After 10 years, one thing is certain: Changes in the FMLA are needed


Now that the Department of Labor has finished celebrating the 10- year anniversary of the Family and Medical leave Act (FMLA), it's time for them to roll up their sleeves and re-write the FMLA regulations. Although the law was meant to help employees balance work and family responsibilities, by allowing unpaid leave with continued health care benefits and job protection for certain reasons, its application in the business world leaves much to be desired. With 10 years under our belts, you would think that administrating the FMLA would be easy. Not so. Businesses and their human resource departments continue to struggle. There are two primary reasons for this. First, the Department of Labor regulations are too voluminous. They are nearly 100 pages long and replete with inconsistent and unclear language. Second, the regulations are not integrated with the Americans With Disabilities Act ("ADA").

Who can honestly say they have read the regulations from start to finish? And how many human resource professionals faced with a difficult FMLA problem have picked up the regulations and found them to be helpful? Those of us who have survived this daunting task know that many provisions cannot be understood in a single reading and answers are tough to find. ADA concepts like "undue hardship" and "direct threat" are foreign to the FMLA and have no meaning. Thus, conflicting rights and obligations predominate when the employee seeks leave for his/her own serious health condition. Without legislative change, businesses will continue to be plagued by uncertainty and conflicting obligations.

Take the following example: an employee commences on an FMLA leave for work-related stress. Several weeks into the leave, but before the employee indicates that he will be returning to work, the employer learns that the employee had been involuntarily committed to a psychiatric ward because he had been a barricaded gunnman. Soon after learning of this information, the employer receives a note from the employee's doctor that the employee is ready to return to work.

Under current FMLA law, the employer has no way to prevent this employee from returning to work before it can be assured that it is safe. This is because employers may not challenge a return to work certification under 825.310 even where there is a "direct threat" to safety. This provision is at odds with the ADA and the OSHA general duty clause and creates a classic "catch 22" for employers.

Another glitch in the law pertains to intermittent or reduced FMLA leave. Currently, an employee can claim a perpetual exemption from overtime work by asserting intermittent or reduced schedule leave. This is because an employee can take one day off work per week and never exhaust his/her 12 week allotment of FMLA leave. A 40 hour/week or eight hour/day restriction can accomplish what the business community has come to know as a "get out of work free card." Employers are at the mercy of employees in such situations because they may not insist on medical certification as long as the initial certification supports the need for a reduced schedule.

Although employers may transfer the employee to another position that better accommodates the schedule, under 825.204(c), the employer still must provide equivalent pay and benefits. This only serves as a disincentive to the employee to recover. Indeed, the employee often avoids higher responsibility but still collects the higher pay. Why not permit an employer to transfer the employee to a position that better accommodates the intermittent leave and permit the employer to reduce the employee's wages like under the ADA? It simply should never occur that an employee who cannot perform an essential function of the job (i.e. mandatory overtime) should be permitted to work in a lesser position and draw higher pay.

Another welcomed change would be some modification to the medical certification process. As it stands now, the process is too rigid and time-consuming. Most employers do not invoke the second and third opinion medical certification process because of its impracticalities. In many cases, by the time the certification process is completed, the employee is back to work. The prohibition against direct communications with the employee's health care provider (unless permitted under the workers compensation laws of the particular state) further slows the process. If employers could communicate directly with the employee's health care provider, as they are permitted to and actually encouraged to do under the ADA, much time could be saved.

Much time could also be saved if employers did not have to rely on health care providers not regularly employed, used or contracted by the employer. Currently employers must rely on an "unknown quantity." With every new medical exam, another practitioner must be located by the employer, though few even know what an FMLA exam entails. Why should the employer's obligation be different than it is under the ADA und workers' compensation law in this regard? It makes no sense at all that the employer should not be able to send its employee to its industrial clinic, which is familiar with the employer's business and in a good position to determine whether the employee can or should work.

Attendance incentives have been affected by the FMLA as well. Perfect attendance rewards were a way to encourage and reward employees who had perfect attendance. With the adoption of the PMLA, however, employers have not been able to use such incentives effectively because any time off that qualified as PMLA time could not be counted against an employee and could not be used to deny the employee perfect attendance. So, even an employee who had never received the incentive in the past because he or she did not have perfect attendance for reasons unrelated to the FMLA suddenly could qualify for perfect attendance if absences were For FMLA covered reasons. The FMLA clearly was not passed to provide employees with less than good attendance the ability to now qualify for perfect attendance rewards. Perfect attendance should mean just that. Employers should be able to evaluate workers differently based upon their presence and contribution at work. Job protection is one thing but benefits preference is another.

Suffice it to say that the FMLA Regulations are not a work of clarity. There will be more growing pains as the cases work their way up to the appellate courts and ultimately to the Supreme Court even if Congress chooses not to reduce the minimum number of employees it will take for private sector coverage from 50 to 25 as some believe it will. Change is necessary, but whether change will occur or be for the better is still up in the air.

By DANIEL G. COHEN Pilchak Cohen & Tice, P.C. and TERRY MCLEOD Corporate Resources Group

ABOUT THE AUTHORS

Daniel G. Cohen is a shareholder with the Farmington Hills law firm of Pilchak Cohen & Tice, P.C., where he concentrates his practice representing employers exclusively in the areas of labor law and employment litigation. A large part of his practice involves the assistance of human resource professionals with the administration of workplace policies and procedures with an emphasis on the ADA, FMLA, workplace violence, sexual harassment, substance abuse and employee benefits. He has briefed congressional staffers and members of the U.S. House of Representatives and the U.S. Senate on issues related to the Americans with Disabilities Act and the Family and Medical Leave Act. Mr. Cohen is a member of the State Bar of Michigan, labor and employment law committee; the American Bar Association, labor and employment law committee; and the Oakland County Bar Association.

Terry McLeod is the president and founder of Corporate Resources Group, Inc. He possesses over 30 years of plant, divisional, corporate and international experience in the human resources field. He is a seasoned facilitator and has participated as a guest speaker on workshop panels covering a variety of human resource topics.

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