[Senate Hearing 109-229]
[From the U.S. Government Publishing Office]
S. Hrg. 109-229
ROUNDTABLE DISCUSSION: THE FAMILY AND MEDICAL LEAVE ACT: A DOZEN YEARS
OF EXPERIENCE
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
EXAMINING THE FAMILY MEDICAL LEAVE ACT
__________
JUNE 23, 2005
__________
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Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
MICHAEL B. ENZI, Wyoming, Chairman
JUDD GREGG, New Hampshire EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee TOM HARKIN, Iowa
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada PATTY MURRAY, Washington
ORRIN G. HATCH, Utah JACK REED, Rhode Island
JEFF SESSIONS, Alabama HILLARY RODHAM CLINTON, New York
PAT ROBERTS, Kansas
Katherine Brunett McGuire, Staff Director
J. Michael Myers, Minority Staff Director and Chief Counsel
(ii)
?
C O N T E N T S
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STATEMENTS
THURSDAY, JUNE 23, 2005
Page
Enzi, Hon. Michael B., Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Bravo, Ellen, coordinator, Multi-state Working Families
Consortium, Milwaukee, WI...................................... 4
Prepared statement........................................... 5
Ness, Debra, president, National Partnership for Women and
Families, Washington DC........................................ 7
Prepared statement........................................... 8
Marsden, Jamie, director of human resources, City of Gillette,
WY, on behalf of the Society for Human Resource Management
(SHRM)......................................................... 16
Prepared statement........................................... 17
Prybutok, Robert, president, Polymer Technologies, Newark, DE.... 19
Prepared statement........................................... 20
Willman, Sue, attorney, Spencer Fane, Kansas City, MO............ 22
statements................................................... 23
Dohnalek, Laurie, nurse manager, Georgetown University Medical
Center, Washington, DC......................................... 44
Prepared statement........................................... 45
Lancaster, Patrick, vice president, chief administrative officer
and secretary, American Axle & Manufacturing, Detroit, MI...... 47
Prepared statement........................................... 47
Alexander, Marie, ceo, Quova, Inc., Mountain View, CA............ 53
Boyd, Sandra, vice president, human resources policy, National
Association of Manufacturers (NAM)............................. 53
Prepared statement........................................... 54
Payne, Jeffery, director, human resources, Palmetto Health,
Columbia, SC, on behalf of the American Society for Healthcare
Human Resource Administration.................................. 56
Prepared statement........................................... 57
Heymann, Jody, M.D., PH.D., director of policy, Harvard Center
for Society and Health, Cambridge, MA.......................... 58
Prepared statement........................................... 59
Mulvey, Janemarie, president and chief economist, Employment
Policy Foundation, Washington, DC.............................. 62
Philips, Patti, working mother and FMLA beneficiary, Atlanta, GA. 63
Prepared statement........................................... 64
Barbanel, Cheryl, M.D., MBA, MPH, FACOEM; president, American
College of Occupational and Environmental Medicine; chief of
occupational and environmental medicine, Boston Medical Center;
medical director, Occupational Health Center, Boston
University, Boston, MA......................................... 65
O'Flaherty, Susan, vice president and manager, Disability
Management Services of Bank One, Chicago, IL................... 66
Prepared statement........................................... 66
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, opening statement............................... 83
(iii)
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Response to questions of Senator Enzi by Patrick Lancaster... 86
Response to questions of Senator Enzi by Sandy Boyd.......... 88
Response to questions of Senator Kennedy by Jeff Payne....... 88
Response to questions of Senator Enzi by Marie Alexander..... 91
Response to questions of Senator Enzi by Susan O'Flaherty.... 93
Response to questions of Senator Kennedy by Cheryl Barbanel.. 94
Response to questions of Senator Kennedy by Laurie Dohnalek.. 97
Response to questions of Senator Kennedy by Janemarie Mulvey. 98
Response to questions of Senator Kennedy by Robert Prybutok.. 99
Response to questions of Senator Kennedy by Jamie Marsden.... 100
American Organization of Nurse Executives.................... 102
ROUNDTABLE DISCUSSION: THE FAMILY AND MEDICAL LEAVE ACT: A DOZEN YEARS
OF EXPERIENCE
----------
THURSDAY, JUNE 23, 2005
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:12 a.m., in
room SH-216, Hart Senate Office Building, Hon. Michael B. Enzi
(chairman of the committee) presiding.
Present: Senators Enzi, Isakson, and Clinton.
Opening Statement of Senator Enzi
The Chairman. Good morning. I want to thank everyone, and
this is a great crowd, for joining us for this roundtable
discussion of the Family and Medical Leave Act.
For all of us, time is a fixed and limited commodity, and
setting priorities is a challenge that we have to deal with
every day. For the parent of a seriously ill child, however,
things are much different, because every moment spent caring
for a son or daughter who is battling a serious illness is more
precious than time spent in any other pursuit of life. As a
parent and now as a grandparent, I know that if a child is
seriously ill, the rest of the world stops and nothing is more
important than providing care for that child and the attention
that they need to get well.
Those are the realities that Congress recognized a dozen
years ago when it enacted the Family and Medical Leave Act. The
act was intended to assist individuals and families that are
faced with serious health issues or blessed with a new child by
providing job-protected unpaid leave for up to 12 weeks for
those who qualify. Now, in the vast majority of cases, the
leave provided for under the act has worked well and the
response of both employers and employees to the terms of the
act has been positive.
However, no system is perfect and, as with any piece of
legislation, there have been some unforeseen and unintended
issues with its implementation. In each instance, the few areas
of concern have nothing to do with the statute itself but are
confined to the regulations that have been promulgated to
implement the statute. This should come as no surprise. In any
legislative undertaking, the devil is in the implementing of
regulations. Sometimes it is in the details. The regulations
implementing the FMLA have been largely untouched since first
authored following the passage of the act. Under such
circumstances, it might make good sense to revisit those
regulations in the light of intervening experience.
We must also bear in mind that when Congress enacted the
FMLA there were genuine concerns about weighing the needs of
employees confronted by serious health issues, the burdens
which their absence might place on their coworkers who must
shoulder the additional work, and the legitimate need of
employers for a steady and reliable work force. Those concerns
are equally important today. The last 12 years have
demonstrated that the implementation of FMLA has been largely
successful but not entirely without problem. For example, in
some instances, the unpredictability of leave often creates
significant scheduling difficulties for employers, work
distribution problems for coworkers, and service issues for
consumers.
Now, the impact is greatest on the smallest businesses
covered by the act. We need to acknowledge these facts and ask
ourselves if we are accommodating these concerns in an
appropriate way.
Also, we need to be candid and to recognize that there will
always be those few individuals who choose to take unfair
advantage and abuse the rights provided for them in the
statute. While the number of such individuals may appear small,
we cannot discount their disproportionate impact on employee
morale and productivity and, most importantly, on the rights of
their coworkers. Again, we need to acknowledge this reality and
ask if there are ways to safeguard against such abuse.
Now, for millions of American workers, the FMLA is a
valuable tool for helping them meet the demands of both work
and family. The better any system is understood, the better it
runs. Therefore, our efforts should focus on improving workers'
and employers' understanding of how the FMLA is intended to
operate. That requires clear definitions and plain, practical
procedures. We need to be willing to revisit the original
implementing regulations to ensure that this goal has been
adequately met.
The most practical way to achieve these ends is by
reviewing the actual experiences of those affected by the
statute over the last dozen years. That is where you come in. I
am looking forward to today's roundtable discussion and the
views of our panelists on how the Family and Medical Leave Act
is performing in the real world. Your views on how it has
helped and how its provisions should be clarified will provide
us with the perspective necessary to make the Family and
Medical Leave Act more responsive to the needs of employers and
employees and their families.
So I thank all of you for being here today. We have decided
to use a roundtable format for this. It is something we kind of
invented in this committee, rather than the formalized hearing
format, in the hopes of encouraging greater participation. We
would never be able to have this many people as witnesses at a
hearing. And it also allows the participants to respond and
elaborate on points raised by each other.
Now, to those of you who are new to the format, let me
briefly review a few of the administrative items. To allow all
the invited participants as much time as possible for
discussion, there won't be any additional opening statements
once Senator Kennedy has given his opening statement--and we
will interrupt for that when he gets here--or by the
participants. Any statement that you want to submit will become
a part of the record, but we want to move on to the questions.
In our joint letter of invitation, we asked that you be
prepared to discuss three questions concerning the Family and
Medical Leave Act.
Following the introduction of the participants, we will
begin with the first question. If you wish to respond to the
question or at any time enter into the discussion, please take
your nameplate and stand it on end and somebody will record the
order in which those are raised so that we can follow that kind
of a seniority procedure. I will then recognize you for the
purpose of speaking on the issue. I will do my best to
recognize each of you in the order that the nameplate was
turned up.
Now, as we have a large number of participants, both
Senator Kennedy and I would ask that you try to be concise with
your comments and responses. To aid in this process, we use the
time clocks in order that everybody has an opportunity to fully
participate. It gives you a little bit of warning before it
goes to red, but we would appreciate it if you would stay
within the time lines. We are limited on overall time, and we
would like to get to discussion on all three of the questions
today that we have mutually agreed on.
Now, I would like to thank the panelists for being with us
today. I know that many of you have traveled great distances
and taken time out of your busy schedules to be with us today,
and we do appreciate your participation.
I will introduce the participants.
Our first panelist today is Jamie Marsden, who is the
director of human resources for the City of Gillette, Wyoming,
a place very near and dear to my heart. That is where I live. I
used to be the mayor of that city.
The next person is Ellen Bravo, who is the coordinator of
the Multi-state Working Families Consortium in Milwaukee,
Wisconsin.
Dr. Cheryl Barbanel is the chief of occupational and
environmental medicine and medical director of Boston
University Occupational Health Center.
Robert Prybutok is the owner of Polymer Technologies, a
small business which employs about 90 people in Newark,
Delaware.
Debra Ness is the president of the National Partnership for
Women and Families in Washington, DC.
Sue Willman is an attorney with Spencer Fane in Kansas City
and maintains a survey of litigation under FMLA.
Laurie Dohnalek is a nurse manager specializing in
inpatient oncology and blood and marrow transplant at
Georgetown University Hospital here in Washington, DC.
Sandra Boyd is the vice president of human resource policy
for the National Association of Manufacturers.
Marie Alexander is the CEO of Quova, Inc., of Mountain
View, California.
Patrick Lancaster is the vice president, chief
administrative officer and secretary of American Axle &
Manufacturing in Detroit, Michigan.
Patti Philips is a working mother and FMLA beneficiary from
Atlanta, Georgia.
Dr. Janemarie Mulvey is the president and chief economist
of the Employment Policy Foundation in Washington, DC., and
author of the recent report, ``The Costs and Characteristics of
Family and Medical Leave.''
Susan O'Flaherty is the vice president and manager of
Disability Management Services of Bank One, Chicago, Illinois.
Dr. Jody Heymann is the director of policy for the Harvard
Center for Society and Health in Cambridge, Massachusetts.
And Jeff Payne is the director of human resources at
Palmeto Health Hospitals in Columbia, South Carolina.
So we certainly have a cross-section of the United States
and quite a variety of occupations and expertise and
viewpoints, both beneficiaries and employers.
So let me turn to the first of our agreed-upon questions
for the panelists. The first question reads as follows: What
has been your own experience or that of your company with the
Family and Medical Leave Act and its regulations?
Always early in the morning people are kind of hesitant to
turn their cards up.
Ms. Bravo, do you want to start us off?
STATEMENT OF ELLEN BRAVO, COORDINATOR, MULTI-STATE WORKING
FAMILIES CONSORTIUM, MILWAUKEE, WI
Ms. Bravo. Thank you very much.
My name is Ellen Bravo and I coordinate a multi-state
consortium, eight State coalitions that are working to expand
access to family and medical leave. Before, I was the director
of 9to5. So for 22 years I ran either the local office or the
national office. And, you know, in many ways a nonprofit is a
small business. I want to say for the record, it is
inconvenient when people get sick and even more so when they
get pregnant when they are on the job. I wish we had a way of
taking care of these things. I, for one, have tried to train my
children, for example, for many years only to get sick when it
was convenient, and I failed. And I imagine if any of you know
how to solve that problem, I would be glad to hear from you.
But what we found at 9to5 and as many other enterprises, I
think, is that as inconvenient as it might have been to have
someone out, it was much more inconvenient to lose them
altogether or to have them at work when they were ailing or
when they were preoccupied with a loved one. So we found it to
be good business practice to have policies that were in fact
much more generous than the Family and Medical Leave Act,
including paid leave, for example.
And I remember, the person who was the founder and
executive director before me, Karen Nussbaum, three times
adopted a child and three times had lengthy paid leaves. It was
hard when she was gone, but it was also a development
opportunity for people like me and for other staff, who got to
do things we otherwise wouldn't have done and were in a better
position to assume leadership when those positions opened up.
I also want to share--I was on the Bipartisan Commission on
Leave appointed by Congress and co-chaired by Senator Dodd, to
examine the impact of the Family and Medical Leave Act on
employers and employees. In the packet I brought from our
consortium, I have a summary of our findings. And, you know,
this was a very interesting body. Six people were on it because
they worked really hard to pass this law, and six people were
on it because they worked really hard to stop the law from
passing. We didn't know if we would be able to sit in a room
together, much less come up with a unanimous report. And guess
what happened? During the time that we met, three of the
opponents experienced profound problems related to family and
medical leave that challenged their own opposition.
One of them knew people who were in the bombing of the
Federal Building in Oklahoma City and understood that family
members of survivors needed time off to take care of them. A
woman's daughter had a baby who was born with only one arm, and
her daughter took every minute of those 3 months she got under
Family and Medical Leave, and needed to in order to learn to
care for that baby and to find a caregiver who could care for
the baby. And this woman said, ``How can I say that because
someone works in a smaller firm, they, too, wouldn't have
needed this same time?'' A third commissioner who was an
opponent had a godson who had a family tragedy. This man missed
our commission meeting because he was at the hospital bedside.
And he said, I know godchildren aren't covered under the law,
but don't tell me that I wasn't going to be at that bedside.
I wish I could tell you that we won them over on the need
to expand. We couldn't get them to break ranks. But they did
join us in a unanimous report applauding the benefits of Family
and Medical Leave for employers and employees and calling on
States to voluntarily experiment with forms of paid leave.
So I urge you to consider that experience in understanding
why this has been such a positive measure that we need now to
expand, not gut.
Thank you.
[The prepared statement of Ms. Bravo follows:]
Prepared Statement of Ellen Bravo
1. Experience with the FMLA: Thank you for the opportunity to
testify before this committee. I coordinate a consortium of eight
States working to make leave more affordable and more accessible.
Before this, I was the executive director of 9to5, National Association
of Working Women, which helped put the consortium together to raise
funds for work being done at the grassroots level. After Linda Meric
became executive director of 9to5, I continued to work with the
consortium.
For 22 years I helped run first a local office and then the
national office of 9to5. I know what small businesses mean about the
difficulty of managing an operation when staff are absent. Work life is
certainly easier if no one becomes sick or pregnant. Once our office
had three women pregnant at the same time--that was a challenge. But we
recognized that it would be much harder if we lost any of these staff
altogether. 9to5's policies were always more generous than the FMLA,
even though technically we were not covered by the law. We saw time off
as a part of life, and also as a developmental opportunity for other
staff.
Before coming to 9to5, I worked at the phone company in Milwaukee.
I was told when I was hired that I could not be sick for 5 years. That
meant people came to work sick, stayed ill much longer than they would
have and made other people ill. At 9to5, we sent people home if they
came to work when they were sick. Again, this is inconvenient--but much
more harmful to the individual and co-workers (and in the case of
service workers, to their clients and customers) and to overall
productivity if people are forced to work sick out of fear for their
income or their job.
I remember a colleague at 9to5 whose son had severe asthma. It
wasn't easy when she was out, and her son was never able to warn her
ahead of time when an attack was coming on. But his well-being and hers
were important to us. By being flexible, we were able to keep a
valuable employee and she was literally able to keep her son alive. I
was reminded of this when I heard the story of Maria Vazquez, a 41-
year-old single mother and 9to5 member in Aurora, Colorado. The FMLA
allows her to take off whenever her 11-year-old son, Vidal, has an
attack caused by his chronic asthma. ``When he does get sick, I have to
be up practically 24 hours,'' Vazquez said in a telephone interview,
praising her employer, Kaiser Permanente, and her supervisor for
understanding her situation.
It may be easier to track leave if workers are forced to take only
larger increments (although the law provides only for increments an
employer already uses). But it's much more inconvenient to the rest of
the workforce to force people to take half a day when they only need an
hour for a doctor's appointment or radiation treatment. Not only would
a change in this regulation penalize workers financially, but it would
also make it more difficult for employers to get the work done.
Everyone loses when a parent or other caregiver cannot stay with a
seriously ill child or a child who is having a procedure, or take care
of an elderly parent or spouse who's had a stroke or heart attack and
needs a few days' care. A young woman, the daughter of a 9to5 leader in
Pennsylvania, told us how children ``always know what's going on; we
hear everything. Whenever I was sick, I would ask myself, `Should I
tell my mom? Will we have groceries this week?''' Whenever she was
able, she said, she simply dragged herself to school. Surely as a
Nation we can find a way to ensure that children don't have to go to
school sick or stay home alone in order for their parents to keep their
jobs.
Ten years ago Congress appointed a bipartisan Commission on Leave
to study the impact of the Family and Medical Leave Act. I had the
privilege of serving on that body. We commissioned two studies, one on
the impact on employers and a second on employees. And what we learned
was that the FMLA had a positive impact on both employers and
employees. I included a handout for you in the Consortium packet.
The Commission on Leave included six people who were appointed
precisely because they worked to oppose the bill and six who worked to
pass it. Many of us thought we wouldn't be able to hold a conversation,
much less reach agreement on a report. But an interesting thing
happened. Some of the opponents experienced personal situations that
showed the need for expanding FMLA. One opponent had a grandbaby born
with only one arm. This woman knew that her daughter, the mother,
needed every minute of her 3 months leave to learn to care for the baby
and to find a provider who could learn that as well. Although she was
specifically on the Commission to argue against expanding the bill to
smaller businesses, this woman said she knew there could be employees
in those companies who also needed that guarantee. Another opponent of
FMLA missed a Commission meeting because of a tragedy involving his
godson. ``I know godchildren aren't counted as family under the FMLA,''
he said, ``but there was no way I wasn't going to be there.'' We
weren't able to persuade these Commission members to go along with
recommendations to expand the FMLA, but their experiences and others we
all heard in three hearings around the country helped win them to
support unanimous adoption of a report acknowledging how well the FMLA
worked, and encouraging voluntary action by States to experiment with
forms of paid leave.
The flexibility in the current regulations allows for examples like
the following:
This winter, the FMLA saved Kelly Edwards of Milwaukee. When her
son broke his ankle, required surgery and needed her care for a few
days, she was able to take family medical leave. Because of the law her
son was able to get 4 days of parental attention, and start
recuperating with an employed mother putting food on the table. If not
for the FMLA, Kelly would have no legal protections to take this time
for her child.
Donna Skenadore, also from Milwaukee, has a diabetic father who had
to have his leg amputated at the same time her mother had heart
surgery. Donna and her sister were each able to take a week off and go
to DePere, Wisconsin to care for them.
Paul Galantowicz of West Branth, Michigan is grateful that he can
be a responsible dad while he helps put food on the table. ``I want to
be there for my 3 year old as she faces her battle against cerebral
palsy,'' said Galantowicz. ``She has weekly visits with doctors,
physical therapists, and every few months has to take an 8 hour trip to
a university children's hospital. She is legally blind, can't walk, and
the visits are needed to maintain her fragile medical status. Her mom
does a lot, but as a responsible dad, I need to share the caregiving
for Lauren. I was also able to take time off for her when she was a new
baby. On Father's Day I'm thankful my job is protected under the Family
Medical Leave Act (FMLA), so I can be a good father and a dedicated
employee.''
But we need to remember that more than two in five workers are not
covered. They include people like 9to5 member Virginia Beyer. Earlier
this year, Ginny had a hernia problem that landed her in the emergency
room on a Thursday night. She was still in the hospital Friday and
called her supervisor, who immediately asked for a doctor's note. Ginny
told 9to5, ``Even though the doctor faxed a note, my employer said I
was `self-terminated' for having to miss less than a week recovering in
the hospital.''
It's time to move forward, not backward on the FMLA. I urge you NOT
to recommend adoption of any regulations that would in fact gut the
bill and result in millions of workers losing their much-needed right
to flexibility to care for family members.
2. Improvements in implementation: Every year thousands of workers
call the 9to5 hotline. Many of them don't know their rights under FMLA.
An employer might say they can't have time off because they want to use
the leave to care for a parent. Often they receive absence points for
using FMLA-protected time, in spite of fact that this is illegal. The
DOL needs to expand education for employees on their rights under the
law, and for employers on both their responsibilities and protections
such as provisions regarding medical certification requests.
3. What families need for work-life balance: The law needs to cover
more people, for more reasons, and to be affordable. Some special
interest lobbyists argue that smart employers will do the right thing
on their own because it helps the bottom line. We agree. But laws
aren't written for smart employers. They're written to create a floor
to guarantee minimum levels of protection. We must remember that two-
thirds of all employers covered under the FMLA had to change one or
more provisions of their policies in order to comply with the law. For
many, that meant allowing men to take leave, or adoptive parents, or
those who needed to care for a seriously ill child.
Here are some other measures that workers need: The Healthy
Families Act, which would guarantee a minimum number of paid sick days
so that employees are not fired if they have a child with a routine
illness. We need to recognize the irony with current welfare reform. We
say low-income mothers must work to show that they're good parents, and
then allow them to be fired because as a good parent they stay home
with a child who's sick. Employers need flexibility, but certain kinds
of flexibility--like firing a parent because they have a sick child
should never be permitted. A certain number of hours of FMLA leave
should be allowed for routine school and routine medical activities.
As the Commission urged, States need to experiment with forms of
paid leave. States that have Temporary Disability Insurance Funds
should expand those to cover family leave. And others should create a
new fund, paid for by modest amounts from employees, employers and the
State or Federal Government.
In the meantime, the Federal FMLA should follow the model of the
Wisconsin bill, which allows employees to substitute sick days or other
paid time off they have accrued for the unpaid leave allowed under the
act.
Employees should be allowed to use their own sick time to care for
a sick family member.
We should also expand the use of unemployment insurance to cover
those who lose a job because of a legitimate family care hardship.
The Chairman. I would ask you to stay with the time. I know
it is very short, but if you can expand on your remarks later,
that will be accepted for the record. But at our present pace,
only about half of you are going to get to talk. So if you can
kind of summarize and give us the examples in writing, that
would be very helpful.
Ms. Ness?
Ms. Ness. Can you hear me?
The Chairman. Yes.
STATEMENT OF DEBRA NESS, PRESIDENT, NATIONAL PARTNERSHIP FOR
WOMEN AND FAMILIES, WASHINGTON, DC
Ms. Ness. I want to say thank you for holding this hearing
because it is an opportunity for us to talk about what I think
has been one of the most significant advances for working
families in the last several decades. We are an organization
that has been around for 30 years working on issues important
to women and families, and we believe that this has been a
really monumental step in moving us toward being a more family-
friendly Nation.
We live at a time when three-quarters of families have both
parents working. And we still are very badly out of sync with
the realities that most working families face because we still
primarily operate as a society on the assumption that there is
still a full-time caregiver at home. We as a Nation care a
great deal about family values and I think the Family and
Medical Leave Act was a step toward putting those values into
action in ways that really support families.
Since its enactment, 50 million Americans have taken
advantage of the Family and Medical Leave Act; 42 percent of
those have been men, 58 percent of those have been women. And
we know from some of the research that has been done that many
of those individuals say that it led to quicker recoveries, it
led to their ability to follow doctor's orders more carefully,
it led to avoidance of parents being put into nursing homes.
And we also know that 98 percent of employees who have taken
advantage of Family and Medical Leave have returned to the same
employer.
I would like to reinforce what Ellen said. It has been an
extraordinarily important law for employees, but I believe also
a good law for employers as well. We have lots of evidence,
including research from the Department of Labor, which show
very high levels of support from employers who said that it
had, if anything, a positive or neutral impact on profitability
and growth and employee morale.
So I thank you for this opportunity and say that it is an
important step forward for our Nation that cares about
families.
[The prepared statement of Ms. Ness follows:]
Prepared Statement of Debra Ness
Good morning, Chairman Enzi, Senator Kennedy, and members of the
committee. My name is Debra Ness. I am President of the National
Partnership for Women & Families. The National Partnership is a non-
profit, non-partisan advocacy group dedicated to promoting fairness in
the workplace, access to quality healthcare, and policies that help
Americans balance work and family responsibilities.
The National Partnership for Women & Families leads a broad,
diverse coalition of over 200 groups dedicated to defending the FMLA on
behalf of working Americans. The coalition reaches across a broad
spectrum of concerned citizens, including religious, women's, seniors
veterans, and disability groups.
Our leadership of this coalition is a natural extension of our
original role as drafter of the FMLA and leader of the coalition of
more than 250 organizations advocating for its passage. We were very
pleased when the act was signed into law in 1993 and the regulations
were issued by the Department of Labor in 1995. We appreciate having
been invited to speak with the committee here today on the FMLA and to
address the important questions the committee has outlined for
discussion.
Question 1: What has been your own experience, or that of your
company, with the FMLA and its regulations?
The FMLA is a major advance for working families. It provides
unpaid, job-protected leave for up to 12 weeks a year to care for a
newborn, newly adopted or foster child, to care for a seriously ill
family member, or to recover from an employee's own serious illness. It
also protects the health insurance of those on leave.
Over 50 million men and women have taken leave under the act since
its passage 12 years ago. This includes Americans from all walks of
life. For example, 75 percent of leave takers earn less than $75,000 a
year. A significant number of leave takers are men (42 percent) who use
the FMLA for both their own serious illness (58 percent) and to care
for seriously ill family members (42 percent).
The FMLA is one of the most popular laws passed in recent decades.
Over 80 percent of employees surveyed by the Department of Labor say
that all workers should be able to take up to 12 weeks of leave a year
for family and medical reasons--a finding duplicated in poll after
poll, with uniformly high support across all demographic, political,
and regional groups.
Parents and children's advocates are particularly supportive of the
FMLA because of its extremely positive outcomes for children. The
medical leave protected under the act translates to important
improvements in child health outcomes. Job-protection (and the
attendant protection of health insurance) during pregnancy allows
mothers covered by the act to get the prenatal care so important to a
healthy birth. The family leave protected in the act allows parents to
nurture and bond with newborns in their first year of life--the most
critical time in a child's development. Job-protection during family
leave also allows parents to care for seriously ill children, care that
research shows promotes more rapid recovery. Children's hospital stays,
for example, are shortened by one-third when parents are present during
their care, according to Harvard researcher Dr. Jody Heymann.
Healthcare professionals and healthcare advocates are passionate
advocates of the FMLA, because of its importance both to children's
health and to the health of adults and the general public. The FMLA is
the only source of job-protected leave under Federal law for the many
American workers who fall seriously ill each year or for those who need
time off to care for seriously ill family members. Dr. Jay Fathi, Chief
of the Department of Family Medicine at Swedish Medical Center in
Seattle, Washington, captured these sentiments when he stated, at a
recent press briefing:
``The FMLA has been critical to the health of many of my
patients and to the health of Americans more generally. It's
because of the law that people--or more specifically those
covered under the act, and particularly my lower-income
patients--don't have to risk putting their jobs in jeopardy to
come see me and get treatment. Moreover, people who lose their
jobs through illness generally lose their health insurance
along with their employment. People without health insurance
generally get worse healthcare, and worse healthcare means
worse health.''
