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Commenters Clash Over FMLA Intermittent Leave Rules

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Employers say some reasonably healthy workers are using the federal Family and Medical Leave Act regulations to fine-tune their schedules.

U.S. Department of Labor officials have included those employer and trade group complaints in a 161-page report summarizing 15,000 comments the department received after it put out a call in December 2006 for information about how the FMLA regulations are working.

“There is broad consensus that family and medical leave is good for workers and their families, is in the public interest, and is good workplace policy,” Victoria Lipnic, a department assistant secretary, writes in a foreword to the report.

Lipnic, who wrote the report together with Paul DeCamp, administrator of the department’s Wage and Hour Division, says she and DeCamp hope it will help interested parties and policymakers hold better-informed discussions about ways to resolve the concerns they do have about FMLA regulations.

The FMLA, enacted in 1993, requires many employers with 50 or more employees to offer a total of 12 weeks of unpaid leave during a 12-month period to permanent, full-time employees who have been at their jobs for more than a year and who give birth, are involved with childbirth as fathers, adopt children, suffer serious health conditions, or need to care for spouses, parents, sons or daughters with serious health conditions.

Labor Department officials estimated in 2006 that the number of employees who took FMLA leave in 2005 might have ranged from 2.4 million to 13 million.

Unum, Chattanooga, Tenn., estimates in its comment letter that 17% of the eligible employees in FMLA programs it administers for 95 employers took FMLA leave in 2006.

But a survey of 241 corporate benefit managers by the International Foundation of Employee Benefit Plans, Brookfield, Wis., found that 48% of participating managers said fewer than 6% of their companies’ workers use FMLA leave each year, Lipnic and DeCamp write.

Lipnic and DeCamp point out that employees can take “intermittent” FMLA leave in the smallest increments that an employer’s payroll system can handle.

One employee who is caring for a wife with multiple sclerosis wrote to talk about the importance both of FMLA leave and of intermittent leave.

“Since MS is an incurable disease without a schedule or any way of knowing when an episode is going to [occur], I cannot always foresee when I am needed at home,” the employee writes in his comment.

Some employers and benefits administrators also emphasize the value of the FMLA program and intermittent leave.

“What I am seeing with increasing regularity are FMLA requests for employees to care for an elderly parent who is ill and not able to afford a caregiver to attend to his/her needs,” an FMLA administrator writes in one comment. “These are usually for intermittent leaves that will allow the employee to chauffer their parent to the doctor [or] attend to their parent post-surgery.”

But employers and their representatives also wrote to complain that one Labor Department FMLA regulation, which defines a serious illness as an illness that incapacitates a worker (or a worker’s close relative) for 3 or more consecutive days and requires 2 visits to the doctor, can end up leading to ordinary, uncomplicated colds and earaches being defined as serious illnesses.

In addition, many doctors fill out FMLA certification forms in a perfunctory way, and the privacy provisions of the Health Insurance Portability and Accountability Act often make getting any information from doctors to verify medical certifications difficult, employers and others write.

“More than one provider has written ‘HIPAA’ across the form and returned it,” according to a letter submitted by an executive from a disability claims processing unit of American International Group Inc., New York.

Meanwhile, because employees with chronic conditions, such as asthma or diabetes, can take FMLA leave in very small increments, and the rules for when employees have to notify employers about FMLA leave are unclear, some employees seem to use FMLA leave for reasons other than dealing with the chronic conditions, according to employers and other commenters who spoke for employers.

At one manufacturer, for example, “our payroll system allows for increments as few as 3 minutes, and one facility had over 200 incidents of 3-minute FMLA uses in 2005,” a benefits manager writes. “We strongly suspect that our incidents of 3-minute FMLA leave are used to excuse tardiness.”

In some departments at some employers, 75% to 100% employees are making use of the FMLA intermittent leave provisions, a labor lawyer writes.

At Southwest Airlines Inc., Dallas, use of FMLA intermittent leave “plummets on Dec. 25 Christmas Day each year when triple overtime is paid,” an airline executive writes. “FMLA usage is near its peak the day before Christmas and jumps the day after, but somehow nearly all those employees who have been out on FMLA feel better on Christmas day and are able to come to work.”

A manager of a 911 call center in New York City says 10 of the 27 employees in the 911 division are certified for FMLA.

When the FMLA-certified employees call in sick, “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 call center manager writes.

Many commenters who wrote on behalf of labor groups defended the current rules and said they are seeing employers make overly aggressive efforts to question FLMA requests.

“Several commenters stated that employers repeatedly reject certifications as incomplete without specifying what additional information is necessary, leading to a prolonged and frustrating back-and-forth process,” Lipnic and DeCamp write.


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