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Labor Asks About Ways To Improve FMLA

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The Employment Standards Administration wants employers, insurers, labor groups and others to tell it how the Family and Medical Leave Act really works.

The wage and hour division at the ESA, an arm of the U.S. Department of Labor, today published a formal request for comments in the Federal Register.

Comments are due Feb. 2, 2007.

Congress enacted the FMLA in 1993, and the Labor Department released the regulations that implement the act in 1995.

The law requires private employers with 50 or more employees and some government employers to provide eligible employees with up to a total of 12 weeks of unpaid leave during a 12-month period for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when the employee is unable to work due to the employee’s own serious health condition.

Affected employers must maintain the employee’s health coverage while the employee is on leave and reinstate the employee in the same job or an equivalent job after the employee returns from the leave.

The Labor Department has gathered feedback on the program from employers and others through stakeholder meetings and through public responses to requests for comments on the costs and benefits of the FMLA.

“Employers report to the department that they recognize the value of the FMLA and attempt to comply with its requirements,” officials write in a preamble to the list of questions.

Few employers have complained about the requirements to provide family leave, for employees who are having or adopting children, or for use of intermittent leave that is scheduled in advance, such as use of FMLA leave for chemotherapy treatments, officials write.

Instead, officials write, employers are complaining about the effects of provisions that require employers to let employees take frequent, unscheduled, intermittent leaves with little or no advance notice to the employer.

Surveys have suggested that about 40% of employees covered by the FMLA have no idea that the FMLA exists, but some employees who are intimately familiar with the law use it as an excuse to come to work late, officials write.

In some cases, for example, “an employee’s health care provider may certify an employee’s chronic condition and list the duration as ‘indefinite’ or ‘lifetime,’” officials write. “With respect to the frequency of the episodes of incapacity, the health care provider might write ‘unknown.’ Employers argue that this leaves them in the difficult position of guessing about the employee’s regular attendance.”

Unscheduled absences can hurt other employees, because most employers require co-workers to fill in for colleagues who are out on FMLA leave, officials report.

Officials say they welcome any comments about the FMLA, but they have included a long list of questions with the notice.

Questions include:

- How can the Labor Department get better estimates of the number of workers who are using FMLA leave?

- How can the Labor Department keep employees who use FMLA leave to get leave for minor illnesses, such as colds?

- Are there differences in leave usage based on occupation, employee classification, or other factors?

- How does unscheduled, intermittent leave affect employers’ productivity and profits?

- Why are FMLA leave rates so high at certain employers and certain types of employers?

A copy of the Labor Department’s request for comments is on the Web at Document Link


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