The FMLA is broadly supported by the medical profession. Health
organizations, such as the American Academy of Pediatrics, were key
players in the passage of the act and continue to be deeply invested in
its maintenance.
Those concerned with healthcare costs also recognize the critical
role that the FMLA plays in cost containment. Threat of job loss is a
powerful disincentive to seeking healthcare. By ensuring job
protection, the act allows people to seek the treatment they need, when
they need it.
The FMLA has also been accepted and welcomed by employers. Data
from the most recent national research on the FMLA, conducted by the
Department of Labor, show that the vast majority of U.S. employers
report that complying with the FMLA has a positive/neutral effect on
productivity (83 percent), profitability (90 percent), growth (90
percent), and employee morale (90 percent). The act benefits employers
in numerous ways, most notably the savings derived from retention of
trained employees, from productive workers on the job, and from a
positive work environment.
Questions 2 & 3. Are there ways in which the implementation of the
act might be improved? Given the importance of maintaining a work/life
balance for all working Americans, what do you believe are the most
reasonable options to achieve the desired balance?
Before I address the National Partnership's suggested improvements
to the FMLA and options to achieve work/life balance, I would like to
take a moment to address why regulatory changes proposed by some
business groups would not improve implementation, but would in fact
undermine the act.
Intermittent Leave
One proposed regulatory change would force employees to take unpaid
leave in half-day increments. This would seriously undermine
protections in the act badly needed by working families. Currently, the
regulations allow employees to take intermittent leave when medically
necessary in the smallest increment that an employer already uses to
track employee time. Making employees use intermittent leave in half-
day increments would force employees to take more unpaid time off than
they need to. As a result, employees who use intermittent leave because
they require frequent, short treatments would use up their allotment of
FMLA more quickly. A working woman needing prenatal care is a good
example of the negative impact such a change would have. An estimated
14 prenatal care visits are necessary for a healthy pregnancy. These
visits often take less than an hour. If women are forced to take a
half-day leave for each visit, they will run through their FMLA leave
faster, depriving them of crucial time to bond when the baby is born.
People who need treatments like the following would also face similar
consequences: radiation dialysis, steroid or chemo infusions for
patients with multiple sclerosis, and cardiac rehabilitation after a
heart attack.
Furthermore, the proposed change to intermittent leave would also
hurt the large numbers of working Americans who rely on every paycheck
just to make ends meet. To force these employees to take unneeded,
unpaid leave would threaten their families' already-fragile economic
stability. Faced with this untenable choice, many employees would
deprive themselves and their loved ones of much needed healthcare.
Serious Health Condition
Another proposed regulatory change would limit the definition of a
serious health condition. Current regulations define a serious illness,
in part, as a condition that requires more than 3 consecutive days of
treatment and recovery. Historically, some business groups have
proposed changing the definition of serious health condition to exclude
illnesses that require less than 10 days for treatment and recovery.
Narrowing the definition will exclude numerous serious conditions. For
example, an employee with acute appendicitis may not be covered. This
employee, with medical treatment, can be back at work in less than 10
days. Untreated, acute appendicitis is life threatening. Of the 50
million Americans who have taken job-protected leave under the FMLA,
half have taken leave for serious illness, whether their own or a
family member's, for 10 days or less. Workers with chronic and serious
health problems such as asthma and diabetes would also be prevented
from taking FMLA leave for their brief but incapacitating episodes.
Other examples of illnesses that would be excluded are pneumonia,
certain kinds of heart attacks, some gynecologic surgeries that can be
done laparoscopically such as removal of ovarian cysts, day surgeries
such as hernia repairs, some breast reconstruction surgeries after a
mastectomy and carotid artery cauterization for patients that are at
risk for strokes. Furthermore, the length of leave for surgeries and
recovery will continue to shorten with advances in health technology.
We urge the Department of Labor to maintain the current definition of a
serious health condition which provides job protection for millions of
Americans when they need it most.
Serious Health Condition and Intermittent Leave Regulations Work Well
More education would address many of the concerns raised about
intermittent leave and serious health condition. Many leave-taking
difficulties stem not from the regulations, but rather from the lack of
education regarding employer and employee rights and responsibilities.
The FMLA regulations as written provide robust employer safeguards to
ensure that leave is taken appropriately. Under the regulations,
employees must comply with notification requirements and medical
certification requirements. They also must explain reasons for required
leave and failure to do so gives the employer the power to deny leave.
Furthermore, employers may require up to three medical certificates by
doctors. The employer may also request that the original certification
include the likely duration and frequency of episodes of illness.
Employees needing intermittent FMLA leave or leave on a reduced leave
schedule must attempt to schedule their leave so as not to disrupt the
employer's operations. These protections and others are designed to
balance employer management needs and employee family and medical
needs.
Needed Regulatory Improvements
Regulatory improvements should be made to protect employees
attempting to exercise their FMLA rights. Below are three proposals for
regulatory improvements.
We urge the Department of Labor to issue a new regulation that
maintains the notice requirement at issue in Ragsdale v. Wolverine
Worldwide Inc., but adds a new penalty provision, protecting employees
who can show that they would have used this leave in a different manner
if given appropriate notice about the company policy. In Ragsdale, the
Supreme Court invalidated a penalty provision in the regulations that
required employers to grant employees additional FMLA leave if they did
not notify employees that they were using FMLA leave. (Section
825.700(a)). In the wake of Ragsdale, employers still have an
obligation to notify employees that their leave is being treated as
FMLA leave, but there is no incentive for employers to comply with this
requirement, since the penalty provision has been invalidated. Without
a penalty provision, employees' right to employer notification that
their leave is FMLA-qualifying is hollow.
We urge the Department of Labor to issue regulations that would
minimize employee penalties when there is no harm to the employer.
Currently, employees who do not give 30 days advance notice when taking
foreseeable FMLA leave can have their leave delayed 30 days from the
date they gave their employer notice of leave. (Section 825.302(a)).
Employees are often unaware of this obligation. We recommend that the
regulations provide that an employee who does not give 30 days of
advance notice for foreseeable FMLA leave not be penalized unless his
or her failure actually harms the employer.
Finally, we urge the Department of Labor to issue regulations that
lift the current burden placed on employees when a healthcare
professional is negligent. Under the regulations, an employer may
require an employee to get a medical certification to his or her
doctor. If the employee's doctor fails to submit the medical
certification, there is nothing in the regulations that protects the
employee. The doctor's negligence should not endanger the employee's
job. We recommend that employees not be penalized when they can show
that they in good faith visited a doctor and requested a medical
certification be submitted to the employer within the allotted time.
Additional Improvements to the FMLA
We speak passionately about building a Nation that values families,
and the FMLA is a monumental step toward this goal. But it is only a
first step. Millions of Americans do not have access to the act's
protections, and millions more cannot afford to take advantage of the
protections it affords. We strongly advise expanding the FMLA to make
it more affordable and accessible to all working families. We also
strongly advise a bold new public education campaign to increase
employers' and employees' awareness of their rights and
responsibilities under the law.
We urge Congress to expand the FMLA to cover the nearly 40 percent
of American workers as yet unprotected by the act. In over 75 percent
of U.S. families, both parents work. When their roles as workers and
parents conflict, uncovered employees find themselves forced to choose
between the jobs they need and the family they love. Rather than leave
sick babies or dying parents untended, many workers are forced to
forfeit their jobs--and with it, their health insurance. This double
blow to a family's economic security is often a family's undoing.
The decision, in 1993, to leave unprotected those working for
employers of less than 50 employees was due in large part to claims
made by some stakeholders that the law would drastically harm employers
and the economy. We now have 12 years of experience with the law, and
these concerns have not been validated. Today, there is near universal
agreement, even among those who originally opposed the FMLA, that the
act has been enormously beneficial to the 60 percent of the workforce
protected by it and has made good sense to the businesses that employ
them. We strongly recommend extending the act's protections to all
working Americans. Doing so would be a win-win for American employers
and American families.
We strongly recommend that Congress pass legislation to provide
those taking FMLA leave with income during their leave. Seventy-eight
percent of those who need but do not take family and medical leave do
not take it because they can not afford to, according to the Department
of Labor. Three hundred thousand bankruptcies a year are caused by lack
of paid medical leave, according to research by Harvard professor
Elizabeth Warren. Twenty-five percent of all poverty spells begin with
the birth of a child, according to The David and Lucile Packard
Foundation.
The urgent need to fill this gap in the law is widely reflected in
poll after poll: 89 percent of parents of young children and 84 percent
of all adults support expanding disability or unemployment insurance as
a vehicle for paid family leave, according to research by Zero to
Three. State polls have shown that large majorities of residents
respond affirmatively when asked if they are willing to pay the costs
of such programs through regular payroll contributions or other means.
A number of States have passed laws to establish popular, low-cost
programs to assure working families income while on leave. For example,
5 States have laws establishing programs of temporary disability
insurance for medical leave. These programs have been in place for
decades. More recently, California passed a law establishing a State-
administered insurance program to provide income for employees during
family leave. Employees receive 55 percent of their wages for up to 6
weeks when taking leave to bond with a new baby or care for a seriously
ill family member. Economists estimate the average cost of this policy
is $2.20 per employee per month. State laws establishing temporary
disability insurance and family leave insurance serve as successful
models on which national legislation can be based.
We also strongly recommend that the Department of Labor
significantly increase efforts to educate the public about the FMLA.
Sixty-two percent of employees at covered establishments do not know if
the FMLA applies to them, according to the DOL. This is not because
eligibility is difficult for stakeholders to determine--the vast
majority of employers, for example, find it ``easy'' to determine
whether employees are eligible. It is because we have failed to
adequately educate employees about their eligibility under the law. It
is not enough to have a policy in a CEO's desk drawer. Real education
needs to happen and involve managers, supervisors and employees. And
lack of education is not all on the employees' side. Education is
needed to help employers better understand the robust employer
safeguards that exist in the current regulations.
New Policies to Advance Work/Life Balance
We urge Congress to pass the Health-Families Act, new legislation
that addresses the need for employees to have paid leave for minor
illness and preventive care. While the FMLA has provided millions of
American workers protections to deal with serious illnesses, it does
not cover routine illnesses like the flu and preventative medical care
such as mammograms and colonoscopies. Nearly 50 percent of full-time,
private sector employees do not have a single paid sick day and 75
percent of low-wage workers lack this basic employment benefit. Only 33
percent of workers have paid sick days that may be used for doctors'
appointments and fewer have plans that allow leave to care for sick
children. Working families are often forced to choose between a
paycheck and caring for sick children, ailing parents, or for
themselves.
The Healthy Families Act would establish a minimum standard of 7
paid sick days per year. The benefits provided under the act would help
66 million Americans. The act would also generate cost savings: saved
wages that employers would pay to unproductive workers who go to work
sick, reduced turnover, reduced spread of contagion to other employees,
increased employee morale, and informal care. The Healthy Families Act
benefits everyone: children and family members, employers, taxpayers,
and consumers who are less likely to catch the flu or other diseases
from restaurant, hotels, and other public spaces. The act is estimated
to result in a net savings to our national economy of $8.2 billion per
year, according to the Institute for Women's Policy Research. I urge
the committee to seriously address the need for paid sick days and hold
hearings on the Healthy Families Act.
Conclusion
The Family and Medical Leave Act is a major advance for working
families. Not only should we not roll back its protection, we should
build on its success. The FMLA is a great first step, but our workplace
policies are still badly out of sync with the realities of many of
today's working families. We need to stop simply talking about family
values and start valuing families.
National Partnership For Women & Families,
Washington, D.C. 20009,
April 12, 2005.
Elaine L. Chao,
Secretary,
U.S. Department of Labor,
200 Constitution Avenue NW,
Washington, D.C. 20210.
Dear Secretary Chao: We are writing on behalf of millions of
American families who have benefited from the Family and Medical Leave
Act (FMLA) and the millions more who will benefit in the years to come.
We urge you not to make any regulatory changes that would undercut the
critical protections it provides to working women and men and their
families.
More than 50 million Americans have taken job-protected leave to
bond with a new baby, care for a seriously ill family member, or
recuperate from their own serious illness since the enactment of the
FMLA just 12 years ago. As a result, fewer people have had to choose
between a job and family when medical crises strike or babies are born.
We are very concerned that, despite the law's great success,
important provisions of the FMLA are threatened. Opponents of the FMLA
are calling for changes to the law that would rollback many of the
protections that it provides to America's workers by changing the
definition of a serious health condition and restricting the use of
intermittent leave.
One suggestion is to change the definition of a serious health
condition to deny job protected, unpaid leave to workers unless their
condition, or the condition of the person they are caring for, lasts 10
or more days. Current regulations define a serious health condition, in
part, as a condition that requires more than 3 consecutive days of
treatment and recovery.
Altering the definition will leave out numerous serious conditions.
For example, an employee with acute appendicitis may not be covered.
This employee, with medical treatment, can be back at work in less than
10 days. Untreated, acute appendicitis is life threatening. Of the 50
million Americans who have taken job-protected leave under the FMLA,
half have taken leave for serious illness, whether their own or a
family member's, for 10 days or less. We are concerned that altering
the definition of a serious health condition will remove much needed
job protection for millions of Americans when they need it most.
FMLA opponents are also pushing for changes that could force
employees to take leave for no less than a half-day at a time. This
change would force many employees to take unnecessary leave without
pay. Employees who require frequent, short treatments, such as
radiation treatment for cancer or pre-natal visits, will be forced to
exhaust their FMLA leave sooner than necessary, leaving them without
adequate job-protection for medically necessary treatments and recovery
time they require. The current law aims to minimize employers'
administrative burdens by offering leave in the smallest units that
employers already use to track employee leave while ensuring that
workers are not absent from work any longer than necessary.
Research shows that the FMLA has been beneficial to business.
United States Department of Labor employer surveys, released in 2000,
found that 9 in 10 covered employers report that the FMLA has a
positive or neutral effect on productivity and growth. Another
nationally representative employer survey found that 3 in 4 private-
sector employers say the FMLA's benefits outweigh or offset its costs.
The Department of Labor survey also found that, for the vast majority
of employers, intermittent leave has no impact on productivity (81
percent) or profitability (94 percent).
As a Nation, we can do a better job of helping our Nation's
families be responsible employees and parents. Working Americans need
the Department of Labor and Congress to provide more solutions as they
struggle to balance work and family. We hope that we can work with you
to develop programs that help meet the needs of our Nation's families
and ensure the security of the Family and Medical Leave Act. Thank you.
Sincerely,
National Partnership for Women & Families; 9to5 Colorado; 9to5,
National Association of Working Women; 9to5 Poverty Network
Initiative--Wisconsin; AARP; ACORN; ADA-OHIO (The Americans with
Disabilities Act); AFL-CIO; Aging Resources of Central Iowa; All
Families Deserve a Chance (AFDC) Coalition--Colorado; Alpha-1
Association; Alpha-1 Foundation; American Association of People with
Disabilities (AAPD); American Association of University Women (AAUW);
American Association on Mental Retardation; American Autoimmune Related
Diseases Association; American Civil Liberties Union (ACLU); American
Civil Liberties Union Women's Rights Project; American Federation of
Government Employees (AFGE); American Federation of State, County, and
Municipal Employees (AFSCME); American Federation of Teachers (AFT);
American Society on Aging (ASA); Asian Law Caucus, CA; Association for
Women in Science (AWIS-WVU), West Virginia University Student Chapter;
Association of Flight Attendants--CWA; Association of University
Centers on Disabilities (AUCD); Atlanta/North Georgia Labor Council,
GA; Atlanta 9to5, GA; Atlanta Women's Foundation, GA; Bay Area &
Western Paralyzed Veterans of America; Black Women's Health Imperative;
Business and Professional Women (BPW), USA; California Commission on
the Status of Women; California Labor Federation, AFL-CIO; California
Nurses Association (CNA); Cambridge Commission for Persons with
Disabilities, MA; Cambridge Commission on the Status of Women, MA;
Candlelighters Childhood Cancer Foundation; Candlelighters Childhood
Cancer Foundation of the Inland Empire, Inc., CA; Candlelighters of
Southwest Florida; Center for Community Change (CCC); Center for
Independent Living of Jasper, Alabama; Center for Law and Social Policy
(CLASP); Center for Women and Work, Rutgers University, NJ; Center on
Women and Public Policy, Humphrey Institute of Public Affairs,
University of Minnesota; Cerebral Palsy of Colorado; Chester County
Commission for Women, PA; Child Care Law Center; Children's Advocacy
Institute, Center for Public Interest Law; Children's Alliance of New
Hampshire; City of Boston Women's Commission, MA; City of Fairfax
Commission for Women, VA; Coalition on Human Needs; Colorado AFL-CIO;
Colorado Center on Law and Policy; Colorado Fiscal Policy Institute;
Colorado Progressive Coalition; Colorado Women's Agenda; Communications
Workers of America (CWA); Communications Workers of America (CWA),
Local 1034, NJ; Cook County Department of Human Rights, Ethics and
Women's Issues, IL; Cumberland County Commission for Women, PA;
Communications Workers of America (CWA), Local 3204, GA; Dads and
Daughters; DC Employment Justice Center; Delaware Commission for Women;
Denver Area Labor Federation, CO; Early Childhood Policy Research;
Epilepsy Foundation; Equal Rights Advocates (ERA), CA; Equality State
Policy Center, WY; Faith Voices for the Common Good, CA; Families USA;
Families of Spinal Muscular Atrophy (SMA); Family Caregiver Alliance
(FCA)/National Center on Caregiving; Family Caregiver Coalition of New
England; Family Voices New Jersey; Gateway/Midwest Paralyzed Veterans
of America; Georgia AFL-CIO; Greater Boston Legal Services, MA; Great
Plains Chapter Paralyzed Veterans of America; Illinois Maternal and
Child Health Coalition; International Association of Machinists
Aerospace Workers (IAMAW); International Federation of Professional and
Technical Engineers (IFPTE); International Union of Bricklayers and
Allied Craftworkers; Iowa Commission on the Status of Women; Iowa
Annual Conference of The United Methodist Church; Labor Project for
Working Families, CA; Leadership Conference on Civil Rights (LCCR);
Legal Aid Society-Employment Law Center (LAS-ELC), CA; Legal Momentum;
LIUNA (Laborers' International Union of North America); LIUNA Women's
Caucus; Lutheran Office of Governmental Ministry in New Jersey; Maine
Civil Liberties Union; Maine Women's Lobby; Massachusetts AFL-CIO;
Massachusetts Paid Leave Coalition; Paralyzed Veterans of America,
Michigan Chapter; MOTHERS (Mothers Ought To Have Equal Rights);
Montgomery County Commission for Women, MD; Ms. Foundation for Women;
NARAL Pro-Choice America; NARAL Pro-Choice Arizona; NARAL Pro-Choice
Colorado; NARAL Pro-Choice Massachusetts; NARAL Pro-Choice New
Hampshire; NARAL Pro-Choice New York; NARAL Pro-Choice North Carolina;
NARAL Pro-Choice Ohio; NARAL Pro-Choice South Dakota; NARAL Pro-Choice
Wisconsin; National Association for the Education of Young Children
(NAEYC); National Association of Commissions for Women (NACW); National
Association of Social Workers (NASW); National Association of Social
Workers (NASW), Colorado Chapter; National Association of Social
Workers (NASW), Iowa Chapter; National Association of Social Workers
(NASW), Metro Chapter; National Association of Social Workers (NASW),
Oregon Chapter; National Coalition for Cancer Survivorship; National
Council of Churches (NCCCUSA); National Council of Jewish Women (NCJW);
National Council of La Raza (NCLR); National Council of Women's
Organizations (NCWO); National Council on Independent Living; National
Education Association (NEA); National Employment Law Project (NELP);
National Employment Lawyers Association (NELA); National Family
Caregivers Association (NFCA); National Mental Health Association;
National Multiple Sclerosis Society; National Organization for Women
(NOW); California National Organization for Women (NOW); Connecticut
National Organization for Women (NOW); National Psoriasis Foundation;
National Respite Coalition; National Women's Health Network; National
Women's Law Center (NWLC); NETWORK: A National Catholic Social Justice
Lobby; New Hampshire AFL-CIO; New Hampshire Commission on the Status of
Women; New Jersey Citizen Action; New Jersey Time To Care Coalition;
New Mexico Association of Community Action Agencies; New Mexico
Commission on the Status of Women; New Mexico Conference of Churches;
New Mexico Voices for Children; North Carolina Justice & Community
Development Center; Paralyzed Veterans of America, North Central
Chapter, SD; Older Women's League (OWL); Padres Unidos--Colorado; PA
Family Economic Self-Sufficiency Project, PathWaysPA; Paper, Allied-
Industrial, Chemical and Energy Workers International Union (PACE);
Paralyzed Veterans of America; Parent to Parent of Colorado; Parents'
Action for Children; ParentsWork, IL; Pax Christi; Pennsylvania Council
of the Blind (PCB); Philadelphia Citizens for Children and Youth, PA;
Planned Parenthood Federation of America (PPFA); Program on WorkLife
Law, American University Washington College of Law, DC; PROJECT!
OUTREACH: Early Breast Care, Education, Screening & Education, Inc.;
Project WISE, CO; Protestants for the Common Good; Public Justice
Center, MD; RESULTS; Seattle Women's Commission, WA; Service Employees
International Union (SEIU); South Dakota Coalition of Citizens with
Disabilities; South Plains Post Polio Support Network, TX; Statewide
California Coalition for Battered Women; Statewide Parent Advocacy
Network (SPAN), NJ; Take Back Your Time Day; Take Care Net; The Arc of
the United States; UAW Massachusetts CAP Counsel; United American
Nurses; Unitarian Universalist Association of Congregations; United
Auto Workers (UAW); United Cerebral Palsy; United Electrical, Radio and
Machine Workers of America (UE); United Food and Commercial Workers
(UFCW), Women's Network; United Steelworkers of America (USWA);
USAction; Utility Workers Union of America; Vaughan Chapter Paralyzed
Veterans of America, IL; Veteran Feminists of America; Virginia
Interfaith Center for Public Policy; Voices for Children of Greater
Cleveland, OH; Voices for America's Children; Wider Opportunities for
Women (WOW); Wisconsin Council on Children and Families; Wisconsin
Paralyzed Veterans of America; Women Employed, IL; Women's Employment
Rights Clinic, Golden Gate University School of Law, CA; Women's Law
Center of Maryland; Women's Law Project, PA; Women's Lobby of Colorado;
Women's Policy Group, GA; Women's Way, PA; Women Work! The National
Network for Women's Employment; WomenVotePA; YWCA Greater Portland, ME;
YWCA USA.
Assessing the Family and Medical Leave Act: An Analysis of an
Employment Policy Foundation Paper on Costs
institute for women's policy research
june 29, 2005
Policy Foundation paper, The Cost and Characteristics of Family and
Medical Leave,\1\ purports to evaluate the costs to employers of the
Family and Medical Leave Act (FMLA). The paper provides none of the
standard information about the methods used in conducting the survey,
such as the sample size or characteristics of the employers who
participated in the survey. Personal communication with the author
revealed that the sample was quite small (110 employers) and that the
survey participants were not randomly selected. Despite this, the paper
generalizes its findings as if the study represents all U.S. employers.
---------------------------------------------------------------------------
\1\ Janemarie Mulvey, The Cost and Characteristics of Family and
Medical Leave (Washington, D.C.: Employment Policy Foundation, 2005).
---------------------------------------------------------------------------
In this analysis, we highlight a number of weaknesses in the EPF
paper that limit its usefulness in the debate over use of the FMLA.
1. The paper does not represent U.S. employers.
The survey used to generate the cost assessment did not
use a randomly selected group of employers, so responses do not reflect
the average experience of all U.S. employers.
The survey's sample was very small--110 employers. Firms
answering the survey employ only 0.36 percent of all U.S. workers (less
than half of one percent).
The survey responses may depend on the size and location
of employers, but no information about employers' characteristics is
provided in the paper.
2. Employers' responses may be very subjective.
It is unclear whether the information used in the paper was based
on data maintained in employers' records or was simply one employee's
impression, since the paper does not reveal who at each firm responded
to the survey and what resources they had available to do so.
3. Employers with complaints are probably more likely to answer the
survey than satisfied employers.
Individuals with a specific interest in a survey topic are
more likely than others to participate in surveys.\2\
---------------------------------------------------------------------------
\2\ Robert M. Groves, Stanley Presser, and Sarah Dipko, ``The Role
of Topic Interest in Survey Participation Decisions,'' Public Opinion
Quarterly 68, no. 1: 2-31 (2005).
---------------------------------------------------------------------------
Employers who are managing FMLA leaves effectively are probably
less likely to take the time to say that things are going well than are
those with concerns over the FMLA. Thus, the survey responses likely
over-estimate the difficulty all U.S. employers perceive in
implementing the FMLA.
4. The paper incorrectly assumes that workers who take FMLA leave
would not miss work if they had no FMLA leave.
Workers with serious health conditions cannot go to work
whether they have FMLA leave or not.
Many workers whose children are very ill or in the
hospital will be with their children, even if they do not have FMLA
leave.
The difference the FMLA makes is ensuring that workers can
go back to work once a health crisis is over.
Workers are unlikely to miss work unnecessarily since the
FMLA does not require that workers be paid during their leaves, and
many workers go without pay during their FMLA leave.
5. The paper ignores savings to employers who do not pay wages to
workers on unpaid FMLA leave.
The paper reports both lost productivity (when workers are
not on the job) and net replacement costs, but does not appear to
account for employers' savings related to not paying workers who are on
unpaid leave.
6. Other research finds much lower replacement costs for workers on
FMLA leave.
In an independent survey, the U.S. Government
Accountability Office found that employers' savings from not paying
salaries and benefits to workers on leave are greater than the cost of
the few replacement workers hired.\3\
---------------------------------------------------------------------------
\3\ U.S. General Accounting Office [now the U.S. Government
Accountability Office], Estimated Costs of H.R. 925, The Family and
Medical leave Act of 1987 (Washington, D.C.: U.S. General Accounting
Office, 1987).
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7. The paper's conclusions about trends in use of FMLA leave are
derived from faulty analysis.
Comparisons of EPF's survey findings to those of a 2000
Department of Labor survey of FMLA use \4\ are inappropriate--not only
because the EPF survey is not representative of all employers (which
the Department of Labor survey is), but also because questions were
worded differently in the two surveys.
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\4\ David Cantor, Jane Waldfogel, Jeffrey Kerwin, Mareena McKinley
Wright, Kerry Levin, John Rauch, Tracey Hagerty and Martha Stapleton
Kudela, Balancing the Needs of Families and Employers: Family and
Medical Leave Surveys (Washington, D.C.: U.S. Department of Labor, 2001
accessed January 20, 2001).
The Chairman. Thank you.
Ms. Marsden?
STATEMENT OF JAMIE MARSDEN, DIRECTOR OF HUMAN RESOURCES, CITY
OF GILLETTE, WY, ON BEHALF OF THE SOCIETY FOR HUMAN RESOURCE
MANAGEMENT (SHRM)
Ms. Marsden. I would like to state that as a HR director
for a small entity, I have engaged in the opportunity to help
people with this family and medical leave for about 10 years.
And also to reiterate that it is a good benefit and for the
most part it does work very well. But there are instances that
we have to deal with in HR that are abuses of it, and it is a
problem for those individuals who are using it well. In
particular, I would like to see some additional language to
help clarify what is a serious health condition and also to
better clarify regarding intermittent leave.
I have had instances where individuals have asked for as
little as 15 minutes a day, some that have had a lot of
disruption to the work unit they have been with because of the
morale issues surrounding that. And also, the serious health
condition, I have had issues of whether or not the individual
was actually in need of the leave.
So I would like to see some further clarification. I do
believe that it works well. I do believe we need to have a
means by which our people can take care of problems that come
along with health conditions. We provide sick leave and, for
the most part, most of our employees do go out on paid family
and medical leave.
