What's up with the FMLA?

Wednesday, June 22, 2005 at 12:00am

The Family and Medical Leave Act has been around for more than 12 years now, yet it's not much easier to understand or comply with now than when it was first passed. Over the years, many suggestions have been made - and much legislation has been proposed - to simplify, clarify, limit and/or expand the law's requirements. Lately, the discussions have become particularly heated, largely because the U.S. Department of Labor (DOL) has delayed - again - its long-expected revisions to its FMLA regulations.

Employer and labor groups recently held competing press conferences to make their case for or against revisions.

Employer groups are hoping that the DOL will (1) back off from some of its regulations that impose requirements beyond those that appear in the FMLA itself, and (2) revise various sections of the regulations that have been ruled invalid by several federal courts of appeals.

Organizations such as the National Partnership for Women & Families are convinced that employers want the DOL to "roll back the FMLA."

So what is all the hubbub over the FMLA about?

Let's take a look at some of the regulations that employers struggle with (or object to) the most, those that appeals courts have overturned, what can or should be done about them, and what you should do to protect your company from FMLA lawsuits until that happens.

A recent survey from the Employment Policy Foundation found that FMLA compliance cost employers $21 billion in 2004 alone. According to the National Coalition to Protect Family Leave (an industry group formerly known as the FMLA Technical Corrections Coalition), a substantial portion of those costs can be attributed to problems with the current FMLA regulations. Although it's obviously impossible to eliminate the cost of complying with the FMLA, there's a good argument that it can be reduced by making some modest modifications to the existing regulations.

It should be remembered that the current regulations were issued during the Clinton administration, when liberal interpretations of federal statutes were the norm. Most employers want no more than for the DOL to revise those regulations to accurately reflect the requirements imposed by the actual law. Currently, it's indisputable that the regulations impose additional requirements far beyond the law's original intent.

That fact can be evidenced by reviewing the many federal court decisions in which parts of the DOL's regulations have been overturned. The most visible of those decisions was a 2002 opinion from the U.S. Supreme Court that struck down a DOL regulation stating that FMLA leave didn't start to run until it was designated as such by the employer. The effect of that regulation was to let employees take more than 12 weeks of leave per year (potentially far more) if the employer didn't specifically designate the time off as FMLA leave when it was taken.

Numerous federal appeals courts have also struck down other portions of the regulations. Although those court cases are encouraging, the problematic regulations continue to be in effect in other jurisdictions. If for no other reason, the regulations should be revised to ensure that they're applied uniformly in all jurisdictions. Beyond that, some of the most desirable revisions include:

  • narrowing the definition of the types of serious health conditions for which leave is allowed, restoring it to Congress' original intent of covering only truly serious injuries or illnesses;
  • clarifying the definition of the term "incapacitated;"
  • allowing employers to track FMLA leave in half-day increments;
  • streamlining record-keeping requirements;
  • giving employers more authority to check with an employee's doctor about the employee's condition and how much time she needs to recover from it.

    In its latest semiannual regulatory agenda, the agency seemed to indicate that it planned to issue proposed revisions to the regulations by the end of May 2005. But as of this writing, no revisions had been released.

    So how are you supposed to comply with the FMLA in the meantime? The best you can do is to create a detailed FMLA policy and paperwork-handling procedure, become intimately familiar with the regulations (which, for all their complexity, are at least set out in a fairly reader-friendly format), and document everything meticulously. You may also want to keep track of any court decisions in your jurisdiction that have invalidated parts of the regulations so that you aren't providing employees with more rights than required.

    Finally, any time an issue arises about whether an employee is entitled to leave, it's wise to ask yourself this: Will it cost you more to lose this employee or keep her? A closely related question is: Will it cost you more to give her leave she may not be entitled to - or spend years defending a lawsuit for failing to do so? Until the DOL or Congress steps up to limit or clarify the law's application, you may be stuck with choosing the lesser of those two evils.

    Kara Shea represents businesses in the area of labor and employment law in Miller & Martin's Nashville office and is an editor of M. Lee Smith Publishers' monthly newsletter Tennessee Employment Law Letter. More on human resources can be found at HRhero.com.

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