From Family and Medical
Leave Handbook, ©Thompson Publishing Group, Inc.
In the early months of the
George W. Bush administration, the media has focused on the business community´s
ability to secure desired legislation from the GOP-majority Congress and the
newly Republican executive branch. Perhaps the first dramatic example of the
change emerging from the last national election was the rollback - under the
previously unused Congressional Review Act - of the ergonomics program standard
issued by the Occupational Safety and Health Administration in the waning days
of the Clinton administration. That action, combined with a series of Executive
Orders issued by President Bush that trimmed some labor union powers, has led
many to believe that political forces are now aligned so as to make possible
many statutory changes long sought by the business community.
In this environment,
legislation was introduced in the U.S. Senate - and a companion measure is
slated for the House of Representatives - to address many of the frustrations
employers have voiced with the FMLA. On March 8, Sen. Judd Gregg, R-N.H.,
introduced S. 489, the "Family and Medical Leave Clarification Act." His legislative
proposal is based on the premise that the current FMLA is not working as the
1993 Congress intended when it enacted the law.
FMLA´s ´Significant Unintended Administrative Burden´
When introducing the
measure, the New Hampshire senator noted that many employers - including some
firms that are nationally recognized for generous family friendly benefit and
leave programs - experience problems complying with the leave act. Sen. Gregg
pointed to what he called "overly broad" Department of Labor (DOL) regulations
and interpretations, which have had the effect of expanding the act´s coverage
to many non-serious health conditions, in his view.
Significantly, S. 489 would
render invalid all regulations and opinion letters issued by the Department of
Labor under the FMLA. If the measure became law, DOL would be directed to issue
revised regulations reflecting amendments to the statute.
According to Sen. Gregg, the
DOL´s construction of the FMLA, as reflected in its regulations and opinion
letters, has caused numerous difficulties. He stated on the Senate floor that:
The Department of Labor´s
implementation of certain provisions of the act has resulted in [the imposition
of a] significant unintended administrative burden and costs on employers;
resentment by co-workers when the act is misapplied; invasions of privacy by
[employers because of the DOL´s requirement that they] ask deeply personal
questions about employees and family members planning to take FMLA leave;
disruptions to the workplace due to increased unscheduled and unplanned
absences; unnecessary record keeping; unworkable notice requirements; and
conflicts with existing [leave] policies.
Sen. Gregg noted frequent
conflicts between the act´s provisions and employers´ paid sick leave programs,
and stated that the statute and regulations prevent businesses from managing
their absence control plans.
Changes the Senate Bill Would Make
Sen. Gregg´s bill would make
a number of changes to the statute. A major target of the proposed legislation
is the FMLA´s broad (some would say "administratively expanded" by the DOL)
definition of the type of "serious health condition" that can trigger statutory
leave rights. S. 489 specifically would exclude from the definition of serious
health condition short-term illnesses, injuries, impairments or conditions for
which treatment and recovery are very brief.
The measure also provides a
list of illustrative conditions that would
be covered by the FMLA. They include:
Sen. Gregg´s measure would
also revise regulations applicable to intermittent leave to require employees
to take FMLA leave in increments of up to one-half of a workday. This proposed
change is intended to minimize some employees´ purported use of intermittent
FMLA leave as an excuse for regular tardiness and as a routine justification
for early departures. In addition, under the bill, if an employee requesting
intermittent leave ordinarily travels as part of a job or assignment, and the
employer cannot reasonably accommodate the employee´s leave request, the
employer can require the employee to take leave for the entire duration of that
assignment.
Shifting Burden to Employee
The Senate bill also shifts
the responsibility to designate leave as FMLA leave from the employer to the
employee, and addresses the question of timeliness of an employee´s request for
leave. If an employer requires an employee to substitute other
employer-provided leave for unpaid FMLA leave, under the proposed legislation
the employee would have to make timely requests for FMLA leave or risk having
the leave denied.
In the case of foreseeable
leave, the measure would require the employee to provide advance notice (as
currently required by the statute), and to submit any written application
required by the employer no later than five working days after providing
notice. In the case of an unforeseeable need for leave - which some see as a
source of abuse by employees who fail to provide adequate notice, particularly
in the case of intermittent leave - the legislation would change several of the
DOL´s applicable rules. Under S. 489, the employee would be required to notify
the employer orally of the need for leave on or before the date the leave
commences, and to submit within five days a written application for leave. If
the employee were unable - due to physical or mental limitations - to provide
that notification, an additional period would be provided. In Sen. Gregg´s
view, shifting the responsibility for designating leave as FMLA leave to the
employee would eliminate the need for the employer to pry into private matters
regarding the employee and his or her family.
The measure also would give
the employer the option of making an employee choose between unpaid FMLA leave
and paid leave provided under a collective bargaining agreement, under an
Employee Retirement Income Security Act (ERISA) welfare benefit plan, or
through a sick leave, sick pay or disability plan, program or policy provided
by the employer. This language is designed to provide employers with an
incentive to continue their generous sick leave policies, while providing a
disincentive to employers who have considered elimination of such
employee-friendly plans.
A Companion Bill In the House
Rep. Judy Biggert, R-Ill.,
announced March 20 that she would sponsor a companion bill to the Senate bill
in the House of Representatives, probably sometime in April. The initiative
quickly drew the support of business groups, such as the U.S. Chamber of
Commerce and the National Association of Manufacturers. A broad industry
coalition, the "Family and Medical Leave Act Technical Corrections Coalition,"
which has sought just this type of legislative relief, also was quick to
embrace Rep. Biggert´s bill.
Nonetheless, there are many
- including some Republicans who are sympathetic to the industry groups - who
express pessimism about the likelihood of achieving relief through the
legislative vehicle in a closely divided Congress. Rather, leaders like Rep.
John Boehner, R-Ohio, chair of the House Committee on Education and the
Workforce, express concern about opening up the FMLA for statutory amendments,
and appear to prefer to seek these "technical corrections" through
administrative action that might be taken by a more "employer-friendly" DOL.
Intense Debate Foreseen
It remains to be seen if
either avenue - legislation or administrative action  - will prove to be productive for employers seeking relief from
interpretations they believe to be overly broad, confusing and burdensome. It
is likely, however, that pressure will be applied to take action in the current
political environment, the first in decades in which Republicans have
controlled both ends of Pennsylvania Avenue - the White House and Congress.
While it can be expected that industry groups and employers will seek to
advance initiatives friendly to their interests, those who seek to maintain
current interpretations of the FMLA and to expand leave protections also will
be vigilant and vocal in opposition. The debate is likely to be played out with
some intensity in the current Congress and throughout the Bush administration.