Thank you.
[The prepared statement of Ms. Marsden follows:]
Prepared Statement of Jamie Marsden
Chairman Enzi, ranking member Kennedy, and members of the Senate
Health, Education, Labor, and Pensions Committee my name is Jamie
Marsden and I am the Director of Human Resources for the City of
Gillette, Wyoming. I appeared at the FMLA Roundtable on behalf of the
Society for Human Resource Management (SHRM) and I am pleased to submit
the following statement for the record.
Human resource professionals are committed to the proper
application of the Family and Medical Leave Act (FMLA). Since the
enactment of the law in 1993 and the issuance of the act's implementing
regulations, as well as Wage and Hour Opinion letters, a variety of
concerns and questions have been raised surrounding the correct
application of the act in the workplace. This is evidenced not only by
research from the U.S. Department of Labor (DOL), but also by outside
groups like SHRM, of which I am a member.
SHRM conducted surveys in 2000 and 2003 on the FMLA and I believe
that the findings from the survey efforts substantiate my personal
experiences in administering this act and are also representative of
the human resource profession's experience with the law overall. The
research found that while organizations strongly support the FMLA and
the benefit that it provides to so many employees nationwide, Wage and
Hour interpretations have created numerous compliance difficulties as
well as misuse of the act's leave provisions. For example, the 2000
survey identified the following as the most difficult areas of FMLA
compliance for human resource professionals:
Managing intermittent use of leave;
Communicating with physicians and care providers;
Determining whether an intermittent serious health
condition should be protected by the FMLA;
Managing leave of less than 1 day.
The 2003 findings were consistent with those found in the 2000
research. In addition, the 2003 survey confirmed that half of human
resource professionals had to grant, based on DOL regulations/
interpretations, FMLA requests that they believe were not legitimate.
In addition, 34 percent of human resource professionals stated
employees complained because of other workers' questionable use of FMLA
leave. SHRM conducted supplemental research in 2005, which yielded
similar results.
The DOL has the responsibility to bring clarification to the FMLA
so that issues related to the interpretations, related notification and
record keeping requirements regarding serious health condition,
management of intermittent leave, and communication with healthcare
providers and physicians is clearly understood by both employees and
employers alike.
Mr. Chairman, I would like to provide the committee with my own
practical examples that underscore the research findings that I've
cited in this statement.
Experiences in Administering FMLA
1. Definition of ``Serious Health Condition'': When the FMLA was
passed in 1993, the definition of serious health condition appeared to
cover circumstances such as cancer, serious heart conditions, advanced
diabetes, dialysis, etc. I have received medical certifications from
doctors indicating that employees need FMLA leave for a variety of
reasons, including symptoms of stress. Human resource professionals
must rely upon information provided by doctors, even if the condition
cited is questionable. Therefore, we err on the side of caution and
grant virtually all FMLA leave requests accompanied with a medical
certification in order to ensure that an employee's rights under the
act are not violated.
I would like the DOL to clarify the definition of ``serious health
condition'' so that it reflects conditions that are truly serious in
nature. In 1993, Congress, in the legislative language, provided
direction for serious conditions. Yet today, the common cold, broken
big toes, or even in-grown toenails are protected by the FMLA according
to the DOL regulations and Wage and Hour Opinion Letters. Clarity must
be restored to this definition so that employees who experience truly
serious conditions have access to ``job protected'' leave and are able
to freely exercise their rights under the FMLA.
2. Intermittent Leave: Current law requires that employers track
time in the smallest time increments that their systems allow. This
requirement is cumbersome. I believe that intermittent leave should be
tracked in no less than 1 hour increments or in a manner that is
consistent with how employers track and keep time for other leave
programs. In addition, employees may utilize intermittent leave for
chronic conditions or to seek treatments to recover from a serious
health condition.
There are a small percentage of employees who misuse certified
``job protected leave.'' I find this most often occurs when an employee
is certified for a chronic condition. The result of inappropriate leave
use, perceived or real, may be devastating to employee morale,
particularly if notice has not been provided to the employer that the
employee will be absent. The Employment Policy Foundation reports that
more than 50 percent of leave-takers provide notice either the day
leave begins or after the leave has commenced. This puts co-workers in
a position of working unscheduled overtime.
3. DOL Certification Form: It has been my experience that the DOL
certification form that doctors complete for their patients is too
lengthy and in need of revision. I've noticed that doctors rarely
complete the form, as we all know, the writing is frequently difficult
to read. As it is, doctors are burdened by the amount of paperwork that
they are required to complete in the normal course of their practice,
and the FMLA certification form adds to this burden. Doctors now charge
their patients out-of-pocket fees for completing the DOL certification
form.
4. Return to Work Certifications: We have concerns about how
healthcare providers handle return to work certifications. Employees
too often have undue influence in prolonging certified leave regardless
of whether or not additional recovery time is necessary.
Example: I had an employee on FMLA leave who exhausted all of his/
her PTO (employer sponsored paid time off) with our organization. The
employee visited the doctor who certified that additional FMLA leave
was needed. As a result, our organization notified the employee that
further FMLA leave would be un-paid. The employee's spouse called the
doctor to request a change in the certification of health so that the
employee could return to duty. The doctor changed the form and the
employee was back to work a few days later.
5. FMLA and the Americans with Disabilities Act: Because many
employees who request FLMA leave also qualify under the Americans with
Disabilities Act (ADA) for ``reasonable accommodations,'' the
interaction between FMLA and the ADA continues to be a subject of
confusion. Often, accommodations under the ADA for a reduced work
schedule or light duty are often better solutions for employees than
intermittent leave.
Suggestions for Improving the Regulations
1. Limit intermittent leave time increments to 1 full hour or the
increment of time that employers use to track other leave programs in
the workplace. This would allow employees to take FMLA leave in smaller
time increments, yet eases administration and tracking issues for
employers as all leave would be in blocks of full hours.
2. Provide a clear definition of what qualifies as a serious health
condition. Elective cosmetic surgery and employees feeling ``stressed
out'' (unless diagnosis is made by a certified mental health
specialist) should not qualify as job-protected FMLA leave. However,
serious heart conditions, cancer, advanced arthritis, advanced
diabetes, kidney failure, etc. should be conditions that were once
envisioned by Congress to rise to that level of protection.
3. Revise the ``certification of health'' form so that the form is
clear for healthcare providers, employers, and employees to complete,
and clearly understand and complete and submit electronically.
4. Allow employers to take appropriate disciplinary actions (absent
dismissal) with employees in question if employers uncover abuse of
medical leave.
Conclusion
Chairman Enzi, thank you again for the opportunity to submit this
statement for the record. The regulations governing the FMLA have been
in place for 10 years and it is important for the DOL to conduct a
thorough review of the rules and issue clarifications to the medical
leave regulations. The majority of Roundtable participants agreed that
clarifications are necessary for not only employers but also to ensure
that employees have a clear understanding of their rights.
The practical experience I've provided along with survey data from
SHRM clearly indicates that while human resource professionals and
employers support the FMLA, they have experienced difficulty in
administering and implementing these regulations.
Chairman Enzi, I look forward to working with your office on this
important issue, and if there is any further information that I can
provide to you, please do not hesitate to contact me at your
convenience.
The Society for Human Resource Management (SHRM) is the world's
largest association devoted to human resource management. Representing
more than 200,000 individual members, the Society's mission is to serve
the needs of HR professionals by providing the most essential and
comprehensive resources available. As an influential voice, the
Society's mission is also to advance the human resource profession to
ensure that HR is recognized as an essential partner in developing and
executing organizational strategy. Founded in 1948, SHRM currently has
more than 550 affiliated chapters and members in more than 100
countries. Visit SHRM Online at www.shrm.org.
The Chairman. Thank you.
Mr. Prybutok?
STATEMENT OF ROBERT PRYBUTOK, PRESIDENT, POLYMER TECHNOLOGIES,
NEWARK, DE
Mr. Prybutok. Thank you. I am Robert Prybutok, president of
Polymer Technologies and principal owner. We have been in
business since 1989. We manufacture acoustical and thermal
composites and sell these composites to a broad range of
markets, a broad range of original equipment manufacturers in
the United States.
We have been in business since 1989, and from the time that
we started business, we offered a full complement of benefits--
100 percent paid healthcare, short-term and long-term
disability, 5 sick days, personal days, vacation, 401(k). We
work in a competitive environment and, as most businesses do,
particularly manufacturers, we fight rising costs that we can't
pass on to our customers.
We were impacted by FMLA in 1996, and it has been easier to
administer in the office environment where employees are more
autonomous and can be more flexible in making time up than in
the manufacturing environment. Typically in a manufacturing
environment you will have anywhere from two to half a dozen
employees working in a cell. And in today's lean manufacturing
implementation, it is very difficult to overstaff. So when
employees are out, it causes inefficiency and an economic
burden.
Some of the problems we face with FMLA: one has to do with
the--let's say the employee doesn't return to work. A typical
example is an employee who is out on maternity leave and
covered, from a salary perspective, under our short-term
disability, elected to extend it, and then indicated that they
had no intention of returning to work. The coworkers had to
take on that burden. Additionally we had to search for and hire
a replacement, which extended that problem. But there was also
exposure for Polymer Technologies, financial exposure.
We self-insure. By self-insuring, we are able to offer our
employees excellent healthcare benefits at a reasonable cost.
However, our exposure is up to $20,000 per employee. So for
that employee and other employees who abuse FMLA out of the
work environment, we have a financial responsibility,
potentially, if they are ill during FMLA leave. So the option
that we have considered is to introduce a less comprehensive
HMO-type program at similar cost, with less benefit to the
employee. And we don't want to do that, and I think that would
be a mistake. But unfortunately, we may be faced with that.
Thank you.
[The prepared statement of Mr. Prybutok follows:]
Prepared Statement of Robert Prybutok
These comments specifically address three questions raised by the
committee:
Question 1. What has been your own experience, or that of your
company, with the Family Medical Leave Act and it's regulations.
Question 2. Are there ways in which the implementation of the act
might be improved?
Question 3. Given the importance of maintaining a work life balance
for all working Americans, what do you believe are the most reasonable
options to achieve the desired balance?
Polymer Technologies Inc. is a manufacturing company located in
Newark, Delaware. We have been in operation for 15 years. Currently we
have 90 employees at our primary facility located in Newark, Delaware
and 15 employees at a satellite facility in Northern New Jersey.
Polymer manufactures and markets a broad range of acoustical and
thermal composites sold to equipment manufacturers in the industrial,
transportation, power generation, medical, recreational and aircraft
markets.
From the time Polymer began operations we provided our employees
with 100 percent company paid healthcare benefits. The Delaware State
Chamber sponsored healthcare program enabled us to afford this benefit.
We soon followed by providing company paid short-and long-term
disability insurance and a company sponsored 401K plan. Employees earn
2 weeks vacation with 1 day added for each year of service. We allow
employees 5 sick days and 2 personal days per year. By offering a full
complement of benefits and being flexible in the administration of our
policies to help employees balance family life with business
obligations we have been able to avoid potential difficulties that FMLA
presents to employers.
In our production environment most processes require a minimum
number of experienced operators. These work cells cannot operate
effectively if they are short an experienced employee. We recognize the
need to cross train in order to have flexibility in our work force in
order to provide coverage due to vacations, sickness and other
scheduled and unscheduled events which take an employee away from the
manufacturing environment. The normal approach to determining
additional staffing is typically conservative since labor costs drive
overhead costs and potentially put manufacturers in an uncompetitive
position. With competition from low labor markets this pressure for
cost containment becomes even more acute.
FMLA presents a danger to small manufacturers since it enables
employees to take an extended leave while obligating the employer to
maintain their position or provide an equivalent position. As employees
take advantage of these laws the labor cost per unit of production time
increases. Other costs are associated with the lack of efficiency in
keeping a position open for the duration of the leave. Since the work
must be adequately covered, the burden falls on fellow employees or
expensive temporary workers. When the employee uses this time to search
for another job or other endeavors that cause them to not return to
work, an even more significant cost and performance impact falls on the
company.
A potential problem with FMLA is that employees who are more
financially independent or have more resources may be in a better
position to implement FMLA to the fullest extent possible where as co-
workers with less resources will be much more judicious in utilizing
FMLA because they need the income. This presents potential personnel
issues within the organization since those workers who are impacted by
having to handle the workload of the chronic missing employee will
develop a negative attitude. Of course, under FMLA the company is
powerless to manage this situation except by insuring that adequate
``justification'' accompanies the employee's absence.
From Polymer Technologies perspective FMLA has not been any more or
less difficult than other Government employment laws or regulations to
understand or administer. Understanding the law, as it is written, is
extremely difficult however, we rely on well-written guides which
explain FMLA in normal English, sighting examples and case law. This is
most helpful however; there is still some confusion and lack of clear
direction and definition in certain areas.
Over the past 2 years Polymer Technologies has had 5 cases where
FMLA was utilized. Most of these cases were pretty straightforward
however in one case the employee did not return to work and had a
negative impact on the company performance. In this situation the
employee who did not return to work took FMLA upon the birth of their
child. Their income was supplemented for the first 6 weeks through our
short-term disability program. We continued to pay healthcare benefits
and held their position open with the expectation of the employee
returning to work. The employee did not return to work and we lost
valuable time in searching and hiring a replacement.
Polymer Technologies self-insures for our healthcare coverage
thereby offering our employees excellent coverage in relationship to
our total out of pocket costs. However, there is the potential of a
$20,000 per employee stop loss which we are responsible for. An
employee on FMLA who does not intend to return to work can potentially
have an accident or other major healthcare issue during this leave
period. By attempting to be pro active and responsive in offering our
employees an excellent benefit we find ourselves exposed through this
Government mandate. There is a compelling motivation to back off and
provide a low cost HMO program that limits our financial liability. In
addition we, like most small manufacturers, are concerned over
Government mandates in areas of health and welfare which can remove our
flexibility in administering personnel policies and adding additional
cost burdens in an economic environment where increasing prices to
cover increased costs is near impossible!
One area where FMLA presents a difficulty is in the vague
interpretation of a ``Serious Health Condition.'' In those areas where
the definition of employment law or regulations is vague, qualitative
or subject to interpretation too much resource is spent on an
individual situation.
Another area of concern is understanding the conflict between FMLA
and other legislation such as ADA. An employee on FMLA may then acquire
a disabeling injury or condition and remain out an extended period
beyond FMLA. The companies liability is not clearly defined.
An improvement in FMLA would be a more specific definition of where
FMLA must be utilized and what constitutes a ``Serious Health
Condition.'' The law should also be more specific regarding the
employee's obligation where healthcare and other benefits are provided
by the employer with the full intention of the employee returning to
work. Should the employee not return to work they should clearly be
responsible for re-imbursement of these costs. This would limit
employees from abusing FMLA while not intending to return to work for
personal reasons or because they are utilizing FMLA while searching
alternate employment.
In the United States we enjoy a free enterprise system structured
such that entrepenurers have a much easier time starting businesses,
having access to resources and capital and a higher probability of
success than our world counterparts. Our industrial environment has
become increasingly sophisticated and the success of our system has
resulted in low unemployment and a growing economy, unlike our European
partners. The competition for employees in industry is significant and
companies today realize they must offer competitive benefits and a
reasonably flexible administration of benefits including work schedules
in order to hire and retain quality employees. Insuring affordable
healthcare is available to small manufacturers is an important step
towards allowing them a vehicle for providing a strong benefits package
to their employees. This is a major requisite for fostering positive
employer/employee relationships in small businesses. Because Polymer
Technologies, Inc. has always provided comprehensive benefits to our
employees and has been responsive to employee's personal needs', FMLA
has not been a major burden.
Employers and employees must both approach the issue of the balance
between work and life from a responsible and responsive perspective.
Most employers, like Polymer technologies are responsive to those
employees who demonstrate a positive work ethic and positive
motivation. When mandates remove employers' flexibility and
consequently their ability to differentiate in administering benefits
then policies and benefits will seek the least cost alternative.
The Chairman. Thank you.
Ms. Willman?
STATEMENT OF SUE WILLMAN, ATTORNEY, SPENCER FANE, KANSAS CITY,
MO
Ms. Willman. As a lawyer, I represent only employers. It is
important to know that. I have dealt with hundreds of employers
on hundreds of FMLA issues since its enactment. Overall, I find
employers to be very supportive of the act itself and genuinely
interested in complying with it and honoring legitimate
requests for FMLA leave. I have never had an employer tell me
that they want to abolish the act, although they would like to
see some enhancements and fine-tuning of the regulations.
Over the last several years, the questions I get from
employers about FMLA really fall into two categories. I get
questions about the definition of ``serious health condition''
and how to interpret it and how to decide if a particular
absence falls within that definition. And I get questions about
how to stop abuse of FMLA intermittent leave. Those are the two
main questions that come to my attention as a lawyer.
I think it is important to focus on what is a problem under
the FMLA regulations--not the act itself--and also to focus on
what is not a problem. Under the FMLA there are two types of
leaves. There is family leave and there is medical leave. I do
not believe there are problems with the family leave portion of
the FMLA or the regulations.
Under the medical part of FMLA, there are actually three
types of leaves. We have continuous leaves for temporary
medical conditions, and I do not believe that continuous leaves
of absence are a problem. That is the person who goes out for
surgery and they come back to work; it is a short-term
condition, you can plan for it, you can schedule it, they are
legitimate, it is verifiable.
Then there are, the second type of medical leave, the
intermittent leave for temporary conditions. Again, I think
there are some issues with those because of the definition of
``serious health condition,'' but overall they are usually for
planned or scheduled medical treatment and they are verifiable
types of leaves. I don't believe there is a major problem
there.
But the third type of medical leave, the intermittent leave
for permanent conditions, or the chronic serious health
condition, is where we are seeing abuses under the FMLA. And if
there is one issue that needs to be addressed in addition to
the definition of ``serious health condition,'' it is abuses of
the intermittent leave provisions.
[The statements of Ms. Willman follows:]
Position Statement of Sue K. Willman
July 8, 2005.
Hon. Michael Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Hon. Edward Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Re: Position Statement on the Need for FMLA Regulatory Reform
Dear Senator Enzi and Senator Kennedy: I want to thank both of you
and the entire Senate Health, Education, Labor, and Pensions Committee
for the opportunity to participate on June 23 as a witness at the
committee's Roundtable on ``The Family and Medical Leave Act: A Dozen
Years of Experience.'' It was an honor and privilege for me to share my
perspective on the FMLA and its regulations with the committee at that
time.
As indicated in my testimony, I am a strong advocate for FMLA
regulatory reform. It is my belief that FMLA regulatory reform will
help ensure that the act itself is properly respected in good faith by
both employers and employees and that both groups have a better
understanding of what their respective rights and obligations are. I am
neither pro-employer nor pro-employee on FMLA regulatory reform issues.
I am pro-fairness.
FMLA regulatory reform provides the perfect opportunity for a bi-
partisan effort to promote the original intent and purposes of the act.
I urge the committee, all Members of Congress, and the Administration
to support FMLA regulatory reform. I firmly believe that the
regulations can be revised by DOL in a manner that will strike a fairer
balance between employer and employee rights and obligations, while at
the same time respecting the entitlements granted by the act, reducing
FMLA litigation, and preventing FMLA abuse.
This position statement is submitted to you and the committee to
supplement my testimony and as an official part of the committee's
record. It includes my responses to the questions posed during and
after the Roundtable by each of you.
A. Expertise on The FMLA and Its Regulations
Spencer Fane law firm represents management exclusively on labor
and employment matters. We represent clients of all sizes, in all
industries and throughout the country. As a result, our 25+ labor and
employment attorneys have dealt with hundreds of clients on hundreds of
FMLA issues.
I have been practicing labor and employment law for over 24 years.
I have served as both in-house employment counsel as well as a private
practitioner specializing in labor/employment law. Prior to becoming an
attorney, I was employed as a human resources professional for 3 years.
I am also a certified Senior Professional in Human Resources (SPHR).
As an attorney, I specialize in what we refer to as ``preventative
employment law'' issues. My practice focuses on assisting clients in
complying with Federal, State, and local employment laws, preventing
employment-related claims, and minimizing potential liability.
I have considerable experience with and expertise on the FMLA and
its regulations. Since the FMLA's inception, I have handled hundreds of
FMLA matters. Over the last several years, requests from clients for
assistance on FMLA issues have increased. I receive inquiries and
requests for legal assistance on FMLA issues far more frequently than
any other employment law issue. For the last couple of years, I have
received requests from clients on FMLA issues almost every day. For
more information regarding my FMLA expertise, I refer you to the
summary attached as Exhibit ``A.''
B. What Needs To Be Reformed: The Act or The Regulations?
As I mentioned during my testimony, I firmly believe that the FMLA
regulations need to be reformed, not the act itself. FMLA compliance
has been unnecessarily complicated by a set of regulations that are
difficult for employers to understand and apply and that allow abuse by
employees at the expense of the employees who do not abuse the FMLA's
protections.
Overall, I find employers to be very supportive of the act itself
and its intent and spirit. I also find employers to be compassionate
towards their employees and genuinely interested in complying with the
act and honoring legitimate requests for FMLA leave. No employer has
ever told me that it wishes to see the act itself repealed. However,
most of the employers with whom I work or have spoken are very
frustrated by the FMLA regulations and have indicated that FMLA
regulatory reform is very much needed.
I do not believe it makes any sense to consider expansion of the
act itself (as advocated by employee-oriented organizations) when the
current FMLA regulations are creating numerous compliance challenges
and problems that need to be addressed. We need to fix the problems,
not expand them.
I also do not believe that FMLA regulatory reform should be delayed
in order for DOL to commission comprehensive, methodologically
rigorous, independent research on the FMLA to update DOL's 1995 and
2000 studies, as some have suggested. Although I am not opposed to FMLA
research per se, there is already sufficient research and evidence that
the FMLA regulations need to be revised. As a practical matter, FMLA
research should be conducted on an ongoing basis by DOL, and not just
when it is conveniently needed by special interest groups as an excuse
for delaying much needed regulatory reform. Any proposal for research
at this time strikes me more as a stall tactic than as a reflection of
any real need for the research.
C. Why is There a Need for FMLA Regulatory Reform?
There are numerous reasons why FMLA regulatory reform is needed and
needed now. I have summarized some of those reasons below (both legal
and business reasons):
1. Compliance with Ragsdale Decision. The U.S. Supreme Court, in
the first FMLA case decided by it (Ragsdale v. Wolverine Worldwide,
Inc., 122 S.Ct. 1155, decided March 19, 2002), has already invalidated
at least one FMLA regulation (29 CFR 825.700(a)) as being contrary to
the act and beyond the DOL's authority. To date, the DOL has not
removed the invalidated regulation.
2. Compliance with Ragsdale Principles on Categorical Penalties. In
the Ragsdale case, the Supreme Court found the regulation in question
to be a categorical penalty that is contrary to the act's remedial
design. The Supreme Court specifically stated that ``The challenged
regulation is invalid because it alters the FMLA's cause of action in a
fundamental way: It relieves employees of the burden of proving any
real impairment of their rights and resulting prejudice.'' Although the
Supreme Court was called upon to consider only one particular FMLA
regulation, the broad principles announced by the Court cast doubt on
the validity of any FMLA regulation that includes a categorical
penalty. Therefore, all categorical penalties in the regulations need
to be removed.
In addition to the specific regulation invalidated by the Supreme
Court, there are at least 12 other FMLA regulations that clearly
contain categorical penalties and many more that arguably contain
categorical penalties. (See Exhibit ``B'' for a list of other
regulations that contain categorical penalties). To date, the DOL has
not removed any of these other categorical penalties.
3. Reduction of Litigation Over Regulatory Validity Issues. Both
before and since the Ragsdale decision, there has been a significant
amount of litigation regarding the validity of various FMLA
regulations. In 67 percent of the reported cases on validity issues,
various FMLA regulations have been invalidated and determined to have
been outside the scope of the DOL's authority or contrary to the act
(or would have been so decided if the court had ruled after the date of
the Ragsdale decision).
Litigation over validity issues has continued even after the
Ragsdale decision. Much of this litigation could be avoided by revising
the regulations. Litigation over validity issues is not in anyone's
best interests. It costs all parties (the courts, employees and
employers) unnecessary time and expense. To date, the DOL has not taken
steps to address these numerous validity questions.
The above data is taken from an FMLA litigation study that I and
other colleagues at Spencer Fane conducted, beginning in 2002 and
updated annually since then. Our study was prompted by a belief (based
on our review of daily court case advance sheets) that regulatory
validity questions seemed to be increasing. We wanted to determine if
that was actually occurring. Our study was limited to FMLA cases in
which the validity of an FMLA regulation was challenged.
A copy of the study is attached and incorporated by reference. It
indicates that, as of March 31, 2005, there have been 79 reported court
decisions in which the validity of an FMLA regulation was challenged.
The validity of 13 different FMLA regulations was called into question.
Of those 79 decisions, 67 included a ruling on the validity issue (and
12 were decided on other grounds). Of the 67 decisions in which there
was a ruling on the validity issue, 67 percent of them held the
regulation to be invalid or would have held it to be invalid if the
case had been decided after (rather than before) the Ragsdale decision.
The Ragsdale decision has not stopped the litigation over validity
issues. Although there have been more than 100 cases (not included in
our study) that have followed or cited to the Ragsdale decision, there
are still numerous other lawsuits in which validity issues are being
litigated. Such litigation is not a good use of judicial, employer, or
employee effort and resources when sound regulatory revisions would
likely preclude much of this litigation.
The lawsuits mentioned above do not include hundreds of FMLA
lawsuits involving non-validity issues (such as interpretation,
application, and other problems faced by employers in attempting to
comply with the FMLA). When those lawsuits are added to the validity
lawsuits, there is a significant amount of time and expense being
invested over issues that could be and should be resolved at the
regulatory level instead of in the courts.
4. Prevention of FMLA Abuse. The regulations allow easy abuse by
employees of FMLA entitlements without providing employers with any
effective tools to prevent such abuses. In fact, the regulations
actually tie the hands of the employer by prohibiting certain actions
that would help an employer combat the abuses. The FMLA has become a
national vacation policy for employees who are inclined to abuse the
FMLA. Such employees can frequently be absent from work with no adverse
consequences.
If an employee abuses the FMLA, how much work time can he/she miss?
Under the FMLA, an eligible full-time employee is entitled to 60 FMLA
days per year. This means that the employee can actually miss work at
least 1 day a week with impunity by taking FMLA intermittent leave.
This allows an employee to be absent from work 23 percent of the time
for the rest of the employee's work life (i.e., he/she can miss 60 of
the 260 work days in a year).
How easy is it for abuse to occur? Most of the abuses involve
intermittent leave for unscheduled absences due to a chronic serious
health condition. In particular, an employee with a chronic serious
health condition simply has to: (a) see his/her doctor once and obtain
a prescription for medication; (b) obtain a medical certification that
he/she needs to be absent from work periodically (intermittently) for
the rest of his/her lifetime (which certification seems fairly easy to
obtain from his/her health care provider); and (c) call the employer
right before work begins to say that he/she is taking an ``FMLA day.''
Although intermittent leave is only permitted if ``medically
necessary,'' it is the employee (not his/her health care provider) who
is making that decision on a day-to-day basis, while the employer is
prohibited from even talking to the employee's health care provider
except with the employee's consent (which the employee is not required
to give and does not voluntarily give very often).
Who is affected by FMLA abuses? Fortunately, there is a small
percentage of employees who abuse the FMLA. Unfortunately, the abuses
by even a small percentage of employees have a tremendous impact on the
rest of the workforce (i.e., the majority of employees who do not abuse
the FMLA). When an abuser is absent, his/her workload is usually
absorbed by other employees (non-abusers). Abusers typically give no
advance notice of the need to be absent (other than calling in shortly
before the start of his/her shift). Consequently, it is usually not
feasible for an employer to obtain temporary help, and the rest of the
workforce has to cover for the abuser. It is incredibly unfair to
expect the vast majority of employees who do not abuse the FMLA to do
the work of the abusers.
