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Take Two on Time Off
Sweeping Changes Debated for Landmark Family and Medical Leave Act

By Nancy Trejos
Washington Post Staff Writer
Thursday, April 24, 2008

This year marks the 15th anniversary of the landmark Family and Medical Leave Act, which made it possible for many workers to take unpaid job-protected time off to care for their newborn children or sick relatives. But instead of celebrating, workers' rights advocates and the Bush administration are battling over what would be the most sweeping revisions ever to the law.

Under proposals being considered by the Labor Department, workers would have to tell their bosses in advance when they take nonemergency leave, instead of being able to wait until two days after they left. They would have to undergo "fitness-for-duty" evaluations if they took intermittent leave for medical reasons and wanted to return to physically demanding jobs. To prove that they had a "serious health condition," they would have to visit a health-care provider at least twice within a month of falling ill. What's more, employers would have the right to contact health-care providers who authorized leave.

These and other proposed changes have set off a fierce debate. More than 4,000 comments were submitted to the Labor Department as of Friday, April 11, the deadline for the public to weigh in. They came from labor unions, religious organizations, women's rights groups, small and large business owners and employees across the country.

There were queries such as these, from Rita Palmer at the Planet Hollywood Resort and Casino in Las Vegas: "What alternative does an employer have when an employee must leave the country for an ill parent? What if abuse is suspected? We had an employee leave for Italy every summer and submitted a WH-380 from the mother's attending physician."

And pleas, such as these, from Richard Kirk, chief steward of the Sacramento Area Local American Postal Workers Union: "Given the outsourcing and the loss of jobs overseas, Americans must hold on to what we have today, for fear of losing it tomorrow. FMLA is but one way to ensure employees have a 'balanced' playing field."

At the crux of it all, said advocates of the FMLA and of its revisions, is the uncertainty fostered by the wobbly economy. Workers want assurances that their jobs will be safe even when they have family or medical emergencies. Businesses want to make sure they are operating efficiently, getting the most for their money.

"There's a lot of interest in getting the debate and discussion going on how to make things better for everyone, whether it be employers, employees or families," said Cara Welch, director of Public Policy for WorldatWork, an association of personnel professionals. "They are highlighted now with the focus on a presidential election and with an economy that is a little bit more on a downward slope."

Any changes would have widespread impact. In 2005, the last year for which the Labor Department has data, nearly 7 million people used the FMLA, which allows for as much as 12 weeks of unpaid leave. Workers rely on the FMLA, which applies to companies with at least 50 employees, because many companies do not offer paid sick leave or disability coverage.

There is no federal law requiring paid sick leave. The D.C. Council voted last month to make the District the second city in the nation to mandate some paid sick leave. San Francisco is the other city with such a law. According to the Bureau of Labor Statistics, 57 percent of workers in private industry had access to paid sick leave in 2006.

Some changes have been made. In January, Congress passed and President Bush signed an act that allowed military families to take extended leave to care for an injured service member.

That has buoyed other efforts. Democrats in Congress have introduced a number of bills that would guarantee more time off when family needs arise. The Healthy Families Act, for one, would give workers seven days of paid sick leave to care for their own medical needs as well as those of a family member. The Balancing Act would provide paid family medical leave, benefits for part-time workers and time off for activities that require parental involvement, such as medical appointments.

Although Democrats control Congress, it is unclear how far such bills would go. Even if they made it through the House and Senate this session, getting past a Republican in the White House could prove difficult, according to a Democratic staff member in the House and some FMLA advocates.

"There's growing support among policymakers and growing understanding for the importance of these measures," said Vicky Lovell, director of employment and work/life programs at the Institute for Women's Policy Research, a Washington nonprofit organization promoting women's issues. But, she added, "once a new administration is in place that would definitely add a lot of uncertainty."

The White House, meanwhile, is intent on putting its stamp on the FMLA. Assistant Labor Secretary Victoria Lipnic said her goal is to finalize the new rules during this administration, but she said it would take a long time to go through all the comments, which the department is required to do. She also acknowledged that although the Labor Department has the authority to rewrite regulations, Congress could stall or halt any changes by refusing to provide money for them. "I think it has a pretty good chance of being battled down," Rep. Lynn Woolsey (D-Calif.) said.

But to Lipnic, the proposals are simply a way to "clean up" the regulations, which have at times been so vague as to spark lawsuits. The proposals are also, she said, an attempt to end some abuses.

"Unfortunately the current regulations went so far as to say that employees don't have to notify employers until two days after they are absent," she said. "Honestly, I don't think that was the congressional intent."

That has been the biggest complaint among employers, who argue that the FMLA has too often been used to cover up tardiness or absenteeism.

"The act said specifically that the interests of employers and employees should be kept in balance," said Marc Freedman, director of labor law policy for the U.S. Chamber of Commerce. "Over the last 15 years, we've seen too many employees take advantage of the medical leave."

Others say even the Labor Department's proposals fall short of clearing up inconsistencies.

Lisa Horn, manager of health care at the Society for Human Resource Management, a lobby group, said she had hoped the Labor Department would more clearly define a serious health condition. In a survey of about 3,000 members, four out of 10 employers said they granted FMLA time off even though they did not believe the reasons were legitimate because they thought the law obligated them to do so.

"Ailments that Congress back in 1993 didn't deem a serious health condition now can be," she said. "We've heard examples of ingrown toenails."

To supporters of the law, instituting the changes would make it easier for employers to deny workers their leave. They also argue against requiring so many doctors' visits because it could cost employees more time and money. They also say letting employers consult with employees' doctors is a violation of privacy.

"It makes no sense to me," said Woolsey, who has proposed a bill to expand family and medical leave. "It's going to make it easier for employers to withhold family and medical leave by putting in all kinds of structure that isn't necessary . . . They don't need to make it more difficult. It's been working very well."

Chante Lasco, 33, a lawyer in Easton, thinks the current law is inadequate and she favors Democrats' efforts to provide some paid leave.

When she found out she was pregnant, she knew she was legally entitled to 12 weeks off from her job as a Dorchester County prosecutor, but with bills to pay, the loss of her salary would have been difficult for her and her husband, who is a nurse.

"It was ridiculous," she said. "Everybody knows what's involved when you give birth to a baby. You can't just go back to work the next day."

She considers herself lucky because she was able to cobble together enough sick leave to get a salary for part of the time she was out. Others, she acknowledged, are not so fortunate.

Lipnic said her goal is not to take any leave away from workers.

"Our goal has been to really smooth out the communication between employers and employees and health care providers," she said. "I certainly believe this proposal will make the law better for everybody."

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