Noble Headache

The Family and Medical Leave Act achieves a high purpose -- at a price.

Although quick to defend the FMLA’s purpose -- calling it “laudable” and even “noble” -- HR professionals admit that, in a minority of cases, the FMLA gives them major headaches.

When the FMLA works, employees appreciate it. Meet Doris Gillispie, a food service worker with Milwaukee Public Schools:

“The FMLA did exactly what it was supposed to do,” Gillispie says. “My daughter was 43 and a mother of four children when she passed. She went to the store and never came back. She had an aneurysm.” Gillispie took a month off to deal with grief, settle her daughter’s affairs and care for the grandchildren. Then, when her brother died, she needed two months to wrap up his business and grieve.

“The Milwaukee Public Schools were OK with all that, as long as I kept checking in,” she says.

Many HR managers respect the FMLA for giving employees such as Gillispie the time off that they need.

Editors' note: Gillispie's FMLA leaves, documented by doctors' notes, were granted because of her own mental and physical health conditions following the deaths of her daughter and brother, not for bereavement leave.

“I don’t hate the FMLA,” says Sally Burnell, J.D., SPHR, program director in Indiana’s Employee Relations Division, an agency overseeing 31,927 full-time employees. “It’s hard to understand, and when employees are interested in [using] it, they’re up to their ears in difficult personal situations, and it’s tough for them. The law was put into place to give employees the opportunity to take care of those they love. But it has a lot of requirements.”

Mark Costa, SPHR, HR director for Team 1 Michigan, a plastic injection molding manufacturer in Albion, Mich., says about 5 percent of his workforce uses the law; the vast majority, legitimately. “I love its noble intent, but I hate its application and mutation,” he admits.

Many HR managers have a positive view of the act, according to a survey commissioned by the U.S. Department of Labor (DOL) and conducted by Westat in 2000-01. Some 83.6 percent of respondents said complying with the FMLA had a positive effect or no noticeable effect on productivity, and 90.2 percent said it had a positive effect or no noticeable effect on profitability.

At the same time, HR managers voice consternation about features of the law that contribute to abuse and complain that the FMLA prevents disciplinary action against alleged abusers. The worst-case scenarios involve intermittent leave, taken in tiny increments and without notice.

“No other FMLA issue even comes close” to causing as many headaches, said DOL researchers in a June 2007 report.

Despite common anecdotes about employees who abuse intermittent leave, the issue continues to be the tail that wags the FMLA dog. The features of the law that make that abuse possible reside in the definition of “serious health condition” and medical certification.

How Serious Is Serious?

The FMLA and its regulations provide up to six definitions of “serious health condition.” The condition must cause at least three days’ incapacity and have resulted in two doctor visits or one doctor visit followed by a regimen of ongoing care.

DOL officials waffle on whether conditions such as colds, the flu and earaches qualify: In 1995, they ruled out such ailments, but in 1996, they stated that in some situations those conditions could qualify if they involve incapacity for more than three days and either two doctor visits or one visit followed by a regimen of care such as antibiotics.

“If a ‘regimen of continuing treatment’ is defined to include a prescription for antibiotics, almost any medical condition today can qualify for FMLA coverage,” says Nancy Hammer, J.D., manager of regulatory and judicial affairs at the Society for Human Resource Management (SHRM). A prescription “is a poor way to measure whether someone has a serious health condition.” The definition could be better, agrees Raylana Anderson, SPHR, HR director for STS, an engineering consulting firm with 650 employees in Vernon Hills, Ill., and a member of SHRM’s Total Rewards/Compensation and Benefits Special Expertise Panel. “An employee once handed me a doctor certification that said, ‘May have occasional bad days,’ and the employee refused to let me talk to the doctor. Why would a physician do that? Either they don’t understand or they don’t think it’s a big deal. The law may have a good intent, but, in cases like that, it’s not well-implemented,” she says.

If DOL officials would define “serious health condition” clearly, HR professionals wouldn’t have to debate whether the flu is covered, said Terry Schneider, FMLA attendance administrator for the Port Authority of Allegheny County, Pa., in comments to the DOL. “I’ve denied leave for common conditions such as bronchitis and menstrual cramps only to be overruled by a DOL investigator. While these conditions may be covered under the category of ‘absence plus treatment,’ I find it distressing that an organization must approve intermittent leaves and treat them as ‘chronic conditions.’ ”

Doctors compound the definitional problem when they provide employers with a paucity of information. Burnell has problems getting adequate information in useable form from doctors concerned with protecting patient privacy and complying with the Health Insurance Portability and Accountability Act.