In addition, abuse of the FMLA creates morale problems within the
workforce as a whole. The non-abusers know when abuse is occurring, and
they resent the abuses and how it affects their own workloads. Non-
abusers have even started filing internal complaints with their
employers about FMLA abuses. They wonder why the employer does not fire
the abusers.
The reason why abusers are not fired for abusing the FMLA is
because it is virtually impossible for an employer to take any adverse
action. The FMLA regulations on intermittent leave for chronic
conditions allow the employee (not a doctor) to make the medical
determination as to whether he/she can work on any given day. The
employer has no effective mechanism for verifying whether the employee
is truly unable to work due to his/her medical condition or if the
employee is even absent that day because of the medical condition. If
the employer requires a note from the employee's doctor regarding a
particular FMLA absence (which the employer may request no more often
than every 30 days), the abusers seem to be able to easily obtain one.
Healthcare providers have told me that they provide such notes
(normally after the fact), usually based solely on the employee's word
that he/she was unable to work. The healthcare provider has no way of
knowing retroactively, and without having examined the employee,
whether the employee's absence was medically necessary. If a healthcare
provider is in no position to question the employee's judgment about
the ``medical necessity'' of an absence, who is? And why is the
employee allowed to be the sole party who makes that decision,
especially since the employee has such a vested interest in the
outcome?
Based on my experience in working with employers, I believe that
they are interested in and doing their best to comply with the FMLA and
to honor legitimate requests for FMLA leave. I also know that they are
frustrated by and strongly opposed to FMLA abuses. Most of the employer
witnesses at the Roundtable spoke out strongly in favor of honoring
employees' rights and spoke out strongly against the abuse issue.
Although the Roundtable witnesses from employee rights'
organizations voiced strong support of FMLA rights and expansion, I do
not recall any of them voicing strong opposition to FMLA abuse or the
need to prevent it. I have also read a fair amount of FMLA literature
that has been issued by both labor organizations and advocates for
employee rights. The literature does not seem to address the abuse
issue. I am genuinely baffled by what seems to be an apparent lack of
concern by these groups about FMLA abuse (especially when the vast
majority of their constituents and those they claim to protect are non-
abusers who bear the brunt of the abuses).
In light of the fact that non-abusers are adversely affected by
FMLA abuse (in terms of their own morale and by absorbing the abusers'
workloads), I would think that labor and employee advocate groups would
be taking a strong position against FMLA abuse. I encourage these
groups to become vocal about their opposition to FMLA abuse, instead of
wearing blinders and ignoring it or trivializing it. They may claim
that it is only a minority of employees who abuse the FMLA (a fact I do
not dispute), but the effect of the abuse hurts the majority of
employees who do not abuse it. Many of these groups are in favor of
expanding the FMLA to give protection (FMLA leave) to employees who are
the victims of domestic abuse. I would think they would be as equally
committed to protecting employees who are the victims of FMLA abuse.
The abuse issue provides an ideal opportunity for the labor and
employee advocate groups to speak out against FMLA abuse (on behalf of
the significant majority of their members who are non-abusers), to
encourage DOL to address the abuse issue, and to join forces with
employers to minimize abuses. Regulatory reform is needed to address
the abuse issue, if for no other reason than out of respect for the
vast majority of employees who make legitimate use of the FMLA and do
not abuse it. The abuses of the few simply should not be allowed to
interfere with or outweigh the rights of the many who do not abuse the
FMLA.
5. Reduction of Litigation Over the Act's Intent. The act, as
adopted by Congress, specifically states at the beginning that it is
``An Act . . . To grant family and temporary medical leave under
certain circumstances.'' [Emphasis added.] It was never intended to
permit ``permanent'' medical leaves, even on an intermittent basis. It
is the regulations that allow these permanent medical leaves, which are
the types of FMLA leaves where the abuses are occurring.
The Courts have already started to address this issue involving
permanent FMLA medical leaves. Two Circuit Courts of Appeal (the 7th
and 8th Circuits), as well as various Federal districts courts, have
taken the position that the act was not intended to allow FMLA leaves
on an intermittent basis for the rest of an employee's work life:
``Courts have been reluctant to read the FMLA as allowing
unscheduled and unpredictable, but cumulatively substantial,
absences . . .'' Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th
Cir. 2001).
``. . . the FMLA does not provide an employee suffering from
depression with a right to `unscheduled and unpredictable, but
cumulatively substantial, absences' or a right to `take
unscheduled leave at a moment's notice for the rest of her
career.'' Spangler v. Federal Home Loan Bank of Des Moines, 278
F.3d 847 (8th Cir. 2001).
I believe that the Courts will, sooner or later, resolve this issue
about permanent medical leaves. However, a better resolution would be
for DOL to address it with revised regulations. If DOL addresses the
issue, all stakeholders will have the opportunity to provide input and
proposed resolutions, which, in my opinion, is preferable for all
concerned than a court mandate.
6. Elimination of Interpretive Problems, Complexity, and
Inconsistencies. The FMLA regulations are more difficult for employers
to understand, interpret and apply than they need to be. They are the
most complex set of employment regulations with more interpretive
problems than I have ever seen in my career. The regulations suffer
from the following deficiencies (which are examples, but by no means
intended to be an exhaustive list):
a. The regulations create numerous interpretation problems. One of
the most common questions raised by employers when they consult with me
is the definition of ``serious health condition.'' The definition is
extremely long, with numerous sub-parts, and has to be read in
conjunction with other definitions and other regulatory provisions.
b. The regulations create numerous application problems. The
various notice provisions are a prime example. Employers are given
extremely short and unrealistic time frames in which to comply with
some of the notice provisions.
c. Some of the topics covered in the regulations are covered in
more than one regulation, thereby making it difficult to find all
applicable provisions.
d. Some of the regulations appear to conflict with each other.
e. DOL has issued advisory opinion letters that appear to expand
not only the act but the regulations themselves.
D. What Specific Regulatory Reform is Needed?
Although I believe that FMLA regulatory reform is sorely needed and
long overdue, not all of the regulations are problematic. I believe it
is appropriate for DOL to focus on those parts of the regulations that
are creating the problems.
Types of Leaves. Before I discuss specific regulatory issues that
need to be addressed, I believe it is helpful to understand the types
of leaves that are available under the FMLA. Some of them are
problematic; some of them are not.
1. Family Leaves. The act provides two types of FMLA leave: family
leave and medical leave. Family leave (sometimes referred to as
maternity and paternity leave) is for the purpose of providing bonding
time between a parent and a newborn child, newly adopted child, or a
newly placed foster child. Family leave is generally not a problem for
employers for three reasons:
a. It is easily verifiable. In addition, it is normally noticeable.
When an employee has a new child, this milestone event is normally
well-known by the employer and other employees. This, of course, makes
it difficult for an employee to misrepresent his/her need for FMLA
leave.
b. It must be taken within 1 year after the birth, adoption, or
foster placement of the child. This means that the leave will be for a
temporary period of time (not a permanent period of time or for the
rest of the employee's work life).
c. It must be taken on a continuous basis, unless the employer
consents to it being taken on an intermittent or reduced schedule
basis. As a practical matter, most employees request family leave on a
continuous basis, and most employers usually require that such a leave
be taken on a continuous basis. However, when both parties mutually
agree to taking such leave on an intermittent or reduced schedule
basis, a specific schedule for the leave is established (such as the
employee working fewer hours each day or fewer days each week). This
means that the employer can plan for the absence and arrange to have
the employee's workload temporarily allocated to others in a way that
will not be unduly burdensome. This also means that the employee cannot
abuse FMLA leave by taking it on an unscheduled, unpredictable basis.
As a result of the above factors, we generally do not see abuses of
family leave. I do not believe that the FMLA regulations need to be
fixed in any major way with respect to family leave.
2. Medical Leaves. The other type of leave under the act is the
medical leave. In my experience working with employers, certain types
of FMLA medical leaves are not as problematic as others. The FMLA
provides two types of medical leaves: continuous leaves and
intermittent leaves. Overall, continuous leaves are generally not a
problem in terms of abuse, whereas intermittent leaves have so many
loopholes that abuse can easily occur. I have discussed each of these
types of leaves below:
a. Continuous Medical Leaves. Continuous leaves are normally taken
for short-term or acute medical conditions. Sometimes such leaves last
for more than a week (up to the maximum of 12 weeks); sometimes they
last a week or less (and as short as one day or less).
(1) Continuous Medical Leaves of More Than 1 Week. If a continuous
leave is expected to last more than a full week, an employer usually
does not experience abuses. Such leaves are easily verifiable in most
instances. In many cases, the leave is scheduled in advance due to
planned surgery/medical procedures and recovery therefrom. In addition,
an employer can normally make appropriate arrangements to reallocate
the employer's workload. Employers generally do not experience abuse of
these types of longer-term continuous leaves.
(2) Continuous Medical Leaves of 1 Week or Less. If a continuous
leave is expected to last a week or less, an employer often experiences
problems. The major problem with such short-term continuous leaves is
not usually abuse by employees as much as doubt about whether the
condition in question is truly a ``serious'' health condition. If an
employee only has to miss 2 or 3 days of work, one wonders just how
serious the condition can possibly be. This particular issue goes more
to the definition of ``serious health condition'' than abuse, and I
refer you to a subsequent discussion about that issue.
b. Intermittent Medical Leaves. Intermittent leaves are sometimes
taken for short-term or acute conditions and sometimes are taken for
permanent or chronic conditions.
(1) Intermittent Medical Leaves for Short-Term or Acute Conditions.
When an intermittent leave is taken for a short-term condition, it is
usually needed because of planned or scheduled treatment (such as
radiation treatment, chemotherapy, physical therapy, etc.). Under the
FMLA regulations, any intermittent leave for planned or scheduled
treatment requires that the employee schedule the treatment to be as
least disruptive to the employer's operations as possible.
Such leaves are easily verifiable, and the employer generally knows
that the employee is in fact using the time off for a valid FMLA
reason. The employer also knows that such leaves have a definitive
ending point (anywhere up to perhaps 6 months), at which point the
employee will return to full duty. In other words, they are
predictable. In light of the foregoing, employers generally do not
experience a substantial amount of abuse when intermittent leave is
used for planned or scheduled treatment/therapy.
(2) Intermittent Medical Leaves for Long-Term, Permanent or Chronic
Conditions (Excluding Terminal Conditions). Intermittent leave for a
long-term, permanent, or chronic condition is the type of leave where
most FMLA abuses occur. This type of leave is discussed in more detail
in the next section.
Problematic Areas. As explained above, some types of FMLA leave are
not a problem and no major revision of the regulations regarding them
may be necessary. However, other types of leaves and FMLA issues create
major problems. The following section identifies some of the FMLA
issues that create major compliance and abuse problems that need to be
addressed with revised regulations:
1. Intermittent Medical Leaves for Long-Term, Permanent, or Chronic
Conditions and Abuse. Abuse of the FMLA is occurring with increasing
frequency in connection with intermittent medical leaves for long-term,
permanent, or chronic conditions (excluding terminal conditions). There
are many medical conditions that appear to qualify as long-term,
permanent or chronic ones. The most common ones for which FMLA
intermittent leave is requested include migraines, asthma, arthritis,
bronchitis, fibromyalgia, hypertension, sleep apnea, and mental
disorders (such as depression, anxiety, bi-polar disorder, post-
traumatic stress syndrome, etc.).
Most of these conditions have several common denominators: (a)
their symptoms are subjective in nature; (b) the extent and scope of
the symptoms are difficult for a healthcare provider to evaluate and
measure; (c) the conditions are difficult to treat; and (d) the most
common form of treatment appears to be prescription medication.
Once the employee's healthcare provider certifies that the employee
has the medical condition and that the employee will periodically need
to be absent because of it, all the employee has to do is call the
employer before his/her shift begins and state that he/she is taking an
FMLA day due to the condition. The employee does not need to see or
even call the healthcare provider. The employee gets to make the
decision as to whether the condition renders him/her unable to work.
The employer gets no say on the medical necessity of the absence; the
healthcare provider need not be contacted or consulted by the employee
and the employer is prohibited from making such contact.
In most of these cases, the employer does not doubt that the
condition itself exists. Therefore, it makes no sense to obtain a
second and third medical opinion regarding the existence of the
condition. The abuses arise in connection with the employee using the
condition as an excuse to be absent from work. An employer has no
effective mechanism under the regulations: (a) to ascertain with any
degree of certainty whether an absent on any particular day is
``serious'' enough to justify an absence from work; or (b) to determine
if the absence is really related to an FMLA condition at all. Employees
who abuse the FMLA are well aware of these obstacles faced by an
employer. These obstacles are one of the reasons that abuse can so
easily occur in connection with an intermittent leave for a long-term,
permanent, or chronic condition.
2. Definition of ``Serious Health Condition.'' The two most common
questions I get from employers about the FMLA involve the abuse issue
discussed above and the definition of ``serious health condition.'' As
mentioned earlier in this letter, the definition is extremely complex
and lengthy and seems to have been expanded by the DOL to the point of
covering what would normally be considered as ``non-serious'' health
conditions. The definition needs a major overhaul.
3. Medical Information and Certification Process. If an employee
wants to exercise his/her rights under the FMLA, an employer should be
able to obtain necessary medical information to verify the existence of
a serious health condition and the need for FMLA leave. Instead, the
employer is generally restricted from doing so. An employer has such
rights under the Americans with Disabilities Act (ADA) and is not
restricted from obtaining necessary medical information to verify the
existence of a disability or the need for an accommodation under that
law. It makes no sense at all why there are two totally different
approaches to this issue under the FMLA and ADA (especially when the
FMLA regulations incorporate the ADA definition of ``essential job
functions'' and makes reference to the ADA in several provisions).
4. Notice Provisions. The FMLA regulations go to great length and
in great detail regarding notice provisions imposed upon employers. In
some cases, these notice provisions are unrealistic and arguably are
beyond the scope of DOL's authority (considering that the only notice
required by the act itself is a poster). Although employers are subject
to numerous notice requirements, the regulations place very little
responsibility on employees to provide adequate notice to employers of
the need for FMLA leave.
5. Other Problematic Areas. I believe the above issues are the
major problematic areas under the FMLA regulations. However, they are
by no means the only problems.
Employers also face many challenges related to: (a) tracking FMLA
intermittent leave (since it can be used in increments equal to the
smallest increment that can be measured by the employer's system, such
as one minute); (b) not being able to disqualify an employee who has
taken FMLA leave from receiving a perfect attendance bonus (even if the
employee has missed a substantial part of the measuring period and even
though employees with better attendance records who are not eligible
for FMLA can be disqualified); and (c) not being able to require an
employee to accept light duty (since the FMLA regulations allow an
employee to take full-time leave even if the employee can perform some
or all of his/her job).
I strongly believe that the problems identified above can be
resolved through FMLA regulatory reform in a manner that is consistent
with the intent of the act, that does not result in any major reduction
of regulatory protections for employees, and that will not negatively
affect employees who legitimately use FMLA leave. I am not proposing
that we tear the house down; I am proposing that we scrub it and clean
it up.
Quite frankly, if DOL would just address and resolve what I believe
are the three biggest regulatory problems, I suspect that most of the
controversy surrounding the regulations would subside. First, DOL needs
to put meaning back into the word ``serious'' so that FMLA absences are
for truly ``serious'' health conditions. Second, DOL needs to limit
FMLA medical leaves to ``temporary'' medical leaves, especially since
the act itself specifies that it is for temporary medical leaves (not
permanent medical leaves, like the ones taken by abusers as a form of
vacation). Third, DOL needs to eliminate the obstacles that make
proving abuse almost impossible and to replace them with effective and
workable tools that employers can use to address abuse issues (like
permitting employers to have reasonable communications directly with
healthcare providers and requiring employees to provide consent for
those communications).
E. Conclusion
There is no question that the FMLA regulations need to be revised
so that they provide a meaningful and practical guide to FMLA
compliance. Employers deserve adequate notice and a clearer
understanding of what is required so that they can maximize their
chances of complying with the act. Employees deserve the opportunity to
exercise their rights in a legitimate manner without being able to
abuse the act.
In light of all of the foregoing, I encourage the committee, the
Senate, Congress as a whole, and the Administration to support FMLA
regulatory reform so that we can put the problems described above
behind us. The problems are fixable, and if properly fixed in a fair
and balanced manner, I have no doubt that FMLA problems, controversy,
and litigation over interpretative and validity questions will quickly
become a thing of the past.
Thank you for consideration of my comments and the opportunity to
share my perspective.
Respectfully submitted,
Sue K. Willman, JD, SPHR.
EXHIBIT A
SUMMARY OF FMLA EXPERIENCE AND EXPERTISE
SUE K. WILLMAN
1. Beginning in 2002, I and other colleagues at Spencer Fane
conducted and published an FMLA litigation study (``Reported Court
Cases in Which the Validity of an FMLA Regulation Has Been
Challenged''). We have updated that study on an annual basis since that
time. The most recent update was made available to the Senate Health,
Education, Labor, and Pensions Committee at the Roundtable on June 23.
A copy is attached as a part of this position statement.
2. I and two other colleagues at Spencer Fane prepared and
submitted an amicus curiae brief (on behalf of the Society for Human
Resource Management) in the first FMLA case to be heard by the U.S.
Supreme Court (Ragsdale v. Worldwide Wolverine, Inc., 122 S.Ct. 1155,
decided on March 22, 2002). Our brief raised the issue on which the
Supreme Court ultimately decided the Ragsdale case.
3. During the last several years, the Department of Labor (DOL) has
conducted series of meetings with various interest groups to discuss
their experiences with the FMLA regulations. I was one of numerous
witnesses who met with the DOL during those meetings.
4. For several years, I was involved with the National Coalition to
Protect Family Leave (formerly known as the FMLA Technical Corrections
Coalition). My primary role was to provide the legal perspective on the
challenges faced by employers in complying with the FMLA regulations.
5. I have made numerous presentations to human resource
professional organizations and conducted dozens of client training
sessions on FMLA compliance. I have also published materials on the
FMLA and been interviewed numerous times by the media regarding the
FMLA and its regulations.
EXHIBIT B
FMLA REGULATIONS WITH CATEGORICAL PENALTIES
The following 13 FMLA regulations (which include the regulation
invalidated by Ragsdale) are not intended to be an exhaustive list of
all FMLA regulations that include or arguably include categorical
penalties.
1. 29 CFR 825.207(h)
When an employee or employer elects to substitute paid leave (of
any type) for unpaid FMLA leave under circumstances permitted by these
regulations, and the employer's procedural requirements for taking that
kind of leave are less stringent than the requirements of FMLA (e.g.,
notice or certification requirements), only the less stringent
requirements may be imposed. An employee who complies with an
employer's less stringent leave plan requirements in such cases may not
have leave for an FMLA purpose delayed or denied on the grounds that
the employee has not complied with stricter requirements of FMLA.
However, where accrued paid vacation or personal leave is substituted
for unpaid FMLA leave for a serious health condition, an employee may
be required to comply with any less stringent medical certification
requirements of the employer's sick leave program. See 825.302(g),
825.205(e) and 825.306(c).
2. 29 CFR 825.208(c)
If the employer requires paid leave to be substituted for unpaid
leave, or that paid leave taken under an existing leave plan be counted
as FMLA leave, this decision must be made by the employer within 2
business days of the time the employee gives notice of the need for
leave, or, where the employer does not initially have sufficient
information to make a determination, when the employer determines that
the leave qualifies as FMLA leave if this happens later. The employer's
designation must be made before the leave starts, unless the employer
does not have sufficient information as to the employee's reason for
taking the leave until after the leave commenced. If the employer has
the requisite knowledge to make a determination that the paid leave is
for an FMLA reason at the time the employee either gives notice of the
need for leave or commences leave and fails to designate the leave as
FMLA leave (and so notify the employee in accordance with paragraph
(b)), the employer may not designate leave as FMLA leave retroactively,
and may designate only prospectively as of the date of notification to
the employee of the designation. In such circumstances, the employee is
subject to the full protections of the act, but none of the absence
preceding the notice to the employee of the designation may be counted
against the employee's 12-week FMLA leave entitlement.
3. 29 CFR 825.213(f)
When an employee fails to return to work, any health and non-health
benefit premiums which this section of the regulations permits an
employer to recover are a debt owed by the non-returning employee to
the employer. The existence of this debt caused by the employee's
failure to return to work does not alter the employer's
responsibilities for health benefits coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA
leave. To the extent recovery is allowed, the employer may recover the
costs through deduction from any sums due to the employee (e.g., unpaid
wages, vacation pay, profit sharing, etc.), provided such deductions do
not otherwise violate applicable Federal or State wage payment or other
laws. Alternatively, the employer may initiate legal action against the
employee to recover such costs.
4. 29 CFR 825.300(b)
An employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $100 for each separate offense. Furthermore, an employer that
fails to post the required notice cannot take any adverse action
against an employee, including denying FMLA leave, for failing to
furnish the employer with advance notice of a need to take FMLA leave.
5. 29 CFR 825.301(f)
If an employer fails to provide notice in accordance with the
provisions of this section, the employer may not take action against an
employee for failure to comply with any provision required to be set
forth in the notice.
6. 29 CFR 825.302(d)
An employer may also require an employee to comply with the
employer's usual and customary notice and procedural requirements for
requesting leave. For example, an employer may require that written
notice set forth the reasons for the requested leave, the anticipated
duration of the leave, and the anticipated start of the leave. However,
failure to follow such internal employer procedures will not permit an
employer to disallow or delay an employee's taking FMLA leave if the
employee gives timely verbal or other notice.
7. 29 CFR 825.302(g)
An employer may waive employees' FMLA notice requirements. In
addition, an employer may not require compliance with stricter FMLA
notice requirements where the provisions of a collective bargaining
agreement, State law, or applicable leave plan allow less advance
notice to the employer. For example, if an employee (or employer)
elects to substitute paid vacation leave for unpaid FMLA leave (see
825.207), and the employer's paid vacation leave plan imposes no prior
notification requirements for taking such vacation leave, no advance
notice may be required for the FMLA leave taken in these circumstances.
On the other hand, FMLA notice requirements would apply to a period of
unpaid FMLA leave, unless the employer imposes lesser notice
requirements on employees taking leave without pay.
8. 29 CFR 825.305(e)
If the employer's sick or medical leave plan imposes medical
certification requirements that are less stringent than the
certification requirements of these regulations, and the employee or
employer elects to substitute paid sick, vacation, personal or family
leave for unpaid FMLA leave where authorized (see 825.207), only the
employer's less stringent sick leave certification requirements may be
imposed.
9. 29 CFR 825.306(c)
If the employer's sick or medical leave plan requires less
information to be furnished in medical certifications than the
certification requirements of these regulations, and the employee or
employer elects to substitute paid sick, vacation, personal or family
leave for unpaid FMLA leave where authorized (see 825.207), only the
employer's lesser sick leave certification requirements may be imposed.
10. 29 CFR 825.310(c)
An employer may seek fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification itself need only be a simple
statement of an employee's ability to return to work. A healthcare
provider employed by the employer may contact the employee's healthcare
provider with the employee's permission, for purposes of clarification
of the employee's fitness to return to work. No additional information
may be acquired, and clarification may be requested only for the
serious health condition for which FMLA leave was taken. The employer
may not delay the employee's return to work while contact with the
healthcare provider is being made.
11. 29 CFR 825.310(f)
An employer may delay restoration to employment until an employee
submits a required fitness-for-duty certification unless the employer
has failed to provide the notices required in paragraph (e) of this
section.
12. 29 CFR 825.312(h)
If the employer has a uniformly-allied policy governing outside or
supplemental employment, such a policy may continue to apply to an
employee while on FMLA leave. An employer which does not have such a
policy may not deny benefits to which an employee is entitled under
FMLA on this basis unless the FMLA leave was fraudulently obtained as
in paragraph (g) of this section.
13. 29 CFR 825.700(a)
An employer must observe any employment benefit program or plan
that provides greater family or medical leave rights to employees than
the rights established by the FMLA. Conversely, the rights established
by the act may not be diminished by any employment benefit program or
plan. For example, a provision of a CBA which provides for
reinstatement to a position that is not equivalent because of seniority
(*e.g., provides lesser pay) is superseded by FMLA. If an employer
provides greater unpaid family leave rights than are afforded by FMLA,
the employer is not required to extend additional rights afforded by
FMLA, such as maintenance of health benefits (other than through
COBRA). If an employee takes paid or unpaid leave and the employer does
not designate the leave as FMLA leave, the leave taken does not count
against an employee's FMLA entitlement.
Reported Court Cases in Which the Validity of an FMLA Regulation Has
Been Challenged
EXECUTIVE SUMMARY
UPDATED REPORT MARCH 31, 2005
PREPARED BY: SUE KENNEDY WILLMAN, JD, SPHR AND KATHERINE A. HANSEN, JD,
SPENCER FANE BRITT & BROWNE LLP
INTRODUCTION
In 1993, Congress enacted the Family and Medical Leave Act of 1993,
Pub. L. No. 103-3, 107 Stat. 6, codified at 29 U.S.C. 2601, et seq.
and 5 U.S.C. 6381, et seq. (the Act or the FMLA). The FMLA became
effective on August 5, 1993. The act requires covered employers to
allow eligible employees 12 weeks of leave during a 12 month period to
attend to certain medical and family situations, including the birth of
a child, the adoption or foster care of a child, and the need to care
for one's self, spouse, child or parent with a serious health
condition.
Section 2654 of the act directs the Secretary of Labor to
promulgate regulations ``as are necessary to carry out'' the provisions
of the act. The Secretary of Labor accordingly issued interim final
regulations on June 4, 1993 (which became effective on August 5, 1993),
58 Fed. Reg. 31,812 (1993), codified at 29 C.F.R. pt. 825, and final
regulations on January 6, 1995 (which became effective on April 6,
1995), 60 Fed. Reg. 2237 (1995), replacing the interim final
regulations at 29 C.F.R. pt. 825.
Over the past several years, courts have addressed the validity of
these regulations in varying contexts. On March 19, 2002, the U.S.
Supreme Court issued its first decision under the FMLA. In that case,
the Supreme Court held that the FMLA regulation in question was
invalid. Ragsdale v. Wolverine Worldwide, Inc., 122 S. Ct. 1155 (2002).
As a result of the Ragsdale decision, the law firm of Spencer Fane
Britt & Browne LLP conducted a survey of all the court decisions
reported by Westlaw and/or LexisNexisTM involving challenges to the
validity of the FMLA regulations. The survey initially covered both
published and unpublished decisions reported as of March 20, 2002, and
was updated thereafter as of January 1, 2003; August 1, 2003; January
31, 2004; and March 31, 2005.
This report represents the results of the original and updated
survey. The information in this report does not purport to reflect all
lawsuits filed in which an FMLA regulation has been challenged or all
court decisions involving challenges to the validity of the
regulations. Instead, the information reflects only those lawsuits in
which court decisions have been rendered and the decisions were
reported by Westlaw and/or LexisNexisTM through March 31, 2005.
EXECUTIVE SUMMARY
There have been 79 reported court decisions in which
the validity of an FMLA regulation was challenged. All of the
underlying cases were filed and the relevant decisions were made during
the period of August 5, 1993 (the effective date of the act and the
Interim Final Regulations) through March 31, 2005.
These 79 court decisions represent 78 different court
cases. (There is one more court decision than the number of court cases
because a district court issued two separate opinions addressing two
separate challenges in the same underlying case). In the situation
where a lower court issued a reported decision which was subsequently
appealed, and the reviewing appellate court also issued a reported
decision, the lower court case and the appellate court case have been
treated as two separate court cases. These 79 court decisions (78 court
cases) represent 73 different underlying cases.
