Two Perspectives on the FMLA

Posted on Wednesday, April 24, 2019

In most cases, the verdict on the Family and Medical Leave Act (FMLA) is, it's working. However, in one report from the Department of Labor, both employers and employees expressed concerns about the law and how it affects their day-to-day lives.

FMLA Basics

    The FMLA covers businesses with 50 or more eligible staff members. Eligible employees are those who have worked for a company for the 12 months prior with at least 1,250 hours of service.
    Covered employers must grant up to 12 work weeks of unpaid leave during a 12-month period for the following reasons:

The birth and care of the employee's newborn child.
The adoption or foster care placement of a son or daughter.
The need to care for an immediate family member (spouse, child or parent) with a serious health condition.
The inability of the employee to work because of a serious health condition.

Many states have additional laws which grant employees leave beyond the FMLA.

When the FMLA was passed back in 1993, it was greeted with apprehension, mostly from employers who worried staffers would take advantage of it. To follow up on those and other concerns, the Labor Department requested feedback from both sides. Generally, a report of this nature is compiled when legislators are considering rule changes. But the purpose of this study was to generate a discussion about how the FMLA plays out in the workplace.

After collecting more than 15,000 comments, the DOL summarized them in a Request for Information Report. Not surprisingly, employee comments were generally more favorable than those made by employers, as you'll see in the excerpts below.

How Employees Feel

In part, the FMLA was passed to allow employees the time needed to recuperate from illness, seek medical treatment, or care for certain family members, without fear of losing their jobs.

"When my mother was diagnosed with lung cancer my brother and I decided I would be the one to take her to all her appointments and therapy. I would've had to lose my job or leave it without FMLA. It was difficult for the people I worked with because it put a strain on the office, however they were, for the most part, emotionally supportive as well."

Besides the obvious benefits to themselves and their families, some employees said they returned to work feeling more productive and more motivated.

"Thanks to the FMLA, I was able to take three months off ... in order to take care of my husband when he was reduced to a state of complete dependency... and I developed a keen sense of loyalty to my employer, which has more than once prevented me from looking for work elsewhere."

Do employees see any weaknesses in the FMLA? Some felt the leave should be paid and there should be more time off allowed. Others would like the law to cover a broader range of family members, such as siblings and grandparents.

How Employers Feel

Clearly, some managers are dissatisfied with how the FMLA affects their businesses. Many concerns centered on the vague provisions of the law, plus the uncertainty whether there will be adequate staff coverage.

"Dealing with such situations is extremely difficult. Supervisors do not know if the employee will come in to work on any given day. They do not know if the employee will work an entire shift ... Without proper notice, a supervisor cannot make plans for a replacement."

In certain industries, FMLA absences can be devastating to operations.

"My company is a manufacturing facility . . . Unfortunately, the production process is often slowed down or brought to a halt when an employee is out on FMLA."

In other cases, a missing employee can inconvenience customers, as well as staff members.

"An office worker who shows up one hour late for work may find some extra paperwork on his desk ... A flight attendant who reports at 10 a.m. for a 9 a.m. departure ... has either (a) forced 100-400 passengers to wait and miss later connections, or (b) caused the airline to reposition another flight attendant onto the aircraft because, by federal regulation, an aircraft cannot board passengers or take off without a minimum number of flight attendants. The ripple effects of such delays can affect an infinite number of passengers, as well as numerous coworkers."

To make matters worse, unscheduled absences in certain jobs, such as 911 operators, can be detrimental to public health.

"Employees are given free license to call in sick on a day-to-day basis ...The remaining employees are working an enormous amount of short notice overtime and are denied their own personal and family time in order to cover these absences. The number of overtime hours being worked leads to overtired people making critical life and death decisions in an emergency driven environment."

Here are four other complaints employers cited about the FMLA:

1. Better definitions are needed. The FMLA states a "serious health condition" relates to a "period of incapacity of more than three consecutive calendar days and treatment of two or more times by a health care provider." Employers argue this definition is too general to limit absences to conditions which actually are serious.

2. The verification process needs tightening. Employees are expected to document their illnesses (or those of family members). But, some maintain their conditions are unpredictable and getting medical certification for every flare-up can be expensive. Meanwhile, employers are frustrated because the FMLA-required medical certifications do not give clear guidance about how much time off is needed. 

3. There is no clear distinction between other laws. Employers complain the FMLA overlaps with other laws, like the Americans With Disabilities Act (ADA). In response to the comments, the Labor Department admitted, "employee requests for medical leave often are covered by both statutes." As a result, many employers asked the Labor Department to implement a definitive process for administering leave requests with regard to the two statutes.

4. Unscheduled absences are hard to handle. Unscheduled "intermittent leave," which is allowed under the FMLA, is "the single most serious area of friction between employers and employees" and a "central defining theme in the comments," the Labor Department report stated. Scheduled leave is far less frustrating because employers have time to develop adequate solutions. But nearly 25 percent of those who took FMLA leave took at least some of it intermittently.

Problems are frequent in time sensitive, public health and safety operations, including police and fire departments, hospitals, long-term care facilities, transportation, manufacturers, and services like electric utilities during a power outage.

The Labor Department report states, while intermittent leave is the source of much tension in the workplace, the agency does not currently plan to intervene.

With this list of complaints, do employers see any benefits from the FMLA? According to the report, many comments emphasized "the positive impact the FMLA has on employee morale and how it increases worker retention and lowers turnover costs." By reducing turnover, some argued the law reduces employer costs.

A Step in the Right Direction

The Labor Department acknowledges better communication is necessary to further educate employers and employees about the FMLA. Although no legislative or regulatory changes are currently under consideration, the report is a step towards improved communication. It allowed employers and employees to voice their concerns, as well as view the FMLA from the other side. At the same time, policymakers can use the report to see how the law affects the lives and operations of businesses and employees in the real world.

Posted in Tax Topics For Individuals

Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.