FMLA in the Workplace

The Family Medical Leave Act is a government required employment law. This law mandates that any company involved in commerce with over 50 employees to provide its employees 12 weeks of unpaid but job protected leave to individuals that are eligible for severe illnesses of themselves or close family (spouse, children etc...), pregnancy, pregnancy troubles, adoption, and foster care placement. It mirrors another law Title VII, which also requests that employers allow medical leave to employees in specific situations. The reasoning behind the law is that Congress thought it would be a way to promote the family unit by allowing time for families to be off for sicknesses or babies. Congress was also concerned that the lack of labor laws was creating a significant dilemma for pregnant mothers, and it was making it so employees had to choose between their children/family and their job security.

The cost for FMLA for one year for companies is $21 billion. This is with an average of 18% of employees using FMLA an average of 10 days. The money required for FMLA is not even counting a general corporations money already invested in current sick leave programs and maternity plans. Individuals use FMLA instead of the company's other plans which risks their job security. This law appears to be accessible and easily used within companies. However, there are significant troubles with how employers apply the law within their own companies.

The problems that you see most with FMLA are listed here:

1. Regulations not consistent with Congressional intent.
2. Overly broad and conflicting "opinions" issued by DOL.
3. Only employees who worked 1250 hours last year are eligible. Tracking this is difficult.
4. There are 4 different methods for choosing a "calendar year", some of which are very difficult to track manually.
5. Many companies require a 30 day notice before the leave can be taken.
6. Due to many employees using the system incorrectly employers are very nervous, and cynical about other employees excused for using FMLA.
7. Employees that use FMLA are risking not being able to obtain promotions later, because FMLA is counted as a negative in an employee's record.

The rules that have to be met before FMLA will even apply are as follows: (1) be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; (2) have worked at least 12 months (which do not have to be consecutive) for the employer; and (3) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. Now the time of for FMLA can be consecutive or it can also be intermittent. Meaning that if an employee's child has cancer and they need a day off here and there for Chemotherapy that would be allowed. The problem with this law does not apply in the law itself. This law actually in wording gives individuals the freedom to balance their home life with their career without a negative impact. The issue with the law is how it is applied by different companies, and the human resource departments that "govern" it. There needs to be a more strict involvement of The Wage and Hour Division of the Employment Standards Administration that administers FMLA. To determine the 1,250 hours for the year companies will assume the time is there than once the employee comes back from FMLA there is no position to come back to. Employees are not given as much information as they should in regards to who to contact and whether the company the work for is applying FMLA lawfully.

Broad regulations and interpretations have pushed the law far away from Congressional intent, resulting in problems for employers and employees alike. Right now the phrasing in FMLA for a serious illness is this: "any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility". This could obviously be many different things and companies have had excuses as small as the sniffles and as severe as cancer. There needs to be a more specific idea as to what severe entails. Doctor's offices or hospitals could have the regulations on this so when they are filling out the paperwork they know whether they should even fill it out for the employee.

Within FMLA it specifically states that employer's are not allowed to discriminate against an employee that uses FMLA. However, this is not well monitored. Many individuals that use FMLA or ADA are passed up for promotions or not given a raise for low performance, but it is the usage of such programs. There should be a yearly check on raises and promotions and those interviewed or passed on, and whether or not they share FMLA backgrounds. This way it keeps employer's on the straight and narrow and not using biases for judging people's abilities.

What is needed is to add a clause in regards to the law that there has to be a course or few hour classes on the rules and regulations of FMLA when you start a position. This will give employees the feeling that they do have an option and they also have the ability to report problems in how this is administered. Right now the average employee does not know that there is a phone number to contact on compliance of FMLA. There should also be a handbook that is passed out for new employees or even employees that have been working within the company for the 1,250 hours which even out to about to 156 working days or almost 8 months. Since there is so much regulation on FMLA people could not abuse the system with the information given, but it will save them heartache and stress later. There are plenty of regulations to help companies from employees that will abuse the system, however there aren't many that require companies to be as forthright.

The solutions that can aid these issues and previously talked about ones are small in comparison but need serious consideration by government officials.

1. Record Keeping needs to be streamlined and overseen but other bodies than a internal human resources team.
2. Require companies to have classes after an employees 7th month of employment about FMLA and how it works.
3. Make sure that booklets are available for free from local human resource departments on FMLA.
4. Redefine what "serious health condition" means so that with the before mentioned changes no employee can abuse the system.
5. Centralizing the actual management of FMLA per state, even by city so that employees and employers have a local place to go for information and guidance.
6. Employers should not be allowed to count the valid usage of FMLA against an employee's raises or promotional status.

This law should not be repealed, just laid out more subjectively and friendly to both employers and employees. It needs to mirror the way HIPAA is treated within the workplace, FMLA needs this respect and open door policy so that employees and the companies they work for all have the knowledge needed to create a successful work environment.