Of these 79 court decisions:
(a) 67 included a ruling on the validity issue; and
(b) 12 were decided on other grounds and did not include a ruling
on the validity issue.
Of the 67 court decisions in which there was a ruling
on the validity issue:
(a) 61 percent (41 decisions) held that the FMLA regulation in
question was invalid; and
(b) 39 percent (26 decisions) held that the FMLA regulation in
question was valid.
Of the 67 court decisions in which there was a ruling
on the validity issue, 51 were decided on or before the date of the
Supreme Court's decision in Ragsdale, and 4 of those decisions were
overruled by Ragsdale. When this factor is taken into account, it means
that:
67 percent (45 of 67 decisions) have held that the FMLA
regulation in question was invalid or would have held it to be invalid
if the case had been decided after Ragsdale.
analysis by regulation challenged
These 58 court decisions involved challenges to 13
different FMLA regulations:
825.110 825.207
825.216 825.302 825.700
825.111 825.208
825.220 825.303
825.114 825.215
825.301 825.305
The 3 most frequently challenged regulations were:
825.208(c)
825.110(d)
825.700(a)
Section 825.208(c) (or a related portion of 825.208)
was the subject of 32 of the reported decisions (of which 24 included a
ruling on the validity issue):
(a) 75 percent (18 of 24 decisions in which the validity issue was
decided) held the regulation to be invalid;
(b) 25 percent (6 of 24 decisions in which the validity issue was
decided) held the regulation to be valid; and
(c) 8 of the 32 cases were decided on other grounds and did not
include a ruling on the validity issue.
Note: The Ragsdale decision involved a regulation similar (in part) to
825.208(c). Consequently, the 8 decisions referenced above in which
the regulation was found to be valid may now be questionable in light
of Ragsdale.
Section 825.110(d) was the subject of 20 of the
reported decisions (of which 17 included a ruling on the validity
issue):
(a) 88 percent (15 of 17 decisions in which the validity issue was
decided) held the regulation to be invalid;
(b) 12 percent (2 of 17 decisions in which the validity issue was
decided) held the regulation to be valid; and
(c) 13 of the 20 cases were decided on other grounds and did not
include a ruling on the validity issue.
Section 825.700(a) was the subject of 14 of the
reported decisions (all of which included a ruling on the validity
issue):
(a) 71 percent (10 of 14 decisions in which the validity issue was
decided) held the regulation to be invalid; and
(b) 29 percent (4 of 14 decisions in which the validity issue was
decided) held the regulation to be valid.
Note: Section 825.700(a) was the subject of the Ragsdale decision. In
light of the Supreme Court's ruling that 85.700(a) is invalid, the 4
decisions referenced above in which the regulation was held to be valid
have now been overruled by Ragsdale.
ANALYSIS BY COURT AND GEOGRAPHIC AREA
Of the 67 court decisions in which there was a ruling
on the validity issue:
(a) 1 was decided by the U. S. Supreme Court;
(b) 21 were decided by Federal Courts of Appeal; and
(c) 45 were decided by Federal District Courts.
Although reported state court decisions were surveyed,
there were no state court decisions involving the validity of an FMLA
regulation.
At the Supreme Court level, the Court has only decided
one case involving the validity of an FMLA regulation. The Court found
the regulation ( 825.700(a)) to be invalid.
At the Federal Court of Appeals level (in which 21
decisions involved rulings on the validity issue):
(a) 10 of the 12 Circuits of the Court of Appeals (83 percent) have
issued rulings on the validity issue; and
(b) 2 of the 12 Circuits of the Court of Appeals (17 percent) have
not yet issued such a ruling (the 3rd and D.C. Circuits).
Of the 21 Federal Court of Appeals decisions in which
there has been a ruling on the validity issue:
(a) 52 percent (11 decisions) have held that the FMLA regulation in
question was invalid; and
(b) 48 percent (10 decisions) have held that the FMLA regulation in
question was valid.
Of the 10 Federal Court of Appeals decisions holding
the FMLA regulation in question invalid,
(a) 4 of the decisions (1 each by the 5th and 11th Circuits; 2 by
the 8th Circuit) involved the same regulation held to be invalid in
Ragsdale; and
(b) in all 4 decisions, that same regulation was held to be
invalid.
At the District Court level (in which 45 decisions have
involved rulings on the validity issue):
(a) 28 of the 94 District Courts (30 percent) have issued rulings
on the validity issue; and
(b) 66 of the 94 District Courts (70 percent) have not yet issued
such a ruling.
Of the 45 District Court decisions in which there has
been a ruling on the validity issue:
(a) 64 percent (29 decisions) have held that the FMLA regulation in
question was invalid; and
(b) 36 percent (16 decisions) have held that the FMLA regulation in
question was valid.
Of the 16 District Court decisions in which an FMLA
regulation was held to be valid, 12 were decided on or before the date
of the Supreme Court's decision in Ragsdale, and 4 of those decisions
were overruled by Ragsdale. When this factor is taken into account, it
means that:
73 percent (33 of 45 decisions) have held that the FMLA
regulation in question was invalid or would have held it to be invalid
if the case had been decided after Ragsdale.
Of the 45 District Court decisions in which there has
been a ruling on the validity issue:
(a) the underlying District Courts were located within 11 of the 12
Circuits of the Court of Appeals; and
(b) only 1 Circuit of the Court of Appeals (the D.C. Circuit) has
had no District Court decision involving a ruling on the validity
issue.
Of the 45 District Court decisions in which there has
been a ruling on the validity issue:
(a) the underlying District Courts were located in 24 of the 55 U.
S. states and territories (44 percent); and
(b) 31 of the 55 U.S. states and territories (56 percent) have not
yet had a District Court decision involving the validity of an FMLA
regulation.
Note: The U.S. states and territories include the 50 States, the
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the
Northern Mariana Islands.
Spencer Fane Britt & Browne LLP 2002, 2003,2004, 2005.
The Chairman. Thank you.
Ms. Dohnalek?
STATEMENT OF LAURIE DOHNALEK, NURSE MANAGER, GEORGETOWN
UNIVERSITY MEDICAL CENTER, WASHINGTON, DC
Ms. Dohnalek. Good morning and thank you for the privilege
and the opportunity to be here today.
I am a nurse manager for blood and marrow transplant
inpatient oncology, apheresis, and dialysis at Georgetown
University Hospital, and----
The Chairman. Can you pull the microphone just a little
closer to you?
Ms. Dohnalek [continuing]. And I have been a manager there
for 12 years, 8 years in my current position. And I would like
to say we are the only magnet hospital in Washington, DC.
I manage 75 full-time and part-time employees. Fifty of
those are registered nurses. My experience with Family and
Medical Leave goes back to its passage in 1993, and I would
like to share some of my personal and professional perspectives
with you.
I do believe that employees have responsibilities to
themselves and their families, along with work obligations. The
Family and Medical Leave Act supports this and, in theory, is
the right thing to do. However, in my experience as a nurse
manager, the implementation and components of the law can be
confusing, cumbersome, and difficult for the healthcare
employer, and may in fact jeopardize patient care and safety.
The fact that a hospital is a 24/7 operation creates additional
pressures on the organization due to this law. In a busy
hospital setting, units must be staffed appropriately to ensure
that patients are receiving the care they require by
individuals who are trained and qualified to provide this.
In this type of setting, it is difficult to maintain the
worker's secured position for 12 weeks. Most positions cannot
remain unfilled for this amount of time. Although temporary
help can provide a short-term alternative, it is expensive and,
typically, inefficient in a healthcare setting, especially when
dealing with specialized and critically ill patients, which we
do in many settings.
Staffing schedules made to ensure ratios that meet the
needs of the patients are done well in advance. In healthcare
there is rarely extra manpower, as many of you, I am sure, are
aware. The loss of an employee directly affects patient care
and impacts the entire team. In the Apheresis Center, for
example, the nurses require 6 months orientation to care for a
highly specialized patient population, so temporary help is not
a solution there. The nurse-patient ratio is 1-to-1 and there
are only two nurses that are employed under that budget. So if
one nurse is out, then we are short 50 percent.
So it can take many hours to manually develop a staffing
matrix that meets the needs of the patients and staff. If you
ask most nurse managers what their biggest dissatisfaction is,
it would be the lack of skilled, experienced, and capable
staff. The Family and Medical Leave Act can add to this heavy
load.
Thank you.
[The prepared statement of Ms. Dohnalek follows:]
Prepared Statement of Laurie J. Dohnalek
Mr. Chairman and Roundtable participants, my name is Laurie
Dohnalek. I am the nurse manager for the Blood and Marrow Transplant,
Inpatient Oncology, Apheresis and Dialysis Services at Georgetown
University Medical Center. I have been a nurse manager for 12 years and
in my current position for 8. As the nurse manager I am responsible for
the operational finances, personnel and quality of patient care on
these units which includes 75 full and part-time staff and the
scheduling of 50 registered professional nurses, and 25 nursing
assistants and unit secretaries. My experience with the Family Medical
Leave Act goes back to the date of its passage in 1993. I would like to
share my personal and professional perspectives with you as I have
dealt with this legislation as a nurse manager in an academic medical
center.
Family Medical Leave Act (FMLA): A Nurse Managers Perspective
Employees have responsibilities to themselves, and their families
along with work obligations. The Family Medical Leave Act supports this
and in theory is the right thing to do. However, in my experiences as a
nurse manager, the implementation and components of the law can be
confusing, cumbersome and difficult for the healthcare employer and may
in fact jeopardize patient care and safety.
The act itself can be somewhat vague in the following areas: who
qualifies, what is the definition of family members and what is
considered a serious health condition. If an individual is calling out
sick frequently, it is the obligation of the manager to provide them
with information on FMLA. Is this a time and attendance issue or a
legitimate health issue? The implications of not adhering to the law
are significant enough that the decisions are typically made in favor
of the employee. It can also be difficult to make decisions for or with
an employee not knowing basic information about the health problem, as
it is protected under this law.
The fact that hospitals are a 24/7 operation creates additional
pressures on the organization due to this law. In a busy hospital
setting, units must be staffed appropriately to ensure that patients
are receiving the care they require by individuals who are trained and
qualified to provide what is needed 24 hours a day. For example, on the
inpatient units, qualified experienced nurses must be able to respond
to patients 24 hours each day. In this type of setting it is difficult
to maintain the workers secured position for 12 weeks. Most positions
cannot remain unfilled for this amount of time. Although temporary help
can provide a short-term alternative, it is expensive and typically
inefficient in a healthcare setting, especially when dealing with
specialized and critically ill patients.
Overtime is another alternative but in an environment that is
already struggling because of shortages of nurses and allied healthcare
personnel, vacancies create a burden on already hard working staff and
additional costs to the hospital. Under this scenario, which
unfortunately is common, the hospital sustains a double loss. First the
loss of a trained and competent staff member and the financial burden
of paying and training a temporary worker who may not be able to
provide the level of care of the person he or she is replacing. In
addition, the hospital must also pay for the employment benefits for
the individual that is not working.
Intermittent Family Medical Leave (FML) and modified work schedules
may be the most difficult to staff and time consuming to track.
Staffing for a portion of a shift may be impossible and this period
typically goes uncovered. This impacts patient care and safety. This
also places undue burden on the system and colleagues. Other workers
are entitled to their time away from work but may feel obligated to
cover for the employee out on FML. Although the employee is requested
to schedule leave at times that does not unduly disrupt operations and
to notify the employer in advance, how can the organization be certain
of this or control this? Covering for a certain time off, i.e. Mondays
or extended periods is less cumbersome than intermittent short periods
in a healthcare setting.
Staffing schedules are made to ensure ratios that meet the needs of
the patients. In healthcare there is rarely extra manpower. The loss of
an employee directly affects patient care and impacts the entire team.
In the Apheresis Center the nurses require 6 months orientation to care
for this highly specialized patient population so temporary help is not
a solution for this department. In addition the nurse to patient ratio
is typically 1:1. Although other unit staff will and do attempt to
cover for manpower losses, the nurse manager is always concerned about
the impacts on the patient care environment, and especially the health
and morale of those who are assigned to the unit. Fairness to the
employee and maintaining the integrity of the unit is not easy under
theses circumstances.
It can take many hours to manually develop a staffing matrix that
meets the needs of the patients and staff, while assuring fairness.
When staff are taken out of the schedule for any reason it creates
chaos and additional costs for the organization. If you ask most nurse
managers what their biggest dissatisfaction is, it would be the lack of
skilled, experienced and capable staff. The Family Medical Leave Act
can add to that heavy load.
The administrative time needed to manage this can be excessive. The
time to track time off, paperwork, talking with physicians, coverage,
human resource and employee health collaboration, and legal involvement
may be extensive.
Administrative Recommendations
Minimize ability to use intermittent leave. There was an individual
who was out intermittently, including Dr's appointments and sick time
for several weeks. The employee frequently called out with insufficient
time to obtain some type of replacement. On occasion she came to work
and left shortly after arrival, complaining that she could not work due
to her illness, leaving no one to do the job. She also came to work and
did not meet job expectations due to her incapacitation. This was a
secretarial position and she was the only one with the skills to
completely fulfill the job requirements. When she was out, work was not
done and items were not ordered. Staff were frustrated that this key
position was unmanned and it impacted patient care. The scenario with a
nurse is similar; however, the impact is far greater. Consider the
affect of several staff out on FMLA and the impact to satisfaction and
safety on many levels.
Reconsider intermittent leave and require a Dr's visit with each
absence, although physicians typically meet the requests of the
employee.
Tighten up the definition of what constitutes ``serious illness.''
Originally the act was developed for things like chemotherapy
treatments, radiation etc., now it is used for sick days. Example--A
mother stated that she could not come to work because of the pollen and
her child has asthma. Although it is well controlled, she said that he
did not feel well and that the pollen count was high. The threshold of
acceptance is on the employer rather than strict guidelines and
expectations.
Support Institutions in Managing the FMLA When Appropriate
The FMLA is an example of understanding that health issues occur
and that employees should not be penalized for these unforeseen events.
However, changes to the act can be an opportunity to improve the
balance that needs to be struck between the employer, as in the case of
hospitals, and their needs for quality patient care and the employees
who provide it.
The Chairman. Thank you.
Mr. Lancaster?
STATEMENT OF PATRICK LANCASTER, VICE PRESIDENT, CHIEF
ADMINISTRATIVE OFFICER AND SECRETARY, AMERICAN AXLE &
MANUFACTURING, DETROIT, MI
Mr. Lancaster. American Axle Manufacturing is a Tier 1
automotive supplier in the global automotive industry, which is
undergoing a structural change caused by global competition,
our customer demands for global pricing, and rising domestic
production costs. We have 9,000 U.S. employees. All of our
hourly associates are represented by either the UAW or the IAM.
And on a daily basis we produce 17,000 axles, highly engineered
products, and because of just-in-time deliveries our customers
are dependent on us to produce those on time, every time.
We find the FMLA, as presently existing under the
regulations, to be a cost driver. Under our collective
bargaining agreements, we have sick leave, personal leave, and
also 40 hours paid, no-fault, unscheduled attendance provisions
in there. We have found that, historically, concerns about
serious health matters were adequately addressed in the CBA.
What we have found is that when we layer on top of that the
effect of the FMLA, particularly as the regulations define some
of these terms, it allows for unscheduled absences that we
can't adjust for in terms of running our business, so it drives
cost, and allows people to avoid discipline under the CBA
attendance policy.
So we think this is a significant cost driver and is
contributing to the loss of jobs in manufacturing and in the
United States, as presently existing.
[The prepared statement of Mr. Lancaster follows:]
Prepared Statement of Pat Lancaster
CONTENTS
Overview
AAM's Absenteeism and FMLA Experience (1994-2005)
AAM's Collective Bargaining Agreement/FMLA Implications
FMLA as a Competitive Threat to U.S. Manufacturing
AAM FMLA Abuse Case Examples
OVERVIEW
The U.S. automotive industry is undergoing a structural change
caused by global competition, customer demands for global pricing and
rising domestic production costs. One of AAM's domestic cost drivers is
the significant increase in absenteeism caused by abuses of the Family
Medical Leave Act (``FMLA''). In AAM's view, this abuse results from
two primary areas of the FMLA: (1) the lack of effective guidelines
regarding the definition of a ``serious health condition,'' and, (2)
the intermittent leave provisions. The interplay of these two very
broad provisions of the FMLA allow employees to routinely obtain
certification from a medical provider relating to an underlying chronic
condition of the employee, parent or child for intermittent (and,
therefore, usually entirely unscheduled) leave. The threshold
definition of a ``serious health condition'' as interpreted through the
DOL's opinions is so low that AAM estimates that at any time, at least
\1/3\ of all AAM employees could successfully obtain medical
certification from a provider for an intermittent FMLA leave. In such
circumstances, healthcare providers extend very broad certifications
that allow employees to take leave for any reason and at any time and
without prior notice. Thus, in the past 2 years, AAM has experienced
exponential growth in the use of FMLA to cover tardy and ``leave
early'' circumstances, in addition to a sharp increase in FMLA absences
on Mondays and Fridays. These absences cannot be challenged or
addressed through application of standard work rules or the ``no-
fault'' absenteeism procedures that have been established at our
domestic locations. As a result, abuse of FMLA leave has become the
single largest ``loop-hole'' for abuse of unscheduled absenteeism.
Exacerbating this situation is the difficulty of the FMLA mechanisms to
challenge the opinion of a medical provider.
AAM'S ABSENTEEISM AND FMLA EXPERIENCE
AAM currently operates seven (7) manufacturing facilities
in the United States, all of which are represented by the UAW. Of those
seven operations, five (5) of these facilities were part of the
original asset transfer from GM. Two are located in Detroit, MI and two
in the greater Buffalo, NY area. Historically, these four inner city
facilities have been plagued by high absenteeism. Below are the
composite absenteeism rates for the five facilities from 1998 through
2004.
Between 1998 and 2004, AAM aggressively pursued
contractual modifications to negotiated attendance programs. These
programs were modified with the intention of significantly reducing
absenteeism related to ``casual'' time off--or unexcused, illness and
excused days of absence.
These attendance program changes have resulted in a 40
percent drop in the rate of such casual absences, as shown by the red
bars above.
During this same period of time, sick leave and FMLA use
has exploded at AAM, as shown by the growth in the blue bars.
Absenteeism in several of our plant locations has been
directly linked to major sporting events. In 2005, the day after the
Superbowl, absenteeism spiked to over 30 percent total absenteeism at
Detroit Gear & Axle, up nearly 13 percent from ``normal'' absences.
FMLA use now accounts for 1 percent of all absenteeism at
AAM. One percent of absenteeism is estimated to cost AAM $8.1 Million
annually.
In 2003, approximately 1 out of every 5 hourly employees
at AAM applied for FMLA.
84 percent of FMLA applications are approved, 16 percent
of applications are denied.
Intermittent FMLA use has climbed at a rate of increase
five times as fast as FMLA use for continuous leaves.
Several of AAM's local unions have conducted on-site
classes at the union halls to ``train'' employees on the use of FMLA.
Use of intermittent FMLA for tardiness and ``leave
earlies'' from work has similarly exploded.
At AAM's largest domestic manufacturing operation, Detroit
Gear & Axle, on average in 2005, there are 110 occurrences of tardiness
or leaving early due to FMLA per month. This is equal to approximately
6 employees calling in unscheduled tardiness or leaving early every
work day of the month. These events are entirely outside the plant
rules for reporting late for work.
A recent example of the FMLA abuse was experienced just
this past Monday, June 20th. On Sunday night, beginning at 9:00 p.m.,
the Detroit Pistons played in an NBA finals game, which went into
overtime and ended at 1:15 a.m. on Monday morning. At Detroit Gear &
Axle, unscheduled FMLA activity for 3rd shift (which starts at 10:00
p.m. on Sunday) and 1st shift (which starts at 6:30 a.m. on Monday)
were severely impacted. Detroit Gear & Axle averages 22 call-ins on
average for FMLA each Monday; for 3rd and 1st shift alone, on this
date, there were 30 such call-ins.
As shown above, AAM's experience with FMLA intermittent
absences points to clear abuse. Intermittent FMLA absences tend to
occur with much greater frequency on Mondays of each week, as shown by
this data for 2005.
AAM'S COLLECTIVE BARGAINING AGREEMENT/FMLA IMPLICATIONS
AAM's collective bargaining agreements with the UAW provide
numerous mechanisms for employees to apply for leave or time off for
their own serious health condition or to provide care for family
members. Below is a summary of those existing provisions:
Sick Leave of Absence--A sick leave of absence is automatically
granted by AAM when the employee is known to be ill and it is supported
by satisfactory evidence. When an employee submits documentation for
self-care under FMLA the above mentioned contractual provisions is
negated; by law, AAM must make such leave available and is left with
little recourse to address whether or not such illness is supported by
satisfactory evidence.
Informal Leave of Absence--An informal leave of absence may be
granted for up to 30 days for personal reasons. In such case, AAM has
the ability to evaluate the basis for the requested leave, and weigh
this request against the needs of the business. With FMLA, no such
ability exists for the employer to determine if the need for leave
outweighs the needs of the company.
Formal Personal Leave of Absence--A formal leave of absence may be
granted for 30 days to up to 180 days. Again, AAM has the ability to
evaluate the basis for the requested leave, and weigh this request
against the needs of the business.
Vacation Time Off--AAM provides for a minimum of 40 hours and up to
200 hours of vacation time off to employees, based on seniority. Forty
(40) hours of this entitlement can be used without pre-approval for
absences related to illness or personal business. The remaining
vacation balance can be used by employees on a pre-scheduled basis to
address care issues for family members.
Location-specific Attendance Policies--With its unions, AAM has
negotiated successively tighter attendance policies. However, even the
most strict attendance policy in place within AAM's domestic operations
provides for a minimum of six (6) occurrences of either single day or
consecutive day absences before a termination can take place (This
description is stated in terms of a minimum because AAM's attendance
programs vary in terms of number of steps in corrective action
procedure and the ``removal'' period, or the period of time without
absence that is required before the employee's record clears). These
days are exclusive of any approved sick leave of absence, formal or
informal leave of absence or vacation time off as described above.
AAM's attendance policies are designed as ``no-fault'' procedures, yet
the FMLA not only allows an employee to call-in an absence/late, but it
gives them the ability to be off work for individual or consecutive
days without being subject to the attendance policy. Each AAM location
has identified FMLA as a major roadblock to their attendance programs'
effectiveness.
FMLA AS A COMPETITIVE THREAT TO U.S. MANUFACTURING
AAM has described our experience in managing the problem of
employee absenteeism and has further described the provisions of our
collective bargaining agreement that provide for numerous mechanisms
for paid and unpaid time off to address employee or a family member
medical issues. It is AAM's view that the FMLA, as written and
interpreted, creates significant potential for attendance abuse,
thereby increasing the already substantial competitiveness gap that
domestic manufacturers currently face.
AAM FMLA ABUSE CASE EXAMPLES
Detroit Forge--Saturday/Sunday FMLA Absences
Employee has been certified for intermittent FMLA for care
of her asthmatic child.
According to AAM's contractual obligation to offer
overtime work according to an ``equalization list'' Employee was
offered and accepted overtime work for Saturday, June 11th. Based on
her acceptance of overtime, other individuals on the overtime list were
not asked to work.
Employee called in FMLA 14 minutes prior to the start of
shift, alleging absence due to care of daughter for asthma.
The Employee's absence caused a shortage of manpower due
to no absentee coverage scheduled on premium pay workdays.
Other AAM employees voiced complaints to the union feeling
disadvantaged by this employee having exercising her rights under the
FMLA.
Local union representatives have requested a waiver of the
overtime equalization provisions for employees who have intermittent
FMLA and to limit overtime availability for those employees with
approved FMLA much like we do with employees that have medical
restrictions.
Buffalo Gear & Axle--Serious Health Condition Definition Example
Employee was attendance problem before he filed for FMLA.
Employee was certified for FMLA intermittent leave for
sleep apnea.
Employee claims to have had this condition for years.
Prior to his FMLA certification, the employee's absences
from work were frequent, yet controlled through the absenteeism policy.
Today, this employee is a habitual absentee problem using
FMLA as the reason.
No penalty in the attendance program.
Buffalo Gear & Axle--Friday/Monday Absences
Employee certified for intermittent FMLA for ``prenatal
care''--no unusual circumstances with the pregnancy.
Employee has shown a pattern of Friday/Monday absences.
AAM's ability to challenge the need for this FMLA leave is
limited to a 2nd Medical Opinion.
Buffalo Gear & Axle--Extended Weekends
Employee was certified for intermittent FMLA for migraine
headaches.
AAM advised by other hourly employees that employee was
taking trips to Florida for long weekends to visit a boyfriend.
Employee called in for intermittent FMLA leave.
Employee's vehicle was observed in airport parking lot.
Employee admitted to traveling to Florida, yet claimed
migraine headaches during trip.
Detroit Gear & Axle--Other Employment
Two brothers working at AAM on opposite shifts, one on
1st, one on 2nd.
Both certified for intermittent FMLA care of mother with
breast cancer.
One brother, assigned to first shift, called in
intermittent FMLA so frequently that he exhausted his 12 weeks of
leave.
This employee was observed working at the Best Western
Hotel as a 2nd shift manager.
AAM could not take action against employee working a 2nd
job at night and calling FMLA on 1st shift, because FMLA does not
prohibit ``moonlighting'' and employee claimed he was providing care
for mother on 1st shift.
Yet, brother, also on intermittent FMLA was assigned to
AAM on 2nd shift, and should have been available to care for mother
during days.
Detroit Gear & Axle--Out of Town
Employee certified for intermittent FMLA for pulmonary
sarcoidosis.
Employee called in for FMLA from a Las Vegas, Nevada phone
number.
Employee was denied FMLA for those days, however, 2nd
medical opinion confirmed her need for intermittent leave.
Detroit Gear & Axle--Lates
Employee certified for intermittent FMLA for care of
mother due to Alzheimer's.
Employee late for work at least 4 times per week.
Employee's work schedule modified to minimize impact on
operations and accommodate her mother's illness.
Even with an adjustment in her schedule, she cannot arrive
to work on time.
Three Rivers--Dr. Abuses
One employee was overheard speaking to another employee.
``Just go to Dr__ and tell him that you are experiencing severe
headaches. He may send you for some tests but they can't prove you are
having them or not so he will sign the FMLA forms for you.''
The reason the employee wanted time off was because of
having problems finding a babysitter along with wanting a few days off
to go to the flea market each month.
The other employee was on intermittent leave for migraines
and was coaching a co-worker how to get time off on FMLA.
Three Rivers--Serious Health Condition Disappeared After Exhaustion of
12 Weeks of FMLA
Employee was certified for intermittent FMLA for migraine
headaches.
All paid vacation time was exhausted by AAM prior to
granting unpaid FMLA.
Employee took 2 to 3 days per week FMLA for the headaches,
12 weeks total of FMLA time was exhausted within 7 months.
Now that the employee would be subject to the ``no-fault''
attendance policy, employee is attending work regularly.
The Chairman. Thank you.
Ms. Alexander?
STATEMENT OF MARIE ALEXANDER, CEO, QUOVA, INC., MOUNTAIN VIEW,
CA
Ms. Alexander. I am the CEO of a small company in
California. We have about 57 employees. As everyone else has
mentioned in a small company, it is quite tight. I have a very
skilled work force. But what I have found is that being able to
allocate resources and plan ahead, it has been no problem for
us to be able to implement Family and Medical Leave and to be
able to provide my employees the leave that they need.
We recently had someone that left out on maternity leave. I
was able to allow her to leave. I was able to hire a skilled
resource and, because it was unpaid leave, her benefits were
covered, but with the person that I was hiring in, I didn't
have to cover his benefits. And so it was a net to my business.
