In May, the U.S. Department of Labor announced that it plans to revise the rules implementing the 12-year-old Family and Medical Leave Act (FMLA), which allows certain employees to take up to 12 weeks of unpaid leave due to serious illness, or to care for a new child or seriously ill family member. Advocates on both sides of the debate are already assembling their ammunition in anticipation of a bitter fight over the rules.

On the one side are employers, who have long called for changes to the Act's regulations, which they charge are confusing, impose unnecessary costs, and encourage employee abuse. On the other side are the unions, other worker's rights groups and women's advocates and House Democrats who are urging the Department of Labor to leave the rules unchanged. They argue that the law has helped to alleviate gender discrimination in the workplace and can improve the growth and profitability of businesses.

Precedent-setting cases

Employers would do well to review their compliance under the current rules, which are the frequent subject of employee-initiated complaints and costly litigation. In fact, one of the primary reasons the Department of Labor says the rules must be changed stems from a 2002 U.S. Supreme Court case, Ragsdale vs. Wolverine World Wide Inc.

In the Ragsdale case, an employee took seven months of unpaid leave, as permitted by the employer's policy. However, the company failed to notify her in a timely manner that part of the leave qualified under the Act. The employer's failure to notify was significant because the rules require an employer to automatically grant additional unpaid leave for failing to provide notice. The Supreme Court struck down the additional leave requirement, but left intact the notice requirement. It also stated than an employer can still be penalized for failing to give proper notice. The Department of Labor has yet to issue a regulation that reflects this decision.

A more recent high-profile case, Saroli vs. Automation & Modular Components Inc., further emphasizes the need for careful compliance efforts. In the Saroli case, the court in its April decision found that the employer had constructively discharged an employee. Constructive discharge occurs when an employer creates intolerable conditions that would reasonably compel an employee to quit, regardless of whether the employer intended to force the employee's resignation. The employer in this case failed to advise the employee of her rights, granted less leave than she was entitled to receive, and forced her to choose between a demotion and a severance package upon her return to work. The case highlights the need to properly train supervisors, human resources professionals and staff about terms of the Act.

Understanding key provisions

The Act covers private sector employers that have had 50 or more employees for 20 or more work weeks in the current, or immediately preceding, calendar year. To qualify for leave, an employee must have been with the employer for at least one year, have worked at least 1,250 hours in the previous 12 months, and work at a site where at least 50 employees are located within a 75-mile area.

A qualifying employee who works for a covered employer is entitled to 12 work weeks of unpaid leave in a 12-month period for certain medical and family-related reasons. That period may be measured as a calendar year, fiscal year, or a 12-month period immediately prior, or subsequent to, the commencement of leave.

The leave may only be used under the following circumstances: to care for a new child (birth, adoption, or fostering); to care for a seriously ill immediate family member; or the serious health condition of the employee. The regulations provide strict definitions of a “serious health condition.” The regulations include strict parameters for medical certifications, employer maintenance of medical benefits for employees on leave, return to work obligations, and a host of other issues.

Employers are reminded that the Act establishes a federal minimum for unpaid leave under certain circumstances for covered employees and employers. At least 11 states have enacted laws that may require additional employee protections.

It's unclear when revisions to the Act might occur, but employers should prepare for changed obligations and a potential increase in employee complaints related to the Act. The best advice is to ensure that your firm complies with the existing requirements.

Betsy Feigin Befus is director of property operations for the Washington, D.C.-based National Multi Housing Council, and its joint legislative partner, the National Apartment Association.

EMPLOYEE USAGE OF FMLA LEAVE

  • About 35 million employees have taken leave under the FMLA between its enactment in 1993 and the conclusion of the survey in 2000.

  • 58% of those taking FMLA leave were women; 42% were men.

  • 80% of leave periods were 40 days or less; the median leave was 10 days.



Source: NMHC