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Happy Birthday, FMLA

But Is There Very Much for Local Employers to Celebrate?

In February, the Family and Medical Leave Act (FMLA) celebrated its 20th birthday.  Signed by President Bill Clinton on Feb. 8, 1993, the FMLA has provided many employees with up to 12 weeks of job-protected leave in the event of their own serious health conditions; the serious health conditions of their parents, children, or spouses; and the birth, adoption, or placement in foster care of a child.

And to celebrate this anniversary, legislators, the Department of Labor (DOL), and family advocates released a report on the use of FMLA leave and its impact on American companies and their employees.

According to the DOL, the report shows that the FMLA “has had a positive impact on the lives of millions of workers and their families without imposing an undue burden on employers.”

Moreover, according to the survey, “most employers report little negative impact of the FMLA.” Only 14% of covered employers reported that it was “somewhat difficult” to comply with the law, and only 1% reported that it was “very difficult.” The DOL contracted with a consulting firm to conduct and report the survey results, and the consultants interviewed more than 1,800 worksites to come up with their determination.

Hmmm. I don’t know precisely how the employers interviewed in this survey were selected, but I do know that, although the survey reached out to nearly 7,000 employers, only slightly more than 1,800 employers responded. And the consultants interviewed both covered employers and employers who were not covered under the FMLA because they employ fewer than 50 workers. So the survey actually relied upon fewer than 1,800 companies for its conclusion about the challenges posed by compliance with the FMLA.

The technical report on the survey is full of statistical information to support the consultant’s conclusion that dealing with the FMLA is not a problem for most employers, but I can tell you that that’s not been my experience. For most of the employers that I talk to, FMLA issues are their number-one headache. And while I’m sure that the FMLA has indeed had a positive impact on the lives of workers and their families, I don’t buy the DOL’s conclusion that compliance with this statute is relatively easy for most employers in the U.S. That sentiment is just not borne out by my experience and the experience of my peers who also represent employers in labor- and employment-related matters.

So when we hear that worker organizations such as the National Partnership for Women and Families see the FMLA as being only a “first step,” and that they are proposing an expansion of the FMLA to provide for paid leave and extended coverage for parents-in-law, grandparents, grandchildren, siblings, domestic partners, same sex-spouses, and victims of domestic violence, I have concerns. It’s hard enough for companies to handle extended leaves of absence or intermittent leaves for employees currently covered under the FMLA, never mind expanding the reasons to include these other groups. And providing paid FMLA leave would eliminate one of the few incentives that employers have to get their absent employees to return to work.

At the same time that it celebrated the FMLA’s 20th birthday, the DOL issued final regulations regarding qualified exigency leave for employees whose parent, child, or spouse is called to active duty in the military, and military caregiver leave for employees whose parent, child, or spouse returns from active duty with a serious injury that necessitates extended leave.

If you are a covered employer (more than 50 employees within a 75-mile radius), you may need to revise your FMLA policy, depending upon the level of detail in your current policy. And covered employers will definitely need to put up a new FMLA poster, which is available from the Department of Labor website at www.dol.gov/whd/regs/compliance/posters/fmla.htm.

The final regulations went into effect last week, so take steps now to update your policy if necessary and obtain a copy of the new poster. The DOL also issued an administrative advisory that clarifies when an employee may take a leave of absence related to the serious health condition of an adult child. A fact sheet on that advisory is available at www.dol.gov/whd/regs/compliance/whdfs28k.htm.

And if you’re concerned about the possibility that your current FMLA headaches might turn into migraines, you should contact your senator, congressional representative, or the legislative committee of your local Chamber of Commerce. Meanwhile, if you have FMLA headaches or questions about the final regulations or the adult-child advisory, reach out to your labor and employment counsel for advice.

Susan Fentin is a partner in the management-side labor and employment law firm Skoler, Abbott & Presser, P.C., and teaches master classes on the FMLA and ADAAA; (413) 737-4753.


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