As we managed through this process, at the end I was able to
have not only one trained employee, but another person trained
up during that process so that, as my business grew later, I
was able to hire the temporary employee into a full-time
position in the company. We do have the issue of having people
that may call in and need a short period of time off. I do have
resource constraints as well. And while it is not life-
threatening, we do have 7-by-24 support that we have to provide
to our customer base, so it is critical that I have the entire
staff there. But at this point, it hasn't caused problems to my
business. In fact, by managing it this way, it has actually
contributed positively to my business.
The Chairman. Thank you.
Ms. Boyd?
STATEMENT OF SANDRA BOYD, VICE PRESIDENT, HUMAN RESOURCES
POLICY, NATIONAL ASSOCIATION OF MANUFACTURERS (NAM)
Ms. Boyd. First, I think it is important to say that it is
not at all inconsistent to support the FMLA and to feel that
the FMLA has been positive in many ways for employees and
employers, but to also appreciate that the regulations are
flawed in important ways that maybe were not intended at the
time but, through both the regulations, wage-hour opinion
letters, and now case law, we are in a situation where these
regulations do need to be looked at again.
We survey our members on a regular basis, and what we find
is very consistent with what Mr. Lancaster discussed, and that
is that manufacturers have three problems with the regulations.
And again, it is important to stress that these are regulatory
problems that were by and large created by the Department of
Labor and are fixable by the Department of Labor without doing
away with any important employee protections.
The first problem frequently mentioned in every survey is
the definition of ``serious health condition.'' I believe when
Congress passed the statute there was a lot of discussion not
just about the family side, which our members don't find very
problematic, but there was discussion about health conditions
as well. But for the most part, that discussion really did
center around ``serious''--meaning serious--and it is a little
distressing now, 12 years later, to see case law on hangnails.
I don't think that is what you intended, and it certainly makes
it more problematic to deal with the statute.
The second problem is the intermittent leave issue that has
been raised before. Intermittent leave has to be given to
employees in the smallest increment that the employer keeps
time in. For many manufacturers, that is 6 minutes. Keeping
time in 6-minute increments is an administrative burden beyond
belief and it causes HR departments to have to have full-time
staff just to track time. It is particularly troubling, given
the very tight margins in manufacturing these days, when you
have unscheduled leave. Intermittent leave is not as
problematic when people plan ahead and when there is an ability
to plan ahead. Obviously, not everything can be planned ahead,
but the unscheduled leave is very troubling.
The third problem raised again and again are the notice
provisions, which the U.S. Supreme Court, of course, in the
Ragsdale case, has already overturned and told the Department
of Labor to go back and revise that portion of the regulations
at least.
But there are more flaws in the notice provisions beyond
those that were identified in the Ragsdale case. Those have to
do, really, with the hindrances on employers' ability to figure
out what is going on with an absence. Is it consistent that
somebody who has chronic headaches be gone disproportionately
on a Monday or a Friday, or after a major sporting event? Is
that the sort of expectation, you know, based on the illness
that you see? You don't really have a lot of ability, and of
course further complicated by HIPAA and some other things, to
go back and to have these discussions with doctors and
healthcare professionals to figure out what it is the employee
might want and to make those kinds of accommodations.
Again, as someone else mentioned, there is probably a
small, small percentage of the population that you have these
particular issues with, but with very, very thin margins it
becomes a real cost driver and is really problematic. I
strongly believe that these are issues that can be fixed in
very targeted ways through the regulatory process without
harming the underlying protections of the act, which really
have been important, I think, to American employers and
employees.
Prepared Statement of Sandra Boyd
Beginning in the fall of 2002, the NAM has regularly asked its
members for feedback regarding the Family and Medical Leave Act (FMLA).
The initial request in the fall of 2002 was made in anticipation of a
January 2003 stakeholders meeting with the Department of Labor (DOL) to
discuss FMLA regulations in light of the Supreme Court's decision in
Ragsdale v. Wolverine World Wide, Inc., where the Court invalidated the
penalty provision found in Section 825.700(a) of the regulations.
Administration of the FMLA is regularly identified as the number
one human resource challenge by NAM members. NAM members frequently
mention their overall support for the spirit and goals of the FMLA,
many noting that they have had robust family and medical leave
programs--often with more generous benefits--long before the FMLA was
passed. While 12 years later the statute itself raises few questions,
the implementing regulations are a different story. Many NAM members
report being frustrated by the complexity of FMLA administration and
the ease with which it can be abused. Members note that the FMLA was
designed to allow for family leave after the birth or adoption of a
child or to care for seriously ill family members--and that these
family leave absences are almost never the problem. The main source of
problems identified by employers is with an employee's own medical
absences.
The inability of employers to manage FMLA absences--because of the
way in which the regulations and DOL wage hour opinion letters have
developed over the past decade--as they would other absences is a huge
and costly frustration. In short, there are four major areas that are
repeatedly mentioned by most, if not all, NAM members as problematic:
definition of serious health conditions; intermittent leave; notice
provisions and perfect attendance awards.
A summary of each of these issue areas and their impact is
discussed below:
I. Serious Health Condition
The definition of ``serious health condition'' is regularly
identified as the most problematic issue, with most NAM members
agreeing that the regulations combined with DOL opinion letters on the
subject have made almost any illness a qualifying illness. ``Serious''
no longer means ``serious'' as contemplated by Congress when the FMLA
was passed. For example, one visit to a healthcare provider for a
prescription and ``incapacity'' of more than 3 days qualifies as a
serious health condition. While the statute may not have contemplated
using the FMLA for common conditions like the flu and hangnails, the
regulations have.
Manufacturers believe--as Congress did when it passed the statute--
that the definition of ``serious health condition'' should not cover
short-term illnesses where treatment and recovery are brief.
The overly broad definition of ``serious health condition'' is
particularly problematic for individuals who have ``chronic
conditions.'' The regulations define serious health conditions as
including chronic conditions (and the period of incapacity need not be
3 days). Conditions such as allergies, migraines or other headaches,
back problems, depression, asthma and diabetes are frequently
identified as chronic conditions. Once employees have been diagnosed
with these conditions, especially when combined with taking
intermittent leave in short increments, the ability to manage absences
is especially difficult.
II. Intermittent Leave
The high incidence of unscheduled intermittent leave (combined with
the broad definition of serious health condition) is problematic for
manufacturers. The unpredictable nature of intermittent leave creates
scheduling and staffing issues and leads to increased cost and lost
productivity.
Intermittent leave must be given in the smallest increments that
the payroll system keep time in, which, for many manufacturers, means 6
to 10 minute increments. This creates a tremendous tracking and
administrative burden for employers. Companies have noted that they
have a population of employees that take their entire 12 weeks of FMLA
leave--every year--6 minutes at a time.
Intermittent leave for unscheduled, chronic illnesses for employees
has not only strained production schedules but it has soured employee
morale. Non-scheduled FMLA intermittent leave frequently means that
employers must over staff certain shifts (such as Mondays and Fridays
where FMLA absences tend to be greatest), ask employees to fill in for
other workers and require unscheduled overtime. It also compromises
product quality and employee safety.
Some intermittent leave is anticipated and scheduled (such as
physical therapy). This leave, even in smaller increments of time, are
more easily dealt with because they are known ahead of time and the
employer can make the appropriate scheduling changes.
III. Notice Requirements
Many manufacturers have noted that the burden of leave notification
and designation is entirely one-sided with employees having little
responsibility to inform the company of the reason for their absence,
the expected length of the absence, and in the case of a chronic
condition, what an employer can reasonably expect because of the
condition.
The regulations further make it impossible for employers to have
discussions and follow-ups with medical professionals about absences
and the required forms do not give employers adequate information.
IV. Perfect Attendance Awards
The requirement that FMLA leave not count against an employee's
absence record for perfect attendance rewards is particularly irksome
to manufacturers and has created morale problems for many. While
employees who have been on leave for the birth or adoption of a child
or for a serious medical condition should not be penalized for that
leave, not allowing time actually at the job to count for ``perfect
attendance'' often leads to perverse results. Some employers have
discontinued or scaled back these awards as a result of the FMLA
regulation and the impact on employee morale.
Impact of FMLA Regulatory Issues
Any one of the regulatory issues raised (definition of serious
health condition, intermittent leave and notice) might be manageable
for employers, but taken together with the strong job protection
provisions of the FMLA, they have created a structure that does not
allow employers to manage FMLA absences in the same way that other
absences can be managed.
Because of the strong job protection provisions (which are entirely
appropriate for those legitimately taking FMLA), employees with
absence-related performance issues can hide behind the shield of the
FMLA's protection to avoid discipline and termination. The notion that
FMLA abuse problems can be managed is patently false under this
regulatory scheme where the employers' hands are completely tied.
Under the current FMLA regime, companies cannot initiate any
dialogue with employees or doctors. The only way employers can work
with an employee to accommodate a medical issue (such as a shift change
or change in work assignments) is if the employee initiates the
conversation with management.
A number of manufacturers have reported the frustration (of both
management and fellow employees) of having the same people who have
habitual attendance issues being the biggest users of the FMLA--
everyone in the team, facility and company know who they are. Employees
in jeopardy of severe discipline for attendance infractions seek refuge
in the FMLA. While the percentage of employees who abuse the FMLA may
be small, their impact on cost, productivity and employee morale is
enormous. Such gamesmanship undermines legitimate use of the FMLA by
those for whom the benefits and protections were truly intended.
Conclusion
The FMLA has provided important protections to employees, but the
regulatory scheme has made it impossible for employers to manage
absences effectively. A recent NAM study found that manufacturers face
a 22 percent cost burden--including regulatory costs--as compared to
our major foreign competitors (www.nam.org/costs). In an environment
where manufacturers face fierce global competition, it is imperative
that regulations implementing laws work as Congress intended and that
unintended consequences be addressed expeditiously.
Modest changes to the FMLA regulation that would ensure that
employers have the tools they need to effectively manage their
workplaces are badly needed. Such changes will also strengthen the FMLA
by ensuring that those entitled receive the benefits and protections of
the FMLA. The NAM strongly encourages the Department of Labor to
proceed with a notice and comment rulemaking on FMLA regulations and
for Congress to support those efforts.
The Chairman. Mr. Payne?
STATEMENT OF JEFFERY PAYNE, DIRECTOR, HUMAN RESOURCES, PALMETTO
HEALTH, COLUMBIA, SC, ON BEHALF OF AMERICAN SOCIETY FOR
HEALTHCARE HUMAN RESOURCE ADMINISTRATION
Mr. Payne. Thank you, Senator, for having this hearing for
the discussion of this issue.
I want to echo what Laurie had said from a healthcare
perspective. I represent not just my hospital but the American
Society for Healthcare Human Resources Association--a mouthful,
but it is a personal membership group of the American Hospital
Association.
I want to give an example of the impact of what FMLA is
doing to every managed--critical care areas. We have two large
hospitals in our system. Both hospitals have large OR areas,
operating rooms. They do about 60 to 80 cases a day. The OR
depends on a staff of one circulating nurse and two surg techs.
If any one of those three people is missing, the surgery cannot
go forward. And these aren't things that you can delay. These
are surgeries that have been scheduled, some are life-
threatening surgeries.
So first thing in the morning, if one of those three calls
out, the nurse manager has to immediately pull someone from
case no. 2 to fill in for case no. 1, and then case no. 2 has a
hole. Then they have to go for case no. 5 to fill in for case
no. 2, and so on and so on. That is expected; absences happen.
But truly, within one of our hospitals, with a staff of about
110 people, at one time 25 people had FMLA situations, mostly
on an intermittent leave basis. So on a given day, the risk was
that 25 people could call out and there was really little they
could do about it except to scramble and cover it.
We would like to say that, as echoed, the continuous leave
portion is not a problem. It is plannable, it is--you can
anticipate it and you can cover for it. It is the intermittent
portion, plus the ``serious health condition'' definitions,
that really cause us concern.
[The prepared statement of Mr. Payne follows:]
Prepared Statement of Jeffery Payne
The American Society for Healthcare Human Resources Administration
. . . ASHHRA . . . appreciates the opportunity to submit our statement
for the record on the Family Medical Leave Act and its regulations. I
am Jeffrey Payne, director of Human Resources at Palmetto Health in
Columbia, South Carolina, and the chairman of ASHHRA's Legislative
Committee.
ASHHRA represents 2,900 human resource healthcare professionals who
serve in 5,000 hospitals, healthcare systems and other health
organizations.
Hospitals are, by their very nature, nurturing environments, filled
with talented and dedicated people who are committed to curing and
caring. As human resources professionals, we embrace the idea that to
deliver high-quality, compassionate patient care, you need high-
quality, compassionate staff. We further recognize that, to attract and
retain this kind of person to our hospitals, we need to be the kind of
workplace that embodies the very best employment and employee-relations
practices.
Our workforce is predominately female in a society that still
places primary child-rearing responsibility on the woman. We therefore
have an obligation to recognize and respond to the needs of our
workforce as they strive to balance their parental and domestic
responsibilities with their professional lives.
The Family Medical Leave Act is, at its core, a very positive and
affirming piece of legislation that supports working men and women as
they try to balance work and home. Even before the legislation was
enacted, it was the policy of most healthcare organizations to provide
ample leave time when employees had to deal with a variety of personal
and family medical issues. In many ways, the Family Medical Leave Act
simply codified a long-standing practice in hospitals.
My own organization, Palmetto Health, has 9,200 employees, working
in three member hospitals. We consistently strive to make sure our
policies, procedures, and benefits help our employees thrive. And we
have been successful: We are a 2005 winner of the South Carolina Family
Friendly Workplace Awards.
But this success does not come without challenges. There is a well-
documented national shortage of healthcare professionals in the United
States. The U.S. Bureau of Labor Statistics projects that 1.1 million
new and replacement nurses will be needed by 2012. We, like many
hospitals across the Nation, are chronically in need of good people.
For example, at any given time, we have more than 150 nurse vacancies,
which for us equates to a vacancy rate of about 10 percent. Our
experience is very typical, and we must do what we can to create an
environment that attracts the best--and policies that assist employees
in times of medical need are absolutely required.
That being said, we have to constantly weigh what we would like to
do versus what we are able to do. We have to take a hard look at our
staffing practices to ensure that we are able to meet patient demand.
At the same time, we must be effective stewards of limited healthcare
resources. After all, we are constantly ``on'' . . . our lights never
go out . . . our buildings never go quiet. We function 24 hours a day,
7 days a week, 365 days a year. And the nature of our work demands that
we provide a constant presence. The people we serve need us to be there
to take care of them during the most critical and vulnerable moments of
their lives.
While we agree with its general goal, the implementation of the
Family Medical Leave Act, as it is currently interpreted, is often
frustrating and difficult. Frankly, in many cases implementation of the
act is making matters worse for our employees and our patients as well.
We strongly support the primary provision--allowing employees to take
time off for consecutive weeks to deal with medical emergencies such as
pregnancy and surgery. That is straightforward, and easy to deal with
administratively. However, the intermittent leave provisions, and the
current definition of serious health conditions are other matters
altogether.
Quite simply, in a 24/7 work environment, the unpredictable and
burdensome nature of the regulations can wreak havoc on employee staff
scheduling. The result often hurts our ability to schedule patients and
treatments. Also, the administrative burden of managing intermittent
leave is significant. As an example: In my hospital, we have a staff of
four full-time benefit counselors whose jobs are to advise our
employees on a full range of benefit issues, typically having to do
with health insurance. In reality, they spend the bulk of their time
dealing with Family Medical Leave Act administration . . .
communicating with the employees, supervisors, physicians and others
about the intricacies of the act.
We urge Congress to work with the Department of Labor to refine the
current regulations so that they are closer to the original intent of
the Family and Medical Leave Act--to codify what many hospitals and
healthcare providers have long provided for their employees in regards
to balancing work and home life and medical leave. We believe that such
refinements would better reflect the real world environment of today's
hospital: a place that, despite often-shrinking resources, remains
available every day of every week to meet ever-increasing demands for
healthcare services. We don't need more red tape and regulation.
Mr. Chairman, we thank you for the opportunity to be here and we
look forward to working with you in improving this valuable law.
The Chairman. Thank you.
Dr. Heymann?
STATEMENT OF JODY HEYMANN, M.D., PH.D., DIRECTOR OF POLICY,
HARVARD CENTER FOR SOCIETY AND HEALTH, CAMBRIDGE, MA
Dr. Heymann. Thank you. I want to speak both as a physician
trained as a pediatrician and as a policy analyst who for the
past 12 years has led a research team at Harvard to examine the
health, development, and well-being of families. We have done
systematic studies of over 10,000 Americans from every State,
every income level. We have also interviewed employers,
childcare providers, healthcare workers.
First, the FMLA as a whole, I think the single thing I
could say is it is one of the most important pieces of
legislation in the past 25 years when it comes to health. There
seems to be broad agreement of that. And because of the time, I
am just going to briefly say critical to health of children,
infants, the ability to take leave long enough that mothers are
home for breast feeding cuts mortality substantially. Caring
for sick children decreases the duration of their
hospitalization, improves their health much more rapidly on a
wide range of indicators.
It is also important to our labor outcomes. Before the
leave, adults with health problems were 53 percent more likely
to lose jobs. Low-wage workers whose children had health
problems were 36 percent more likely. This is a central issue
to their ability to stay at work.
So we have a lot of agreement that the FMLA is important.
What makes it work? And I think here is where I would have
something slightly different to say. I think that the current
legislation and regulations are smart. They work for the health
of Americans and for work places. Two points in particular: The
definition of ``serious conditions,'' we need to understand
that there is less and less hospitalization, that as much as
possible people are now treated on an outpatient basis, that
hospitalizations themselves are decreasing in length
dramatically. The law covers this now well. It is important
that we continue that coverage.
Chronic conditions are on the rise. That is the majority of
what is affecting Americans now. Again, it covers it well. It
is critical that that stay.
In terms of intermittent leave, many doctors visits,
medical tests can be done in short visits. Allowing the
smallest increment possible, the companies already keep track
of. Not asking them to keep track of something smaller than
they do but what they already keep track of is essential. Why?
Because it allows the worker to miss as little work as
possible, allows them to lose the minimum amount of pay, the
employer to lose the minimum amount of time while meeting these
health needs. Many appointments can be scheduled at the end of
the day, the beginning of the day. That short amount of time is
crucial.
I want to say two things quickly in response to a number of
points that have been raised. One, the cost to firms. I think
it is important to note that there have been national surveys
by the Government of companies across the whole country,
representative surveys. What did they find? Ninety percent of
covered establishments found that the FMLA had either no effect
or a positive effect on profitability and no effect or a
positive effect on growth.
The last thing I want to say is about the healthcare
setting, because that has been raised now by a couple of
people. I think the essential point is we need healthy doctors
and healthy nurses caring for patients. The last thing we need,
I can say as somebody who has worked in hospitals, worked in
clinical care, is somebody who is sick delivering that care. We
see this in other industries as well. This has come up with
food workers. The last thing we need is sick food workers going
and spreading disease, and it has been shown.
In the past, it was used to justify the extremely long
hours of residence--you know, 80, 100 hours-plus--that we
needed somebody there to deliver care. But in fact, what was
found was they were delivering bad care because they were so
sleep-deprived. There is a complete parallel here. People who
are sick, people whose parents and children are home seriously
ill, are not able to give good care. They are not well enough,
they are not focused enough on their work. We need to have the
flexibility in the system so that they can be covered. That is
essential, just as we have to cover epidemics, other
emergencies that raise the amount. But we need somebody who is
good on staff, and that allowance for leave is the way to keep
them at work when they are able.
Prepared Statement of Jody Heymann, M.D., Ph.D.
Good morning Chairman Enzi, Senator Kennedy, and members of the
committee. My name is Jody Heymann. I am on the faculty of the Harvard
School of Public Health and Harvard Medical School. Thank you for
inviting me to testify today. For the past 12 years, I have led a
research team at Harvard University that examines how conditions in the
United States are affecting the health, development, and well-being of
children and families. Trained as a pediatrician and a policy analyst,
I began this work when it became clear from individual families that
the conditions parents faced in the workplace and in their communities
were having a dramatic effect on the health of their children. In the
past dozen years, I have conducted systematic studies involving over
10,000 Americans--from every State and across all income and
demographic groups--to examine how widespread these problems are and
what are the viable solutions.
You have asked each of us at this Roundtable to speak about our
experience with the FMLA, ways family and medical leave might be
improved in the United States, and what could be done to improve the
lives of working families in America. I will address these in turn
beginning with the FMLA.
As a physician and medical researcher, I want to first state that
the FMLA is one of the most important pieces of legislation passed in
the United States in the past 25 years when it comes to family health.
Its current weaknesses consist primarily of the fact that it does not
cover an estimated 40 percent of Americans and the fact that the leave
is currently unpaid and thus practically unaffordable to too many of
the 60 percent who are theoretically covered.
CURRENT STRENGTHS OF THE FMLA
The tremendous importance of family and medical leave grow out of
its impact both on health and on the economic well-being of those who
receive it. The health benefits are many. Just to cite a few of these:
Women who are able to take maternity leave are more likely to be able
to breastfeed for an extended period of time, and breastfeeding cuts
infant mortality to a third of what it would otherwise be. The benefits
persist throughout childhood and adolescence. Many studies conducted
over the course of decades have demonstrated the importance of parents'
involvement when their children are sick. When their parents are
present, sick children have better vital signs and fewer symptoms; they
recover more rapidly from illnesses and injuries. Furthermore, the
presence of parents can shorten children's hospital stays by a third.
Similarly, elderly Americans who receive support from family
members when sick have far better outcomes. Adults who receive support
from family members when sick have substantially better health outcomes
from such major conditions as heart attacks and strokes.
When working adults receive leave to stay home when they are sick,
they are more likely to be able to care for themselves, to recover more
rapidly and less likely to spread diseases to those they work with.
Addressing the interface between work and health is also essential
to meeting the basic economic needs of Americans. In a national study
of low-income mothers, we found that those who had health problems were
53 percent more likely to suffer job loss and those who cared for
children with health problems were 36 percent more likely to suffer job
loss. The FMLA with its guarantee of job-protected leave to care for
one's own and family illness is an essential part of addressing this
problem.
There are a number of important features of the FMLA in its current
implementation, but it is worth mentioning at least two. First, the
definition of serious condition has importantly been defined as
including more than hospitalizations. Healthcare providers now provide
less and less care in hospitals in order to save money. Many serious
conditions are cared for at home. Moreover, it has been important that
the regulations ensure that the FMLA covers serious conditions of
relatively short duration. Today, when Americans are hospitalized it is
generally for a short period of time. The average hospital stay has
decreased from 8 days in 1970 to 5 days in 2001. The average hospital
stay for adults with heart disease, clearly a serious condition, is
only 4.6 days. Finally, it has been essential to the effectiveness of
the FMLA that the definition of serious condition includes chronic
conditions. The importance of chronic conditions is increasing as
Americans survive more diseases that were once fatal.
A second essential part of the effective implementation of the FMLA
has been the ability of Americans to take short-term intermittent leave
as well as longer-term continuous leave. Many medical tests,
treatments, and doctor's appointments require only short visits. By
allowing leave to be taken in small increments, the current regulations
enable employees to meet their own health needs and that of their
family while minimizing the time lost to the employer and minimizing
the pay loss to the employee.
HOW CAN THE FMLA BE IMPROVED?
Two things could be done to improve the FMLA. First, the actual and
effective coverage needs to be increased. The majority of working
Americans--across race, ethnicity, gender, education, and income--are
caring for children, elderly parents, or disabled family members. The
fact that approximately 40 percent of Americans are not covered by the
FMLA has been recognized and is an enormously serious problem. Less
well recognized is the fact that many Americans are not aware of the
leave they could receive under the FMLA. Two mothers I interviewed
illustrate this point. Both had children with asthma but neither
realized the Family and Medical Leave Act covered their children's
serious chronic condition. As a result, one child was unnecessarily
hospitalized when her mother went to work fearing she would otherwise
lose her job and her family would be left destitute. And the other
mother did lose her job when she sought to care for her child during a
hospitalization. They represent only two of the millions of Americans
who don't realize they are covered by the FMLA or what kinds of serious
conditions are covered. Both educating Americans who are already
covered by the FMLA about their rights under the law and extending the
act to as many as possible of the approximately 40 percent of Americans
who are not covered are critically important.
The second major recommendation I have for improving implementation
of the FMLA is to develop ways to ensure that the leave is paid.
Currently, the leading reason Americans do not take family medical
leave is that they are not able to afford it. A national study found 78
percent of Americans could not afford to take the family and medical
leave they needed. Not only is paid leave crucial to enabling a
majority of Americans to receive the health benefits derived from full
access to leave, but it is essential to the short- and long-term
economic security of American families. The entire family benefits from
parents' increased job security and consistent income. Implementing
paid parental leave policies also provides economic returns to
employers. Research has shown that having access to paid leave improves
workers' performance on the job. Workplaces with paid parental leave
policies experience lower job turnover rates, leading to lower
recruitment and training costs and a higher level of productivity.
Workers in more supportive workplaces are likely to have higher levels
of job satisfaction that, in turn, increase their commitment to their
company's success.
The overwhelming majority of countries from around the world
already have paid parental leave of some form. Our study, The Work,
Family, and Equity Index: Where Does the United States Stand Globally?,
examines U.S. labor and family policy in a global context. In the case
of maternity leave, we studied policies in 168 countries. One hundred
and sixty-four of these offer paid leave to new mothers. This includes
countries in every region of the world, countries with low unemployment
and countries with high productivity. Ninety countries offer 14 or more
weeks of paid leave to new mothers. Ninety-nine of the countries which
guarantee paid maternity or parental leave for women provide 100
percent wage replacement for at least some portion of this leave. The
United States is the only industrialized country not to guarantee paid
leave to new mothers. Of the 168 Nations studied, the only other
countries we found not to have paid leave for mothers were Papua New
Guinea, Swaziland, and Lesotho. While not universal, paid leave for new
fathers is also widespread. Forty-five countries offer some form of
paid leave to fathers (parental and/or paternity); 27 of these
countries offer at least 14 weeks of paid leave to men. Clearly the
United States can afford to join so many other Nations around the world
in providing these essential benefits.
THE HEALTHY FAMILIES ACT: AN ESSENTIAL ADDITION TO THE FMLA
While the FMLA provides important coverage for major illnesses,
there are crucial health needs which are not covered by the FMLA such
as when a 2 year old needs a parent to stay home with her because she
has a 104 degree fever or a restaurant worker should stay home because
he has infectious diarrhea. Because providing for 7 days a year of paid
sick leave when needed for personal and family illness would make an
enormous difference to the health of American families and their
ability to keep their jobs, I hope this committee will hold hearings on
the Healthy Families Act which was first introduced last year.
This bill fills a desperate need for Americans. Recent studies have
revealed that 59 million American workers do not have a single day of
paid sick leave and 86 million do not have any paid sick days that can
be used to care for a child. Short-term paid sick leave is critical to
the health of American working adults, their children, and elderly
parents for several reasons. First, as noted previously, one of the
largest factors affecting children's health is whether their parents
can be involved in their care. When parents are involved in children's
care, they have better health outcomes from both acute and chronic
diseases, and their healthcare costs are lower because they spend less
time in the hospital. Moreover, the single biggest determinant of
whether working parents can care for their sick children is having paid
leave. Parents with paid leave are five times as likely to be able to
stay home with a sick child. Second, having leave to care for family
members is equally important to those caring for elderly parents or
sick or disabled adult family members. Third, having paid leave to
address one's own health needs makes a difference to the health and
welfare of all Americans. Those adults who have paid leave are
significantly more likely to be able to keep their jobs and return to
work after major illnesses. This is particularly important given that
personal and family health problems are a leading cause of job loss.