“Some doctors are good about giving sufficient information, but others don’t give enough,” says Debbie Robbins, HR manager for the city of Gillette, Wyo., with a workforce of 260. “For example, an employee calls in sick for a week. The doctor’s paperwork said ‘flu’ and that the employee was treated. But you have to track down the doctor because, to qualify for FMLA protection, the employee has to have had two doctor visits or be under a regimen of ongoing treatment.”

Many companies now hire specially trained physicians to verify or decode the information in certifications.

Yet most physicians are not knowledgeable about FMLA guidelines, says Schneider. “Many are not concerned with abuse of the FMLA provisions and routinely provide medical certifications even when not justified. A partial solution to this may lie in the education of medical personnel.”

The most severe pain stems from the intertwining issues of unscheduled, intermittent leave and medical certification, provisions that some employers say are being abused by employees. But advocates for family leave point to statistical evidence that intermittent leave does not create problems for most companies. These advocates also maintain that the law works well enough and that employers’ complaints cloud rational analysis of the law’s value to working people.

Obtaining Certification

Employees have problems with certification as well: Stephanie Barnell Darby, a former production employee for Asama Coldwater, an auto parts manufacturer in Coldwater, Mich., attributes her termination in part to failure to get medical certification.

Darby says she lost her job in August 2007 after enduring a week at home taking care of a 2-year-old with a nasty stomach bug.

“I took [my daughter] to a walk-in clinic and saw one doctor. Then, when I had to go back a second time, I saw a second doctor, and that doctor said she wasn’t comfortable certifying me for all the time off because she hadn’t seen my daughter the first time.”

Darby says she had already accumulated 5.5 points on her employer’s absenteeism system. Eight points results in termination. Absences that earned her those points, she says, were caused by her two children’s illnesses and by her own repeated sinus infections, followed by sinus surgery.

Darby says she tried to get FMLA protection for the August 2007 days, adding that Asama Coldwater’s HR director told her she would look into it. But when Darby was called into the HR office shortly afterward, she says she received a termination letter. Asama Coldwater officials did not respond to phone calls requesting interviews.

Notification Blues

Current regulations allow employees to give notice of FMLA absences after the fact. “It’s not unusual for an employee to give notice of an FMLA-covered absence after the employee’s shift has begun,” says SHRM’s Hammer. At that point, it’s “too late to hire a temp or call in another employee.” Either the leave-taker’s duties go unperformed or the replacement employee’s duties go unperformed. While the DOL currently allows employees to notify employers up to two business days after the leave has been taken, proposed changes would require employees to provide notice either the same day or the next business day.

Employers in industries with time-sensitive elements such as manufacturing, call centers, public utilities and transportation complain most about unforeseen, intermittent leave.

In manufacturing, “If you have an empty station, you try to call people in or you have to shut the line down. … You can’t get a temp because the jobs require skill,” says Costa.

“When bus operators report off work -- in many instances at the last possible moment -- a bus may be late or not show at all,” complains Schneider.

“Additionally, extra operators must be scheduled to work in anticipation of co-workers’ calling off work. These costs are critical to nonprofit organizations that rely, to some degree, upon government funding. The current provisions for intermittent leave present a significant burden to schedule-driven operations.”

The practice most affects state institutions such as prisons and hospitals with mandated staffing levels and no contingency plans to cover such absences. “We fill staffing gaps with existing workers and overtime,” adds Burnell.

Officials at the DOL have heard the grievances and have proposed regulations to address some of the problems (see “Change Proposals,” above).

Will the proposed rules address everyone’s complaints? Not even close. In fact, the proposal has generated feverish conflict.

“We see the need for a change in a different direction,” says Kate Kahan, director of work/family programs for the National Partnership for Women and Families in Washington, D.C. “These [proposed] regs, as a whole, have the theme of making it easier for employers to drag out the certification process or deny leaves.

“Misuse of intermittent leave is overstated,” she continues. “This is the only law we have to protect workers when they need to take time off.”

But whatever the outcome of the DOL proposal, employers still say they recognize the value of the FMLA.

“We have a responsibility to the family unit,” says DeHawley Brown, director of benefit services for Fairfax County Public Schools, the largest employer in Virginia. “It’s the right thing to do.”

The author is an attorney and writer who has been covering workplace legal issues for 20 years and is a member of the Human Resource Association of Central Connecticut.

