules for FMLA

Today's Washington Post has a story on the comments to the Labor Department's proposed new rules for the Family Medical Leave Act, which was enacted 15 years ago. Those rules would require workers to tell their their employers in advance when they take nonemergency leave, instead of being able to wait until two days after they left. Workers would be required to undergo "fitness-for-duty" evaluations if they took intermittent leave for medical reasons and wanted to return to physically demanding jobs. To prove that they had a "serious health condition," they would have to visit a health-care provider at least twice within a month of falling ill. And employers would have the right to contact health-care providers who authorized leave.

The comment period ended on Friday, April 11, 2008, and over 4000 comments had been filed. Debate on the changes is very hot at the moment. Workers worried about the economy and their job security do not want to see these changes implemented and are pushing Congress for some sort of paid leave. According to the Bureau of Labor Statistics (select option and click "retrieve data"), only 57% of workers have access to paid sick leave, and so many workers rely on FMLA leave to provide job security in case of their own illness or that of a close relative. And Democrats have introduced bills that would provide some paid leave. The Healthy Families Act would give workers seven days of paid sick leave to care for their own medical needs as well as those of a family member. The Balancing Act would provide paid family medical leave, benefits for part-time workers and time off for activities that require parental involvement, such as medical appointments.

Employers are concerned about cost effectiveness and also complain of abuses, for example that employees use the leave to cover up tardiness or absenteeism not due to serious health conditions. The U.S. Chamber of Commerce complains that too many employees take the leave, and one survey of members of the Society for Human Resource Management found that 40% of members allowed FMLA leave when they thought the reasons were illegitimate because they thought the law required them to.

The White House, meanwhile, is intent on putting its stamp on the FMLA. Assistant Labor Secretary Victoria Lipnic said her goal is to finalize the new rules during this administration, but she said it would take a long time to go through all the comments, which the department is required to do. She also acknowledged that although the Labor Department has the authority to rewrite regulations, Congress could stall or halt any changes by refusing to provide money for them. "I think it has a pretty good chance of being battled down," Rep. Lynn Woolsey (D-Calif.) said.

But to Lipnic, the proposals are simply a way to "clean up" the regulations, which have at times been so vague as to spark lawsuits. The proposals are also, she said, an attempt to end some abuses.

Clearly this is a tough issue if the DOL received 4000 comments on the proposed rules. Personally, I have a hard time believing that abuse of the law is as rampant as the Chamber of Commerce, at least, suggests. Because the leave is unpaid, and the fact that between 23% and 40% of workers live paycheck to paycheck, while only 37% of consumers have savings, I have a hard time believing that people can afford to take the leave unless they have to. Especially in a time of declining hours. This NYT story from earlier this the week really highlights the precarious position many workers find themselves in. The FMLA is an important protection, and I would hate to see employers given the green light to deny leave more often or simply make it too hard to take.

MM