Our research has shown that workers with paid leave are 2.6 times more
likely to return to work after a heart attack or angina. Moreover,
short-term paid sick leave matters to employers because of the
important ways in which short-term paid leave can limit the spread of
infectious diseases in the workplace, improve productivity and decrease
unnecessary absenteeism. To provide just one example, the spread of
infectious disease at the workplace is the reason that the United
States Centers for Disease Control and Prevention recommended Americans
who have influenza--a disease that leads to 95,000 hospitalizations and
over 35,000 deaths in an average year--stay home when they are sick.
The Healthy Families Act is superbly constructed to meet the
essential health needs of working Americans and their families, at the
same time as being readily achievable. As we report in our global
study, The Work, Family, and Equity Index: Where Does the United States
Stand Globally?, 139 countries around the world provide paid sick leave
to employees. One hundred and sixteen countries provide paid leave for
10 or more days. Can the United States afford to provide sick leave
benefits and still compete in the global economy? The answer is clearly
yes. Most of the world already has legislation guaranteeing sick leave.
Will it make a difference to the health of American children and adults
alike in need of care? An enormous one.
CONCLUSION
In conclusion, the United States currently lags dramatically behind
all high-income countries, as well as many middle-and low-income
countries when it comes to public policies designed to guarantee that
working families can care for their families' health and development.
One hundred and sixty-four countries around the world guarantee paid
leave to women after childbirth; the United States does not. Forty-five
countries ensure that fathers either receive paid paternity leave or
paid parental leave; the United States does not. One-hundred thirty-
nine countries provide paid leave for short or long-term illnesses; the
United States has no national policy regarding sick leave.
While it is essential to the well-being of middle-income families
that solutions--including ensuring adequate working conditions for
Americans and their families--be universal, developing policy responses
is even more critical to the health and well-being of those in greatest
need--low-income families and families with a child or adult with a
serious health condition.
Thank you again for holding these hearings and for taking the time
to move forward on these critically important issues facing working
American families.
The Chairman. Thank you.
Dr. Mulvey?
STATEMENT OF JANEMARIE MULVEY, PRESIDENT AND CHIEF ECONOMIST,
EMPLOYMENT POLICY FOUNDATION, WASHINGTON, DC
Ms. Mulvey. Thank you for inviting me here today on this
important issue. I would like to share with you some results of
a recent survey that the Employment Policy Foundation did on
the costs and characteristics of family leave. This is
important because many of the Government surveys that were done
were over 5 years ago. So this is more up-to-date data.
We found that, on average, 14.5 percent of employees took
FMLA leave during the past year. And I will echo what people
have said here. FMLA is a very valuable benefit, but one of the
concerns that have been raised with FMLA is in the area of
unscheduled intermittent leave. We found that intermittent
leave is common among FMLA leave-takers, with 20 percent taking
1 day or less and 30 percent taking 5 days or less. But more
importantly, nearly 50 percent of all leave-takers do not
provide notice the day before leave is taken. This lack of
notice makes it difficult for employers to adjust their other
employees' work schedules and accommodate the unscheduled
absence, leading to lost productivity, lost income, and other
things.
Our survey also found that chronic health conditions
accounted for 27 percent of leave-takers. This was much higher
for certain industries--58 percent for transportation and 42
percent for telecommunications. There was some concern that
workers are using FMLA for chronic health conditions that may
not be serious health conditions.
In terms of cost, we estimate that FMLA costs employers $21
billion a year. We believe this is truly a conservative
estimate and does not include the administrative burden of
tracking and complying with FMLA rules, nor does it include the
secondary economic effects of declining profitability on
economic activity. For some industries, this equals 2.5 to 3.5
percent of their compensation costs. At a time when employers
are already facing ever-rising healthcare costs and mounting
pension expenses, these costs can be quite burdensome.
Thank you.
The Chairman. Thank you.
Ms. Philips?
STATEMENT OF PATTI PHILIPS, WORKING MOTHER AND FMLA
BENEFICIARY, ATLANTA, GA
Ms. Philips. First of all, I would like to say thank you
for giving me the opportunity to be here today. My name is
Patti Philips. I am a working mother from Atlanta, Georgia. I
work in a manufacturing plant of a large soft drink company. I
have three daughters. And I was a beneficiary of FMLA. It was a
godsend for my family.
In 1999, when my youngest daughter was 12, she was
diagnosed with bone cancer. For 6 years, Stephanie fought. And
FMLA meant to me that I was able to be there for Stephanie. We
couldn't afford for me to not work; we needed both incomes. And
more important than that, I was the insurance carrier. The
costs were astronomical for what Stephanie went through, and
there is no way that she could have gotten the quality care she
got without our insurance. So I had no choice.
I used FMLA, and the most important part of FMLA to me was
the intermittent leave, with all the different doctors, all the
different treatments she had to go through. Some of them,
radiation, only would take 5 minutes at a time. So I was able
to use the intermittent leave and spend as much time as
possible with Stephanie, which was important to me.
Last August, when Stephanie's cancer came back for the
third time, we were told she was terminal. There was nothing
else they could do. Again, we started--I used the intermittent
leave again. We had palliative radiation. That was all we could
do for her was to make her as comfortable as possible. I was
able to just use small increments of time to be with her, and
when she didn't need me, I was able to go to work. When I was
at work, I was able to focus on my work and be a good, quality
employee. When I was at home, I was able to focus on her.
After Christmas, we realized it was time for me to stay
home. Stephanie didn't have much longer. Because I had been
able to use the intermittent leave, I had enough time left that
I was there with her the last 2 months of her life. She passed
away on February 8th. I was able to be with her 24/7. We
created wonderful memories, something that I will always have
because my daughter is no longer with me. And I want to thank
you for FMLA.
Thank you.
The Chairman. Thank you.
[The prepared statement of Ms. Philips follows:]
Prepared Statement of Patti Phillips
Good morning, Chairman Enzi, Senator Kennedy, and members of the
committee. My name is Patti Phillips. I am here to share my experience
with the FMLA as a mother, committed employee, and as a family
breadwinner. I am also here to share this story for my daughter,
Stephanie.
Six years ago, on New Years Eve, Stephanie felt a pain in her leg
that wouldn't go away. Testing revealed it was a type of cancer called
Ewing's Sarcoma. She was 12 years old, and she had cancer. That first
year, she had chemotherapy, radiation, and surgery, all in 1 year. She
was so brave, but it was brutal--brutal for her and agonizing for me,
my husband, and our other two daughters, Shannon and Paige. But we made
it through, and we were so thrilled because we thought we'd beat the
cancer.
For 2 years, Stephanie was fine. And then a spot reappeared in the
same place in her pelvis. In August of 2003, she had major surgery. The
doctors took out the left side of her pelvis as well as other bones,
and put in metal replacements. Again she seemed to be doing fine. Then,
in August of last year, she felt a pain in her leg. Tests showed the
cancer was back. This time, it had spread to her right leg and her
right lung.
I have worked for a soft drink company as an inventory control
specialist for 13 years and was eligible for FMLA. The first time, when
Stephanie was first diagnosed and receiving treatment, I didn't take
FMLA leave. FMLA is unpaid and our family needed my paycheck. I didn't
know what was ahead.
Through that year of chemo, radiation, surgery, and everything, my
husband and I struggled to care for her. I managed to be with her
outside of work hours. I still put in a full week at work, but my
supervisor arranged for me to start my day later, so I could be with
her in the morning, and I would work later at night.
But, Stephanie was alone a lot. I used to cry all the way to work.
I hated leaving her. The second time, when she relapsed, I promised
her, ``I will never leave you alone again.''
I immediately signed up for FMLA leave and I used it. If I could
have spent every second with her, I would have. But I couldn't because
my husband lost his job and wasn't able to find another. We depended on
my income and health insurance. Having FMLA leave meant that, when
Stephanie needed me, I could be there for her. Because FMLA allowed me
to take leave in small increments, when she didn't need me, I was able
to be at work and bring in steady income.
On February 8th of this year, at 4:30 in the morning, after a
restless night, Steph told her Dad and me that she was going to go try
to get a little more sleep. She tucked her blanket under her chin and
lay back down. For some reason, both her father and I woke up,
together, exactly an hour later. We took one look at Steph and knew she
was gone.
I miss Steph every day. But I take some comfort in the fact that I
was there with her as she struggled with the pain and the treatments. I
was part of her medical treatments and her care. I was with her at the
end. We were with her. She wasn't alone.
The FMLA was a godsend.
Keeping my job meant that I was able to retain my health insurance.
The FMLA protected my job and my family's health insurance. I don't
know how Stephanie would have gotten the care she needed without health
insurance.
Still, even with the insurance, our bills were astronomical.
Without it, we would have lost the house, no question. We would have
lost everything. FMLA was the only thing between us and bankruptcy. I
saw people who ended up bankrupt. When your child has cancer, you start
a kind of terrible journey. And on the way, you meet a lot of other
families, traveling in this same kind of twilight world.
Many of these families had it harder than us because they didn't
have the benefits of FMLA leave. They were confronting the tragedy of
serious or terminal illness, and on top of that, they had lost their
jobs and health insurance. They didn't know how they were going to pay
their bills. They just had no money. In that one way, we were lucky.
When I heard that the FMLA might be scaled back, I just couldn't
believe it. That law was the only thing between my family and the
street! I am particularly disturbed about the proposal that would force
people to take leaves of a half-day at a time. I saved every bit of
FMLA leave I could. If I had to be gone for only 2 hours--and often
that's all I needed--I could take 2 hours and head back to work right
after. If I'd had to take half-days every time--time when Stephanie
didn't need me, time I wasn't being paid for--that would have been
devastating. I would have had to use up my FMLA leave too fast. I would
not have had any time left at the end of her life.
There are already a lot of people out there who aren't covered by
the FMLA. I've seen what happens to these families, and I don't think
we should be talking about making it so that even more people aren't
protected by the law.
I participated in this Roundtable for Stephanie. I also want to
help other families.
Thank you for the FMLA. Thank you for allowing me to spend time
with my daughter and not worry about losing my job. It meant the world
to me and Stephanie.
I know it will mean just as much to someone else, too. Please don't
hurt other families who need the FMLA's vital protections. I am hopeful
that other families will have the same options that I had. Thank you.
Dr. Barbanel?
STATEMENT OF CHERYL BARBANEL, M.D., MBA, MPH, FACOEM;
PRESIDENT, AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL
MEDICINE; CHIEF OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE,
BOSTON MEDICAL CENTER; MEDICAL DIRECTOR, OCCUPATIONAL HEALTH
CENTER, BOSTON UNIVERSITY, BOSTON, MA
Dr. Barbanel. Hi. I wanted to let you know that I am very
much appreciative of being here today. And in addition to
working as chief of occupational and environmental medicine at
Boston Medical Center at Boston University, I am actually here
representing the American College of Occupational and
Environmental Medicine, and I am president of that
organization.
The Family and Medical Leave Act serves a very noble
purpose, as we know. I won't go into the details on that. But
we also know there is abuse of the Family and Medical Leave Act
by employers, employees, and physicians. In most cases, FMLA
leave is temporary and employees get back to work. The problem
with FMLA is the other times, when employees often, with
intermittent leave and diagnoses that are chronic, such as
migraine headache, for instance, or stress, take time off for
other reasons and end up maintaining the sick roll for long
periods of time, often indefinitely, contrary to the
individual's own mental state and benefit.
Employees are allowed to misuse FMLA, especially
intermittent leave, and miss work without consequences as a
result of physicians being too compliant with writing excuses
in some situations. Such a misuse is contrary to the employee's
own functionality both at home and at work. We know in
occupational medicine and from workers compensation that the
longer the employee is out of work, the more likely the
employee is to never return to work, often with a loss of job
and economic stability. The employer has no opportunity to
manage the employee's absence. In ADA, you are allowed to give
people light duty who are somewhat compromised but can still do
the job, but in FMLA that is totally at the discretion of the
employee.
The employer also has no way to intervene to direct the
patient's care. Many large employers have physicians who are
able to identify expert medical care for employees. And rather
than them running to get notes that are for other excuses,
their stress or their psychiatric problems could be better
addressed if physicians by the employer were able to direct
their care and help with their care.
The Chairman. Thank you.
Ms. O'Flaherty?
STATEMENT OF SUSAN O'FLAHERTY, VICE PRESIDENT AND MANAGER,
DISABILITY MANAGEMENT SERVICES OF BANK ONE, CHICAGO, IL
Ms. O'Flaherty. Hi. Thank you for having me here. I work
for JP Morgan Chase and I manage the Family and Medical Leave
for 144,000 employees. It is a wonderful thing that we have,
and we work well with our employees to do it. When it comes to
family and medical leave, we--I am in both those sides of the
world. I have my feet in both ends. We help the employees to
get the family medical leave they need, teach them how to use
it. We also work with the employers, we teach the managers of
these employees how to work through the issues with the
employees.
On both sides we have issues. I have assisted personally
with somebody who was trying to get family medical leave to
help take care of her sick mother. Both her and her sister are
employees. And what happened is the physician refused to sign
the paperwork, and the discussion--they called us because they
will call us with issues to assist them. And so I ended up
calling this physician and for 45 minutes discussing family
medical leave and you need to fill it out, it is her job
protection. She did so under duress, saying, ``Well, I'll do it
this time.''
On the other aspect, we will talk to managers and say,
``no, you can't do this or, you know, you can't talk against
the employee for this.'' And we will work with managers in both
ends.
But we also have employees who have family medical leave.
Intermittent is the one we hear the most problems with, not
when somebody is out to take care of somebody for a long time.
We hear the issues about intermittent. But again, it is not all
intermittent. We will have employees that call and say to us, I
have intermittent for my family member and I use it
appropriately; however, I hear people talking in the
cafeteria--and everybody talks even though you are not supposed
to discuss issues, they will be talking about it. And they hear
them saying, hey, I have a way to do this. If you need a day
off, use your FMLA. And she said, I personally am offended
because I use it when I need it for my mother. But I hear other
people that don't.
And we have a very hard way to get around and grab these
people that are abusing it. And like we talked about, it is a
wonderful thing; intermittent is wonderful. And for 95 percent
of people who use it, it is appropriate. But it is that 5
percent that makes the biggest noise for companies, for
employers, for the managers. How do we get around that and be
able to tie that down to help everybody work with it?
[The prepared statement of Ms. O'Flaherty follows:]
Prepared Statement of Susan O'Flaherty
Thank you for allowing me to participate in the Roundtable on the
Family Medical Leave Act on June 23, 2005. My name is Susan O'Flaherty
and I am Vice President of Disability Management for JP MorganChase.
I oversee the STD and FMLA administration for our over 140,000 U.S.
based employees. In this capacity, we work with both the employees
applying for FMLA and their managers and human resource business
partners. We assist the employees in attempting to apply for the leave.
For instance, I spent 45 minutes on the phone with the physician to
convince her to fill out the paperwork for two sisters who are employed
by JPMorganChase. Their mother was acutely ill and they needed
intermittent family leave to assist her. The physician was refusing to
fill out the paperwork for them. The physician was the mother's doctor
and wouldn't fill out the forms because it was for the employees' FMLA
leave. I explained the ramifications and the doctor did agree to fill
out the forms and the sisters received their needed FMLA for their
mother. We educate the employees and managers on FMLA.
FMLA provides important assistance to employees dealing with family
and medical issues that may arise. It provides employees the ability to
care for themselves or family members during a difficult period without
fear of losing their job due to these circumstances. I do not hear
complaints from managers around the continuous leave, such as caring
for an ill parent, newborn care, etc. Even though it may be up to 12
weeks, they can manage and plan for the absence in these crises. The
majority of difficulty and problems occur around the unscheduled
intermittent leave.
The basic intention of intermittent leave is a good idea. With
chronic conditions, there may be no warning or no need to see a
physician for care of every episode of illness. The inherent problems
with intermittent leave are that the definition of serious health
condition is not well defined and lends to interpretation. The fact
that a serious health condition can be defined by one visit to a
physician and a prescription being given is too vague. You can
literally go to a physician for acne, being given a prescription and be
covered. This is because physician does not have to give a diagnosis
for the leave.
We understand that employees may need to leave early or come in
late due to a health issue for themselves or a family member. When
employees inappropriately use this time it can be devastating to the
morale and productivity of a work group. We have many employees who use
up all their FMLA time to the minute. They know exactly the day and
amount of time that they regain and on that exact day it rolls back in
they automatically use that time again. This goes on year after year.
One of the staff was explaining to someone their FMLA rights and the
person came back to say, ``I know I am entitled to 12 weeks off within
a year, and I make sure that I use it every year since it is due me.''
There is a unit that has a 10-minute waiver period on tardiness.
This means that if they come in within 10 minutes of their designated
start time it is not counted against them. There is an instance where
an employee was seen by another employee driving into the parking lot,
she looked at her watch and was over 10 minutes late. She picked up her
cell phone called into her manager and said she was going to take an
FMLA day for her migraines. She drove off.
Another common problem is the employees who request a vacation day.
Sometimes the manager cannot give it due to so many people already are
out that day. The day comes and the person calls in as a FMLA day.
The majority of FMLA absences are appropriate and are used by the
employees to assist them in dealing with issues that arise. The fact
remains that the 5-10 percent that are inappropriate can be
counterproductive in a business and lend to morale and productivity
issues.
I had an employee call once and just wanted to vent. She wouldn't
give names but just wanted to tell someone. She said that she used
intermittent FMLA and it was a ``Godsend'' for her to assist her
elderly mother. She said that she only used it when she really needed
it and was thankful for it. She said that it bothered her when she was
in a lunchroom or bathroom and heard people talking about FMLA. They
were saying that FMLA covers just about anything and you can get your
doctor to write it so you can have off whenever you want to be off. You
just call in and say it is FMLA and you can leave whenever you want.
She said this offended her, as it reflects badly on the whole idea of
FMLA.
We need a way to address the people who abuse it. Their co-workers
take on the added burden. Their teammates may need FMLA for an
appropriate reason and it affects morale when others abuse FMLA. We
need to have some way to make sure that those who abuse it don't affect
those who truly are in need. Just because it is only 5-10 percent
doesn't mean we should just ignore the inappropriate use and let it go
on without consequences.
In conclusion, FMLA is a valuable resource to achieve a work/life
balance and assist people with getting through difficult times. We need
to address vague and obtuse definitions and have some definite
parameters and guidelines for legitimate use. It should be available to
those employees who truly need it, but not inappropriately used just
for the sake of being off 12 weeks a year. We truly want a work/life
balance, and a balance that is equal. To achieve this we need better
definitions of what is covered under intermittent FMLA that are
supportive of the employee's life outside of work and the sudden
emergencies or issues that may require their time away from work; but
we also need to have measures that are supportive of the work
environment and the ability of managers and businesses to continue
being productive. Thank you.
The Chairman. Thank you.
Normally, we would have an opportunity for a little bit of
interchange at this point. But on the schedule that we are on,
we won't be allowed under our time constraints to cover all the
questions if we do that. So what I am going to do is combine
the next two questions.
The remarks you have just given are akin to opening
statements. I will remind you again that you can expand on any
of the remarks you would have liked to have made or--I know
that some of you have your cards up. If you have some things
that you want to put in in response to things that other people
have said, we will accept those for the record. And we want
that information. We need that information. So if you would put
that in writing--and I know that is a little bit more
difficult.
And of course I would remind you that, by volunteering to
be on this panel, which we greatly appreciate, one of the
things that we hope that you will do is allow written questions
to be submitted to you, too, because sometimes we will need a
little bit more clarification on something that you have said.
So when we quit today, we will leave the record open for
another 10 days, which will allow you to expand on your
remarks, but it will also allow members of the committee to ask
some additional questions based on what you have said or, just
because of your background, some things that might help us--
some things that we might want to convey to the Department. So
that is some of the uses that are made of this and why we
expand it to a lot more people than we would normally be able
to do at a hearing.
So I appreciate your cooperation on it. We will combine the
two remaining questions so that we have time to get to any
parts of that that you might want to comment on. And if you
will keep your answers short, then we will be able to have,
hopefully, some back-and-forth on this after we finish with as
many people who would like to comment on it.
And you don't have to comment on everything. That is okay,
too. I know that we invited you here because you are all
experts in your area. I can tell from the comments that we have
already had that there is some very diverse background here,
some definite different viewpoints, and that is all very
helpful. So I appreciate your participation.
The two remaining questions are--and again, I will mention
that these three questions are ones that Senator Kennedy and I
mutually agreed on to see how much information we could bring
out to help us to understand and the Department to understand
and see if anything can be done to improve it in any direction.
So the two remaining questions are, are there ways in which
the implementation of the act might be improved? I know we have
gotten into a little bit of that already.
And, given the importance of maintaining a work-life
balance for all Americans, what do you believe are the most
reasonable options to achieve the desired balance?
Since you raised your cards while I had my head down, it
makes it difficult. But I know Ms. Boyd had her card up kind of
as a response last time, so we will start with her while I sort
this out and see how well my staff did.
Ms. Boyd. Thank you, Senator. Yes, the National Association
of Manufacturers strongly supports the Department of Labor
moving forward to look at the regulations, as they have
indicated they may do in their regulatory agenda. We think
that, as we have discussed, in three areas--``serious health
condition,'' intermittent leave, and notice--that those are
three areas--and nobody should be surprised that 10 years later
we find flaws with regulations. That is why regulators go back
and look and see how things are working and go back and ask for
comment and redo them--the time is right now to do that again.
And I suspect other panelists will want to talk about
expansion, but that expansion on a currently flawed framework
is a recipe for disaster. We need to fix those underlying
regulations before we can have any discussions about other
benefits that the act in the future may give to employees.
With respect to the third question, on work-life balance,
obviously an important issue for all of us both as employees
and employers. The best employers around have very vigorous
work balance programs, whether that is providing compressed
work weeks, flexible scheduling, on-site child care. There are
numerous things that employers do, in part to incur a market
advantage so that they become an employer of choice by
providing employees work-life balance, and obviously those
things should be encouraged. I think at some point, too, we
need to look at our Depression-era labor laws and see if there
are things that may inhibit employers from doing as much as
they can do for their employees because we are still by and
large, you know, working under labor laws that were passed
postDepression and they may not work as well for two-earner
families in this century.
The Chairman. Thank you.
Ms. Bravo?
Ms. Bravo. Thank you so much. Don't touch the serious
health condition, intermittent leave, or notice. I think Jody
Heymann adequately spoke to this, and I have written materials
on it. These are some things that need to be improved on
implementation. A lot of the people who call the 9to5 800
number don't know their rights, and there are studies on this,
how few people know their rights. And I appreciated Ms.
O'Flaherty's comments about how, unfortunately, many managers
are saying, ``Well, if it is your mother, you can't do it; this
is for new babies''--or something like that. DOL really needs
to spend more energy on educating both employees and employers.
And on expansion, we need to cover more people for more
reasons, and we need to make it more affordable. Laws aren't
written for good employers. They will do the right thing. We
have to make sure there is a floor and a protection. And just
because--you know, we have a situation where people are being
told you must work, you can't be on welfare, you have to be a
good parent. And yet, as soon as they are a good parent,
because they have a sick child, they are fired. We have to make
it so that if it is not a serious illness, thank God all kids
don't get cancer, but they do all get strep throat and ear
infections. And we need to have a law like the Healthy Families
Act that Senator Kennedy has introduced that says you don't get
fired for having these routine illnesses, either. That would
give some protection.
We also need to be able to use family leave, for example,
as a number of States have done, to let people be better
parents and go to their kid's school activities. And there are
children who tell us this.
And by the way, I want to say one other thing about the
impact on kids. Nine-to-Five had a session where we came to
tell our legislators people's stories about needed protection
for sick days. And a woman told the story of her son, who was
hit by a car, and didn't tell her because he knew she would be
fired if she didn't go to work. She didn't know. She went to
work. The other kid called. She went home, got fired, had to go
on welfare.
I told this story to another girl who said, you know, my
mother has never heard me say this, but when I was a kid--she
was 21 at the time--when I was a kid, kids hear everything. We
know everything that is going on. Every time I was sick I would
say, Should I tell my mom? Will we have groceries this week?
We have to stop the situation where kids send themselves to
school sick so their parents don't get fired.
Thank you.
The Chairman. Thank you.
Ms. Ness?
Ms. Ness. There have been a number of comments about
intermittent leave and the definition of ``serious health
condition'' and I have heard various proposals over the last
several years about these conditions. I would just like to
point out that some of these proposals would basically wipe out
the ability of almost half of the leave-takers who have taken
leave for medical leave because they have taken leave, for
example, for conditions that maybe required treatment for under
10 days.
I think Jody Heymann pointed out something very important.
Our medical system has changed dramatically. There are many
breakthroughs. There are many reasons why leaves can be
intermittent today and hospital stays are shorter.
And there are also a series of protections built into the
law for employers that perhaps there is not as much
understanding or familiarity about as there needs to be, so
education may be in order here. But for example, when an
employee has a need for foreseeable leave, 30 days notice is
required. An employer has the right to know the reasons for the
leave, to ask for periodic updates, to know the status, and to
ask about the intent to return to work.
With respect to intermittent leave, if an employee requests
an extension, if there has been a change in the way that the
leave is being taken, if an employer suspects that there are
changes that have occurred that would shed doubt on the
original validity of the certification, they can request
additional certification and they can request up to three
different doctors' certification.
So perhaps part of the problem is that employers are not as
well informed about the protections that are built in for them.
On the other hand, I think there are some protections that
could be strengthened for employees. So for example, employees
right now can be held responsible for their doctor being
negligent in getting their certification to an employer. An
employee could be fired if their doctor doesn't provide the
appropriate certification. That is something we would
definitely like to see improved.
We also think that in many cases the 30-day notice, which
is required, can be an enormous burden on an employee because
many employees don't know about the 30-day notice. And if it is
not going to cause severe harm to an employer, perhaps there
could be some more flexibility in the granting of leave,
without the need for that 30-day notice.
So I think that there are ways in which the regulations
perhaps can be improved for both employees and employers, but I
also think that there is a great need for additional education.
I would say one last thing here, and that is that we have a
country in which millions of workers every day are making
untenable choices between their jobs and their loved ones that
probably not one of us around this table has to ever make.
Ellen mentioned the need for making leave affordable. We have
almost half the work force in this country that doesn't have a
single day of paid sick leave. And when you look at low-wage
workers, that is three-quarters of the work force.
We tell people they need to be good and responsible family
members, but we put them in an untenable position of having to
choose--about whether they have to sacrifice their family's
economic well-being or take care of their family's personal and
family and healthcare needs.
Thank you.
The Chairman. Thank you.
Mr. Payne?
Mr. Payne. Kind of responding to Ellen and to Debra. You
are right in that good employers have been doing things all
along that are good, and we are no exception. We had generous
leave before the law was enacted. The law in a sense caught up
to us in a lot of ways. We just recently won the Family-
Friendly Workplace Award in our State.
But the intermittent aspect, really, is a problem. One of
the suggestions, where I think some other clarification could
come, would be with the 15-day notification, wherein the
employee has 15 days to provide information back documenting
that it is actually a serious health condition that would
qualify for an intermittent leave. And our experience has been
that--we have given 15 days, we have given 30 days, we have
given 45 days and then we take an action, and then 2 days later
the documentation appears, and gone--you know, talked legally
with them and it is the law. FMLA did not support us enough. It
was too vague.
And I agree, Debra, there needs to be more education
because FMLA is so confusing. There is--you know, the joke is
you talk to five lawyers, you get six answers on how to
interpret the FMLA.
The Chairman. Thank you.
Dr. Mulvey?
Ms. Mulvey. Thank you. I would like to address question
three on work-life. Work-life balance is very important. I have
conducted a number of studies in this area that have evaluated
the ways employers can help employees balance their family
life, especially caregiving, with work.
