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Employers hope input will fix flaws in leave law

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The U.S. Department of Labor is likely to get plenty of input from employers and their representatives in response to its request for public comment on the Family and Medical Leave Act and its regulations.

Observers say employers have long complained that the current regulations are unclear, particularly those involving serious medical conditions; unscheduled, intermittent leave; and medical certification procedures.

Conflicting federal court decisions have further exacerbated the situation, they say. But many observers say they remain pessimistic about the likelihood of any substantive changes in the regulations (see story, page 6).

Noting that it has been more than a decade since the DOL first published regulations to help employers comply with the FMLA, the DOL said it is seeking comments on numerous technical as well as general issues related to the FMLA.

Under the FMLA, an employee at an organization with at least 50 workers can take up to 12 weeks of unpaid job-protected leave annually to care for a newborn, a newly adopted child or a seriously ill family member, or to recover from a medical condition. Employers are required to maintain group health benefits during the leave, and, once the leave ends, to restore the employee to the same or an equivalent job.

According to the DOL, an estimated 6.1 million workers took FMLA leave in 2005.

"I think the original intent of it is something that we as employers all agree with," said Debbie Robbins, human resources director for the city of Gillette, Wyo. "But there's always that 5% of your employee base that wants to push the limits."

Employers have few concerns about the "family" part of the FMLA, which lets workers take time to care for a newborn or adopted child, say observers. Their problems instead lie with the ambiguity--and abuse--of provisions involving medical leave.

"A lot of employees work the system," and in instances where there are absenteeism issues, they "wave the FMLA flag," rather than risk disciplinary action or termination, said David S. Mohl, an Atlanta-based senior consultant with Willis National Employee Benefits Practice.

"We've had people go out on extended (FMLA) leave" when they are working unsuccessfully under performance plans to correct problems with their work, said Linda Lulli, associate vp for human resources at Bryant University in Smithfield, R.I. "We're starting to see that happen more frequently," she said.

Clarity for those administering the leave would be useful, she said.

A particular sore point with employers is the use of unscheduled and frequent intermittent leave. Observers note that under current regulations, employers must permit employees to take intermittent FMLA leave in increments that are as small as the smallest time period their employer's payroll system uses to account for absences, which in some cases can be as small as six minutes.

Permitting employees to take time off in such small increments "creates an incredible burden from an administrative standpoint as well as just from a business operational standpoint," said Shelly Wolff, Stamford, Conn.-based North American practice leader for health and productivity at Watson Wyatt Worldwide.

"It takes quite a bit of effort" on the part of supervisors to make sure intermittent leave is not being abused, said Gary Bushman, assistant human resources director for the city of Provo, Utah, where employees can take intermittent leave in 15-minute increments.

"I think our biggest issue with the FMLA is that it doesn't allow us to get our arms around employees who abuse it"--particularly intermittent FMLA, where it can be easily granted--"and then we can't control it," said Ms. Robbins. "I'd like to see the ability to tighten it up a little bit more," she said.

Business groups would like the DOL to allow employers "to charge a minimum of a few hours for each instance of intermittent leave," as well as instituting a requirement that employees give advance notice, unless there is an emergency, said Geoffrey Manville, a principal in Mercer Human Resource Consulting's Washington office.

Another problem is the definition of a "serious" medical condition. Observers say the regulations, which indicate that employees are eligible for leave if they are incapacitated for more than three days and are under continuing medical care, has been abused to cover minor conditions such as coughs, colds and headaches.

Contributing to the confusion is that federal courts have differed on the issue of whether a particular condition should be considered serious, said Arthur Silbergeld, a partner with Proskauer Rose L.L.P. in Los Angeles.

The procedures in certifying an employee's eligibility for FMLA leave have been an issue as well.

"An employer can require medical certification for an employee or a family member's serious health condition, but the rules prohibit direct contact between an employer and the employee's or family members' health care provider without the employee's consent. So when a certification is incomplete...the employer has to send the employee back to the provider," said Mr. Manville.

"You'd be shocked at the forms that employers get" from physicians, said Victoria J. Schweitzer, senior vp in Aon Consulting's health and productivity practice in San Francisco. She said she has seen certification forms that say that an employee gets tired and should be allowed "as much FMLA as she needs. How can an employer plan or schedule with that? It's impossible."

"Business groups would like the DOL to allow employers to contact the provider to confirm the authenticity of certification and legitimacy of the employee's claims," said Mr. Manville.

Observers say if the employer decides to dispute the request, it must obtain an opinion from its own doctor. And if there is a disagreement between the employee and the employer's physician, a third, neutral doctor must be agreed upon to issue an opinion as well--with both the employer's doctor and the neutral physician compensated by the employer, say observers.

This "can be too costly...and not worth the effort," said Jason Straczewski, director, human resources policy at the National Assn. of Manufacturers in Washington.

In fact, "many times when you get to the third opinion, the employee's already back at work," said Matt Morris, an employment law consultant with Lincolnshire, Ill.-based Hewitt Associates Inc.

E-mail comments may be sent to the DOL at whdcomments@dol.gov no later than Feb. 2, 2007.