New Report Cites Major FMLA Concerns for Employers

Intermittent and unscheduled leave under the federal FMLA law is a major concern to many employers, according to a report just released by the U.S. Department of Labor. The 181-page report is a comprehensive review of thousands of public comments received by the department since December 2006.

According to Assistant Secretary for Labor Victoria Lipnic, a co-author of the report, a number of employers raised concerns about the way FMLA is being handled in the workplace. “[We] heard from many workers and employers that there are challenges with the way certain aspects are being administered. This report provides information for a fuller discussion about how some of the key FMLA provisions and their interpretations have played out in the workplace.” Lipnic is head of the Department of Labor’s Employment Standards Administration. She co-wrote the report, with Paul DeCamp of the Wage and Hour Division.

The single larges area of friction is intermittent, unscheduled leave under the Family and Medical Leave Act of 1993. This type of leave is rare in some workplaces. It is very commonplace in others, which leads critics to conclude that it is overused. Under intermittent, unscheduled leave, workers can take off for short periods of time, without letting the employer know ahead of time. Under the current FMLA regulations, workers may take time off in the shortest increments that an employer tracks. Many employers round hourly workers hours to the nearest 15 minutes. Thus, under current regulations, an employee could take 2.25 hours of FMLA leave for a doctor’s appointment, or 1.25 hours off, or even less.

Under current U.S. Department of Labor regulations, employees must be allowed to take leave in increments as short as 1 hour, regardless of the employer’s time-keeping methods. An employer, who tallied salaried workers only by the 8-hour day, would still have to grant 1 hour of FMLA to a worker. In establishing these regulations 14 years ago, the department opined that the need for intermittent, unscheduled leave would be “infrequent.” It turns out they were wrong.

Critics argue that the FMLA was never meant to be used this way. They contend that the leave was designed for workers who have a heart attack, must care for a newborn child, or face another serious family or medical problem. Proponents of the current system point out that for an employee with an infection or a serious illness, keeping a doctor’s appointment may well be a life-or-death matter. If the employee can’t get time off to see a doctor in any other way, they argue that using FMLA for the purpose is appropriate.

Many workers with chronic serious health conditions use intermittent FMLA leave when they have sudden, unpredictable flare-ups. Such conditions may include rheumatoid arthritis, osteoarthritis, asthma, diabetes, migraines, chronic back pain, fibromyalgia, and the early stages of Lou Gehrig’s disease, Multiple Sclerosis or Parkinson’s disease. Individuals with these conditions may be able to work for months on end, but suffer from sudden, unpredictable relapses that make it impossible for them to work. A number of workers have asked that any new FMLA legislation specifically address such chronic conditions.

Although employees with chronic illness are the ones who use intermittent leave the most, it is also used in other circumstances. Expectant women with severe morning sickness and workers with debilitating depression also take advantage of this type of leave.

Under current regulations, employees must advise employers up to 30 days in advance of FMLA leave, when the leave is foreseeable. However, when leave is unforeseeable, the employee must advise the employer in “a timely fashion” – usually interpreted to mean within 2 business days after the event.

Employers argue that unscheduled, intermittent leave presents serious problems in terms of scheduling, attendance and productivity. They also argue that it creates morale problems for other employees, who must constantly scramble to cover the worker’s scheduled shifts.

The issue is more complicated because intermittent leave is the type that is most likely to be abused by workers. Some employers claim that employees use FMLA as a pretext for tardiness or absence unrelated to a serious health condition, or as a way to avoid normal shift call-in procedures. In some cases, employers say, the leave has been used to leverage a preferred shift for an employee, or to convert a full-time position into a permanent part-time position.

Despite these concerns, there’s no plan to scrap the FMLA altogether. “The 15,000 comments from workers, employers and others attest to the importance of family and medical leave for America’s caregiving workforce,” said Assistant Secretary Lipnic.