Web Extras

SHRM survey report: FMLA and its Impact on Organizations

SHRM article: An Rx for FMLA Headaches (HR Magazine) 

SHRM video: Allen Smith, SHRM’s manager of workplace law content, reports on proposed regulations regarding medical certification under the FMLA 

Report: Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information, 2007 Update (U.S. Department of Labor) 

Proposed changes: Revisions to the FMLA (U.S. Department of Labor) 

Study: Balancing the Needs of Families and Employers: Family and Medical Leave Surveys, 2000 Update (U.S. Department of Labor)

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The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of unpaid leave in a 12-month period as a result of their or their family members’ serious health conditions. In some situations, they may take leave intermittently in the shortest increment of time recorded on the employer’s payroll. Employees must supply medical certification, but certifications don’t always provide employers with timely documentation because:

• The term “serious health condition” elicits confusion.
• The information employers receive from doctors can be as inscrutable as physicians’ handwriting.
• The Department of Labor (DOL) rules allow employee notification of the need for leave as late as two days after the leave has been taken.

Mark Costa, SPHR, HR director for Team 1 Michigan, a manufacturer in Albion, Mich., recognizes legitimate uses for intermittent leave. “We had one man who was taking care of his father, and sometimes he needed intermittent leave with little notice. Most employers have no problem with that.”

When people need intermittent leave, they really need it, adds Paula Brantner, program director with Working America, an AFL-CIO affiliate. “If they don’t get it, they either have to quit their jobs or endanger a loved one.”

Brantner points to a single mother in Linwood, Pa. The registered nurse responded to an AFL-CIO survey, writing, “With a severely handicapped child -- Sarah is 15 years old and cannot even sit up without assistance, requires care for all activities of daily living -- the FMLA has allowed me to balance full-time work with her care. Without FMLA, I would have been faced with the choice of either placing her in a state-run facility so I could continue working in my profession, or quitting my job and living in poverty to be able to stay home and care for her....Unfortunately, sometimes those who provide her in-home care do call out on short notice and, as Sarah cannot be left alone, ever, I am required to miss work to care for her until a replacement can be found.”

Hence, HR managers agree that intermittent leave has its place, within limits. “When employees have unpredictable, sporadic attacks of conditions like asthma, you want to give them the time they need,” reflects Debbie Robbins, HR manager for the city of Gillette, Wyo., with a workforce of 260. “But we see patterns, like intermittent leave around weekends. If employees know their conditions flare up [during those times], they should take preventive measures.”

If someone is legitimately ill, people are glad to fill in, explains Raylana Anderson, SPHR, HR director for STS, an engineering consulting firm with 650 employees in Vernon Hills, Ill. But sometimes “there are patterns, and when the work team picks up the slack, we hear muttering: ‘So-and-so is out again.’ ” Very real, significant abuse occurs, Anderson states, yet “less often than legitimate leave.”

Unscheduled, intermittent leave can be a “get-out-of-jail-free card” for marginal performers, warns Costa. “If a person was on a last chance agreement for attendance problems, they can skip work and tell us two days later that it was FMLA-protected leave. They think, ‘I have to get this under the FMLA or I’ll lose my job.’ They just have to pay for a doctor visit to get that certification on file. It’s unfortunate that some employees use the FMLA that way.”

Sometimes, if a person has a doctor certification on file stating that they may be absent two or three days a week, they call in just before their shift, complains Sally Burnell, J.D., SPHR, program director in Indiana’s Employee Relations Division.

When enacting the FMLA, legislators thought that employers’ normal sick leave policies would address many types of medical leave, says Ron Henderson, manager of health and resource management at the U.S. Postal Service, employer of 775,000 people -- 770,000 of them FMLA-eligible.

The FMLA, on the other hand, was intended to address serious or chronic conditions that fall outside the scope of most employers’ sick leave policies and entitlements and that last longer than a few days, he notes. “Under DOL regulations, though, FMLA protects illnesses as brief as a few minutes,” Henderson adds. “That just does not square with the legislative history of the FMLA.”

Tracking leave -- in some cases, for periods as short as six minutes -- can be a hassle. Seventy-three percent of the 610 HR managers who responded to a 2007 Society for Human Resource Management survey named tracking intermittent leave for employees’ chronic conditions as their biggest FMLA challenge.

Nevertheless, a survey commissioned by the DOL and conducted by Westat in 2000-01 showed that the FMLA doesn’t create significant burdens for employers. Further, the study found that intermittent leave had no effect on productivity for 81.2 percent of covered employers surveyed and no effect on profitability for 93.7 percent.

“There is no reliable empirical evidence that widespread abuse of intermittent leave occurs,” AFL-CIO officials claimed in a 2007 statement to the DOL.