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Leave Rules May Tighten

By Cindy Skrzycki
Tuesday, February 19, 2008

Employers would get more authority to check on the reasons workers give for excused absences, under proposed changes to the U.S. family and medical leave regulations, a rule-tightening sure to trigger a political firestorm.

The 127-page document issued Feb. 11 is probably the last chance the Bush administration will have to fine-tune rules for the law, which allows millions of workers to take as much as 12 weeks of unpaid leave over a year. Companies have been pushing for years to narrow the reach of the law, while Democrats, who control Congress and hope to take back the White House, want it expanded.

One major change would allow employers to contact health-care providers who authorize the leave, access they don't have now. Another would require workers to provide more frequent documentation of chronic conditions.

"It's not our intent to make it harder for people to take leave," said Assistant Labor Secretary Victoria Lipnic, who administers the law. She said the proposals are designed to clear up ambiguities in the current rule, which applies to workers at companies with 50 or more workers.

Employer groups didn't get everything they lobbied for. The rule doesn't redefine "serious health condition," which is now interpreted liberally. Lipnic said she thinks Congress would have to make that change.

Worker rights groups regard most of the changes as rollbacks.

"These are regulations that will make it harder to take advantage of the law," said Debra Ness, president of the National Partnership for Women & Families, an advocacy group in Washington. "You will end up having more people not protected by the law."

An estimated 7 million employees used the leave policy in 2005 to take care of a baby, a family member or a serious personal illness. The proposed changes would cost about $26 million the first year, the government said, as companies spend more to notify employees of their rights and workers pay for more trips to the doctor to prove they are eligible.

Since President Bill Clinton signed the law in 1993, it has been the subject of hundreds of complaints, court cases and competing studies about its cost and effectiveness.

Many workers said the law saved them from financial ruin because their job and health insurance were protected while they were on leave.

Some employers complain about the effect of sudden, unscheduled leaves. Honda North America said such absences disrupt job rotations on manufacturing lines, require the hiring of extra workers and cause lost productivity.

The Torrance, Calif., subsidiary of Honda said 20 percent of the 178,003 hours of short-term leave taken in 2006 was for headaches.

Groups representing workers said regulators have relied on anecdotal complaints from companies to shape the proposal, instead of coming up with empirical data.

Southwest Airlines, the largest low-fare air carrier, said its employees commonly take intermittent, unscheduled leave, which doesn't require an explanation for up to two days after it is taken.

Abuse of the law "has made coming to work optional for too many employees," the Dallas company said.

Comments on the new proposal are due by April 11.

In some cases, the proposed changes try to clear up ambiguities in the current policy. One would require an employee wanting to use vacation time to get paid for family leave to follow the company's paid-leave policy, a practice not now clearly defined.

The proposal would clear up a debate on whether employees taking family leave would still be eligible for perfect attendance awards. They probably won't.

As Honda put it: "The purpose of a perfect attendance bonus is to reward those who are at work."

Lipnic said there is some urgency to complete the rulemaking because it contains a new provision for military families that would allow 26 weeks of leave for the care of a service member with a serious illness or injury.

The political landscape may be another reason for the administration's urgency. A Senate subcommittee held a hearing on the law Feb. 13, with Sen. Christopher Dodd (D-Conn.) calling for an expansion to include "at least eight weeks" of paid family leave.

Democratic presidential contenders Sens. Hillary Clinton of New York and Barack Obama of Illinois both support expanding the family leave program.

Cindy Skrzycki is a regulatory columnist for Bloomberg News. She can be contacted atcskrzycki@bloomberg.net.

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