Today employers are searching for strategies to attract and
retain employees, especially amid an aging work force and a
looming labor shortage. It is the looming war on talent you
have heard about. My research has shown that work-life programs
are very important in achieving this goal. Specifically,
employers who provide flexible work schedules, generous paid
leave for workers of all ages, and phased retirement and
eldercare programs for older workers are more successful at
retaining their top performing employees than those who do not.
So employers who want to compete in labor markets will be
addressing these issues voluntarily, without mandates. I would
be glad to share my research with you.
The Chairman. Thank you. And we would appreciate that. And
also appreciate the brevity. That was the record.
[Laughter.]
The Chairman. Ms. Boyd?
Ms. Boyd. I just wanted to clarify--Debra raised a couple
of points. I think with respect to the Department of Labor
potential rulemaking that there are a lot of ways to address
some of these issues that both you have raised and that have
been on the employer's side, and I don't think anybody around
this table suggested one particular way. I certainly have never
said that a serious health condition, you know, should be 10
days. So I think that is a misrepresentation of what we have
been talking about.
I think that the way to proceed on this is to have the
Department of Labor actually begin the rulemaking process. That
is what a rulemaking is for. Let the public make comments, let
them see what they get back.
And also, with respect to the surveys that have been
mentioned before, too, those surveys are terribly out of date
and we would like to see them perhaps redone, given the current
environment and what we are hearing from employers.
Thank you.
The Chairman. My apologies, too, for going to somebody that
already spoke before others got a chance to speak. We are
having a little trouble with the list here, but I hope we get
that corrected now. Thank you.
Ms. Dohnalek?
Ms. Dohnalek. In a hospital setting, I think intermittent
family medical leave and modified work schedules may be the
most difficult to staff and time-consuming to track. Staffing
for a portion of a shift may be impossible, and this period
typically goes uncovered. This impacts patient care and safety,
obviously. This also places undue burden on the system and on
colleagues. Other workers are entitled to their time away from
work, but may feel obligated, especially in a healthcare
setting, to cover for employees that are out on FML. Although
the employee is requested to schedule leave at times that do
not unduly disrupt operations and to notify the employer in
advance, how can the organization be certain of this or control
this? Covering for a certain time off, perhaps Mondays or
extended periods, is less cumbersome than intermittent short
periods in a healthcare setting.
So if we could minimize the ability to use intermittent
leave because we need to consider the effect of several staff
out on FMLA and the impact to satisfaction and safety on many
levels. So reconsider intermittent leave and require doctor's
visits with each absence, although physicians typically meet
the request of the employee. Maybe a requirement to work in
collaboration with the organization to schedule leave at the
time that is least disruptive to the organization.
I think another thing that needs to be looked at is
tightening up the definition of what constitutes a ``serious
illness.'' Originally the act was developed for things like
chemotherapy treatments, radiation, etc, and now it seems that
it is abused for sick time. The threshold for acceptance is on
the employer rather than strict guidelines and expectations.
And one more thing that I would like to possibly be
considered with the act is supporting institutions in managing
the FMLA when appropriate. Institutions should not feel forced
to make decisions in favor of the employee due to the legal
implications.
The FMLA is an example of understanding that health issues
occur and that employees should not be penalized for the
unforeseen events. However, changes to the act can be an
opportunity to improve the balance that needs to be struck
between the employer, as in the case of hospitals and their
needs for quality patient care, and the employees who provide
it.
Thank you.
The Chairman. Thank you.
Ms. O'Flaherty?
Ms. O'Flaherty. In our company we do allow pretty hefty
benefits. We do have a paid 12-week parental leave for both the
primary caregiver and a week for the nonprimary caregiver--
which is separate from the FMLA. It can run concurrently. We
also provide an Acute Policy for acute treatment such as
chemotherapy or radiation for the employee, and it is a paid--
they work 60 percent of their time. That way they can
intermittently be out, and we pay them their regular salary.
With all our benefits, we also still do have problems with
intermittent leave. Again, it is a wonderful thing. What I
would challenge people to look at is what can you do and what
can we do besides getting the doctor's advice and going back
for recertifications for those people who have issues. How can
we challenge those people who are deemed by their fellow
employees, because it not only affects the employer themselves,
but their fellow employees who have to take up the slack. When
they hear them talking about issues, what can we look at to
kind of put our arms around that for their fellow employees
also?
And I think that is one of the issues of intermittent. It
isn't that it's bad, but how do we--that 5 percent causes the
largest noise. And I think that is the thing we need to look
at. What can we go around to do that?
For instance, somebody who asks for a vacation day and they
can't have it because there aren't enough vacation days for
everybody else using it that day, so they are not allowed to
have it. So, okay, you can't have a vacation day. They turn
around and on that day they call in FMLA. And it happens
numerous times and there is not a way to get around it. If
there is a way to do it without harming the individual, without
harming the employer and the other employees, to come up with a
way to actually certify and see the difficult issues that go
along there.
The Chairman. Thank you.
Ms. Willman?
Ms. Willman. I think it is apparent from what everybody has
said that we want the same thing here. We want employers to
comply in good faith with the FMLA and the regulations, and we
would like employees to do the same thing. And the way to deal
with that is not expansion of the act, not until we have at
least fixed the regulations where the problems are occurring.
And I also think there is a perfect opportunity for a
bipartisan effort here, since we all want the same thing.
The place to fix this is at the DOL. They came up with the
regulations, that is where the problems are. If the problems
aren't fixed there, they are going to be fixed by the courts.
The disadvantage of having the courts fix the problems is that
all of the stakeholders who are sitting in this room today will
get no say in what the courts will do with those issues.
Right now, since Ragsdale, we have had over 100 cases that
have cited to Ragsdale. There have been at least 12 regulations
invalidated by Ragsdale itself which have never been fixed in
the regulations--a reason in and of itself for the DOL to go
back and change and eliminate all the categorical penalties in
there.
In addition to that, we are now seeing the Federal courts
of appeals, at least the 7th and 8th Circuits, have basically
taken the position that the DOL exceeded its authority by
allowing permanent leave for unscheduled intermittent absences.
And I quote to you from the 8th Circuit case: ``The FMLA does
not provide an employee with a right to unscheduled and
unpredictable but cumulatively substantial absences or a right
to take unscheduled leave at a moment's notice for the rest of
her career.''
The problem with intermittent leaves is that the employee
who stays home makes the medical determination on whether he or
she can work that day. A doctor does not make that decision.
The employee is not required to call the doctor, not required
to see the doctor. The employee just has to pick up the phone
and say I'm not coming in that day because I'm taking an FMLA
day. And there is not much the employer can do to fight those
types of abuses.
There are two things I think need to be changed in the act.
One is to go back and look at the definition of ``serious''--
not in the act, in the regulations. I am sorry. The definition
of ``serious health condition'' and focus on the word
``serious.'' And also in the regulations, to remind the
Department of Labor that the act itself starts out and says,
``An Act to grant family temporary medical leave''--not
permanent leave--``for chronic serious health conditions.''
Thank you for the opportunity to share comments.
The Chairman. Thank you.
Ms. Alexander?
Ms. Alexander. Thank you.
I think as I listen to the entire conversation--I just made
some notes as I listened--and the way that I would approach
problem-solving in building a business, and I think that when I
hear that we are trying to make changes when it is working for
95 percent and we want to make these changes because we have 5
percent are abusing, and now we are going to affect the 95
percent by the changes that we would make, it concerns me. I
think that there is a time where you step back before making
these decisions and look at the comprehensive problem that we
have. And the problem that we have is that we do have issues
with work-family balance in our Nation at this point.
And I hear the numbers of measurements of what the FMLA
costs. Well, from what I hear, those costs are the cost of
illnesses in our Nation. It is the cost of having to take care
of our families. We have chosen right now to implement the
FMLA, but those costs would be there whether the FMLA was there
or not. And so they are not true measurements of the costs of
the way we chose to do it, and so I think we need to begin to
review and say that if it is done in this manner, our cost is
this in solving this problem; if we want to make a change, then
let's have an improvement and show how that improvement
improves or decreases the cost that this issue brings to our
Nation.
So I think we are looking at the act itself and saying that
the cost of it is the act. No, the cost that we are measuring
is the cost of illness and the need to take care of our
families. And so we need to separate those two.
I think the other thing that I would like to see is just
for people to come together and, rather than look at the
problems, let's find the places where this is working, let's
find the examples where there are companies and industries that
have made this work and made it work well, and see the things
that can be learned from that and shared with others. Because
at this point, we are looking at taking the problems and going
and fixing them by changing regulations, rather than looking at
the problem itself and trying to correct the problem.
The Chairman. Thank you.
Dr. Heymann?
Dr. Heymann. Thank you.
First, I want to briefly respond to the point that has been
raised about addressing intermittent leave and serious health
conditions. Specifically what I want to say is, while specific
proposals haven't been raised in this forum, in other forums
suggestions have been made that one thing that might be done is
expanding the length required for intermittent leave and
expanding the length required for a serious health illness. And
so I just want to go on the record, and state my deep concerns
about those, for two reasons.
One, intermittent leave, the importance of being able to
take that brief amount of time. It is easier in a healthcare
setting, it is easier in other work settings to cover somebody
for an hour than a half day. We should never make people take
longer unpaid leave than they need.
In terms of the duration-of-illness piece around serious
health conditions that is currently part of the definition, I
just want you to know that the average hospital stay right now
for adults with heart disease is only 4.6 days. The average
hospital stay for children with asthma is 2.3 days. The average
hospital stay of any kind decreased from 8 days in 1970 to 5
days in 2001. These are short. We need to make sure that these
kinds of serious illnesses remain covered.
OK, so what can we do? We do think there are things that
can be done to make it better. I just want to mention a couple
of things.
First, I agree with what has been said by a number of
people that more Americans need to know about their rights
under FMLA, particularly those who have family members with
serious chronic conditions. I have spoken with mothers whose
children have been hospitalized with asthma because they didn't
take the day off from work, thinking they would have to lose
their job and had no choice. I have also spoken to mothers who
lost their job when they did take that day to care for a child
in the hospital with asthma, a condition that affects 9 million
children. There is confusion out there. There is a lack of
knowledge about coverage and we need to make sure,
particularly, that those families who have one of the millions
of children with the chronic condition know about their rights
under the FMLA.
Second thing we could do, we need to begin to discuss and
address paid parental leave. Nobody here has cited any concerns
about how parental leave is working under the act. The main
problem with it is the lack of pay. Right now, the leading
reason Americans can't make use of the FMLA is they can't
afford it, 78 percent of Americans say they don't do it because
they can't afford it.
We studied laws in 168 countries around the world. One
hundred sixty-four of them guarantee paid leave for mothers
when they have children. One hundred sixty-four. every single
industrialized country, but, you can tell by that number, most
of the countries in Africa, Asia, Latin America, Europe,
wherever you look. Who doesn't besides the United States? Papua
New Guinea, Lesotho, and Swaziland. That is it. So one of the
things we really have to do is start thinking about paid
parental leave.
The last piece I want to mention, to your third question,
what else should we be considering, the Healthy Families Act
was introduced last year, a way to give short-term paid sick
leave. Many companies already do this, as has been mentioned.
But half of Americans do not have that. Having paid sick leave,
parents who have it are five times as likely to be able to care
for their children when they are sick. Adults who have it are
2.5 times more likely to be able to keep their jobs when they
are sick, and return to work. It is essential, and we need to
cover the 59 million Americans who currently don't have it.
Again, this is something that, by all global standards,
exists very broadly. One hundred thirty-nine countries already
provide for this, and it is something we could do. I would hope
that the committee would take seriously the Healthy Families
Act or similar legislation to guarantee short-term paid sick
leave.
Thank you.
The Chairman. Mr. Prybutok?
Mr. Prybutok. Thank you. As many panelists have mentioned,
I believe that the definition of serious health condition needs
to be reviewed and made more clear. Particularly for a small
company who cannot afford an HR professional and lawyers. When
regulations are unclear and nonspecific, it presents a burden
and a problem.
Regarding the FMLA, we really have not had that significant
a problem with it at our current size, but I do believe that it
should not affect employers of 50 employees. I think that is
too small. I think the threshold should be increased because of
the costs to employers.
Relative to the work-life balance, we operate in a very
competitive business environment. All businesses that I
interface with talk about the difficulty in hiring and
retaining quality employees. Consequently, a natural
consequence of the competitive business environment is--and due
to low unemployment in the United States and a robust economy--
is the need to be flexible with benefits, to be competitive in
the benefits that are offered, and we see more and more
movement toward that flexibility.
The concern we have, as some of the panelists have raised,
as far as increasing the coverage of FMLA and increasing
mandates is that as you increase mandates and remove the
flexibility of manufacturers to administer benefit policies,
employers are going to acquire the least-cost method of meeting
the benefit mandate. What is going to happen also is they are
going to tend to reduce their employee rolls to an absolute
minimum, utilize temporary workers. We believe it is going to
potentially lead to increased unemployment, decreased
productivity, and the final analysis is we look across the
ocean and we will have the European experience. And I do not
think that is good for business; I do not think it is good for
the employees.
The Chairman. Thank you.
Mr. Lancaster?
Mr. Lancaster. Yes, our suggestion on this issue is that
when a collective bargaining agreement exists, such as ours,
that provides for sickness, provides for sick leave, and has an
attendance policy, that agreement should govern in this
situation, particularly when it goes beyond what is provided
for in the FMLA, and ours does in terms of paid leaves.
In any event, some other suggestion is that the liberal
definitions that exist in the regulations need to be tightened
up to prevent the abuse. We think that the Department of Labor
has gone far beyond the intent of Congress here. In fact, due
to the liberal definitions in the regs, we feel that one-third
of all of our associates could qualify for FMLA leave at any
time and without prior notice, which would just make it
impossible for us to run our business.
The intermittent leave provision that presently provides
leave without notice is very difficult for us to deal with. We
also need to provide for verification of health issues in some
meaningful, realistic way. Currently there are 48 hours to
challenge; doctor notes are not required; second opinions are
not practical. So there are a lot of problems with the ability
to verify. Currently we see FMLA intermittent being used for
tardies, to justify tardies, and leave early from work
situations. Our people are very well aware of the FMLA because
there is instruction that goes on by the union on this.
In terms of costs, the costs that we see, when people do
not show up for work we have a manpower shortage. We cannot get
our production done in the 5 days. We have to schedule
overtime, time and a half. So that is a real cost to us, not
just the cost of the medical problem.
Thank you.
The Chairman. Thank you.
Ms. Bravo?
Ms. Bravo. I just wanted to say two things. I appreciate
that there are best-practice employers who do the right thing.
When the Family and Medical Leave Act was passed, two-thirds of
covered employers--two-thirds--had to change one or more
provisions because they were not already complying, and mainly
it meant they were not letting fathers take leave, they were
not letting adoptive parents take leave, they were not letting
people take leave for the serious illness of a family member.
Second, I appreciate that employers need flexibility. There
is a certain flexibility they should not have, and that
includes firing someone because they have a chronically ill
child or ailment of their own.
Thanks.
The Chairman. Thank you.
Ms. Ness?
Ms. Ness. I would like to second something Ms. Boyd said,
which is that we are desperately in need of some more up-to-
date objective research. I am sure if our coalition went out
and did a select survey of our constituents, we would get a
very different perspective on the Family and Medical Leave Act.
It has not been done since the year 2000. I think it is time
for us to once again survey a representative sample of
employers and employees so we can better understand what is
working and what is not.
From the latest research we have, we have numbers in the
high 80s and 90s, both from employers and employees, saying
that it is working. And, again, I think that a lot of the
questions that have been raised today about the lack of clarity
in the regs are questions which could be benefited from
additional education.
I will close by saying that the support for policies that
would make our Nation more family friendly goes across the
board. It is not a red State or a blue State issue. If you
survey people, every demographic group, every economic group,
every part of this country, people talk about the need to
support our families and to not have people in this untenable
position of having to choose between their loved ones and their
jobs. They need to be able to take care of both.
So I would urge this committee to encourage the Department
of Labor to take on some new research in this area.
The Chairman. Dr. Mulvey?
Ms. Mulvey. Thank you. I would like to say a few things.
The costs that we have talked about are not the costs of
illnesses, but they are the costs of lost productivity, lost
profits, and replacement labor. And in terms of the way surveys
are done, our survey did cover half a million workers, and our
prevalence numbers were very similar to the 2000 survey, and
our duration numbers were very similar. So we are confident
that we are capturing the right characteristics.
And one quick thing about the international issue. Many of
the countries that are providing generous paid leave in Europe
also have very poor economies and high unemployment rates. So
that is a path that I do not think we want to go down.
The Chairman. Thank you.
Dr. Heymann?
Dr. Heymann. I just want to respond briefly on the cost
issue in two ways.
The first is just to say simply those countries that have
far greater benefits than the United States are most of the
countries in the world. As a result, there are many of these
countries that happen to have very low unemployment, lower
unemployment than we do. Many have high productivity. There are
some with high unemployment and low productivity. But it is
clear when you look at the countries involved and you look at
the numbers, there is no link to unemployment or to
productivity among these.
The second thing I want to talk about is the cost that we
really have not talked about here, which is the very high cost
when we do not do enough. And those are the unnecessary
hospitalizations. I mentioned the asthma case. That is just one
of many. The unnecessary illnesses that occur when we have the
spread of infectious diseases. The U.S. Centers for Disease
Control and Prevention argued that people should not go to work
this year when they had influenza. Why? Because it leads to
over 90,000 hospitalizations, and 36,000 deaths a year. It has
a tremendous economic cost from lost work. And yet people go to
work because they have no choice. So there are enormous costs
to us for doing nothing.
Thank you.
The Chairman. Thank you.
Ms. Alexander?
Ms. Alexander. Just two quick points. Thank you for calling
on me.
I still look at the point that you can have on any given
day or at any given time a number of people that need to be out
for various reasons, and I have actually reviewed this with our
head of HR; that in reviewing the FMLA, you know, we could have
someone in a small company where all of a sudden I have four
people that need to be out. But as we reviewed it, we quickly
recognized the fact that it was not the FMLA that required them
to be out. It was because of what just happened in their life,
and that would happen regardless whether the FMLA was there or
not. And so that is not what is causing these issues. It is the
things that people have to deal with in their life, and that is
something that I am going to have to address with my company
and with how I am going to run it.
The other thing that I would say is that when we talk about
the loss of productivity, we keep talking about the loss of
productivity because someone is out, and we are not addressing
as Patti talked about or what I have personally experienced or
what I see with my employees, is the loss of productivity where
someone is at work for those hours because they could not
afford to leave, but their mind is not with me. Their mind is
on the fact that their child is there and they need to be with
them. Or, you know, we mentioned a migraine headache, whether
it is covered under this or something else, if someone has a
migraine headache, if they leave for an hour and take the
proper medication, I have lost them for an hour. If they do
not, I have lost them for 8 hours to 3 days because of the
treatment of that migraine which has progressed too far at that
point. And so there is loss of productivity by not allowing
these intermittent leaves to take place.
The Chairman. Thank you.
Mr. Lancaster?
Mr. Lancaster. Thank you. As I mentioned, American Axle is
in the globally competitive automotive industry, and anything
that drives U.S. production costs jeopardizes U.S. jobs. I
would like that to be taken into account.
Also, something that has not been discussed here is the
cost driven by the poor morale of workers who see the abuses.
And we have had situations where hourly workers have come to us
to complain about abuses by their coworkers. And, in fact, we
have tried to address those, but because of the law of the
State, even when we found an abuse, there is not much we could
do about it.
Third, I would like to point out that in terms of balance
of work life and personal life, in terms of our schedules of
annual working days per year, we start with 365 days. We back
out weekends, 17 paid holidays, and then 3 weeks, which is the
average vacation time. That brings us down to 229 working days
in the United States. We have a very small operation in India;
they have 249 working days. Our operation in Brazil has 264
working days. Our operation in Mexico has 282 working days.
The more days we allow people not to come to work, it just
jeopardizes our ability to compete and drives these jobs
offshore.
The Chairman. Thank you.
Ms. Dohnalek?
Ms. Dohnalek. For the record, I would like to respond to
the statement that it is easier to cover a half-day in a
healthcare setting than an entire day. I disagree with that.
That does not tend to be my experience. It is much more
difficult to cover a half or a portion of a day than an entire
shift.
The Chairman. Thank you.
Ms. Marsden?
Ms. Marsden. Yes, thank you. I would just like to make a
couple of comments in regard to, again, a request to take a
look at the intermittent leave periods of time, and to suggest
that it needs to be greater than just 6 minutes. We need to be
able to get a handle on it from the standpoint of someone who
is taking it, and I have had this happen on a continuous basis
for--you know, year after year. One-hour increments to me seems
like it would be something that should be looked at. And we
have sick leave provisions--many employers do--for parents to
be able to take time to go take their children to the doctor or
for minor cases. And so I would like that to be looked into.
I would also like to have the ``serious health condition''
better defined. Again, I would like to make that statement
clearer. I don't think it is there. It is difficult to
administer this leave without doing that. And I think we need
to provide assistance to the doctors regarding the form that
they have to fill out. I feel like that form is very onerous
when they take a look at it. They go through and put very
cryptic remarks. You cannot read it most of the time. And so I
would suggest that perhaps the form needs to be made more user
friendly.
Thank you.
The Chairman. Thank you.
Ms. Ness?
Ms. Ness. Since we have been talking a lot about costs, I
just want to raise another arena of costs. We have over 300,000
bankruptcies in this country that occur every year due to
people having unpaid leave during a period of illness. It leads
to loss of pay, loss of job, loss of health insurance. It sets
people off on a cycle of economic disaster. Every 30 seconds
somebody in this country files bankruptcy in the aftermath of a
health problem.
When we began our work to advocate for family and medical
leave, we heard many of the same arguments that we hear today.
We were told it was economically unviable. We were told we were
crazy, that this was just not consistent with the way we do
things in this country. We implemented Family and Medical
Leave. The economy never did crash. And I think while there are
costs associated with implementation of Family and Medical
Leave, the research that needs to be done should also look at
the costs associated with not having it. And long before we
ever enacted this law, there were many, many companies in this
country who were providing family and medical leave benefits
far more generous than this law, and they were doing it because
it made good business sense.
Thank you.
The Chairman. Thank you.
Dr. Barbanel?
Dr. Barbanel. I want to just talk about the ``migrating
diagnosis'' in Family and Medical Leave. Somebody might come in
with a musculoskeletal problem and then that gets better, and
then they are comfortable with being out of work so many days a
week or all week, and then they cannot go back because they
have the stress problem. And then you try to unwind that and
find out whether the person is being adequately treated, to the
extent somebody will tell you that, and then that diagnosis is
that the person needs 1 day off from work on a Friday. And it
is a continually evolving thing for employees that misuse the
Family and Medical Leave Act.
The Chairman. Thank you.
Mr. Payne?
Mr. Payne. Thank you. I just wanted to kind of respond and
reiterate speaking from a healthcare setting, and, Marie, I
understand from some companies that it is not the issue that it
is in healthcare, but it is a tremendous issue. You have to
understand, we are stressed for staff to begin with. We have
9,000 employees, about 2,000 nurses. On any given day, I have
200 nursing openings that we have been struggling to fill for
months. So we already are working with temporary staffing and
shifts that go unfilled. And when you couple that with chronic
intermittent call-ins, it is a problem. And they do call in
first thing in the morning without any prior notice. They will
give us the proper 2 hours before the shift starts, but that
means they are not there for that day.
The intermittent aspect of it, what we have been advised is
that when someone--when you get the initial medical
certification, you cannot have a discussion. You can ask for a
second opinion. But once the intermittent diagnosis kind of
goes on and you are 6 months into this intermittent thing, your
ability to then renegotiate with the doctor is very limited.
That is how we have been advised, and we are pretty certain
that is good legal advice. And that is frustrating because we
feel that management feels powerless and hopeless and deeply
frustrated by what is often perceived as abuses of the system.
The Chairman. Thank you.
Ms. Philips?
Ms. Philips. I just wanted to restate how necessary the
FMLA was for my family. Like I said before, it was a godsend
for us. We are just now getting back on our feet. FMLA, yes, is
unpaid. I used everything else possible because we needed my
salary. But, more importantly, as I said, we had to have the
insurance. Without the FMLA, I don't know how my family would
have survived.
Another important part of treatment for your child when
they are ill like this is stability in the family, and that is
the one thing that the FMLA gave us, was stability and peace of
mind so we could focus on helping our daughter.
Thank you.
The Chairman. And, Ms. Boyd, for the concluding statement.
[Laughter.]
Ms. Boyd. That is a lot of pressure, Senator Enzi. Just a
couple of quick points.
Back to intermittent leave, and this may be a little bit of
a wrap-up of what people have said before, and that is that it
is unrealistic in all settings to think that somebody can be 6
minutes or 10 minutes late or 15 minutes late and that
everything will just begin then when they show up. Obviously in
healthcare, you need people to be there when they need to be
there. The same is true in a production setting and
manufacturing.
It is part of the problem with having unscheduled
intermittent leave, that those small chunks of time where
people can just show up continuously tardy is problematic. It
means a shift does not begin on time, and it means you have to
cover in some other way.
I think what we are really talking about from the employer
perspective, when we look at these regulations, is that there
is a real management challenge that was not, I think,
intentional when the regulations were written. But when you
combine this very broad definition of ``serious health
condition,'' the ability to take time off for chronic
conditions in very small amounts of time, and not having a lot
of ability to do the follow-up, that you really cannot manage
an absence if you suspect that there is something going on
other than a real legitimate absence. You cannot ask the same
questions that you would ask in a situation where somebody was
just calling in for sick leave. And we know it is a very small
percentage of the population, but there is enough of a
percentage of the population that it causes disruption in
workplaces that use the FMLA as a shield to prevent discipline
and to protect their jobs.
That is problematic, and it should be really problematic--
and I think we have heard a little bit about the morale
issues--for people who use the statute properly. It undermines
the legitimate use of the statute to have that small percentage
of the population being able to use it improperly. And that is
the very targeted, tiny issue that employers would like to see
addressed in the regulations. I think it can be done without
undermining the basic protections of the statute, and that
ought to be our goal.
Thank you.
The Chairman. Thank you, and I want to thank all of you who
took the time out of your day and your lives to provide us with
information. We have got a lot to digest, and I assume that we
will get more.
I want to particularly encourage those of you who had some
statistics to submit those because I was not a fast enough
writer to get them. I suspect that my staff did a much better
job than I did, but those numbers are always helpful. If any of
you want to expand on comments that you made or comment on
comments that others made, we would appreciate your submitting
that.
I would mention that Senators Kennedy and Dodd are
submitting statements for the record, and all members of the
committee may be asking you some clarifying questions, and I
would appreciate it if you would answer those as quickly as
possible so that we can make them a part of the record. And we
will be sharing all of this with the Department of Labor as
well. So we have kind of used up our allotted time today. I do
want to thank all of you for taking the time to participate. I
particularly know how long it takes to get here from Gillette.
[Laughter.]
The Chairman. I make the trip to Wyoming most weekends. I
only get to Gillette about once a quarter because I have to get
all over the State.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Senator Edward M. Kennedy
Millions of hard-working men and women are facing an
increasingly impossible choice today between the jobs they need
and the families they love. The percentage of two-parent
families in which both parents work has doubled since 1970;
more than 10 million single parents are struggling to balance
their jobs and their family obligations; and nearly 21 million
full-time employees are also caregivers for elderly relatives.
The delicate balance between work and family becomes
especially difficult when a new child arrives or a medical
emergency strikes. I learned this first-hand when my son was
diagnosed with cancer and lost his leg in 1973. Months of
difficult treatment followed, and he had the good fortune to
become cancer-free and return to a full life. I was fortunate
enough to be able to take the time I needed to be there for
him.
In 1993, with the strong support of the National
Partnership for Women and Families and many others, Congress
enacted the Family and Medical Leave Act. In the 12 years since
then, the act has been a significant success, enabling more
than 50 million Americans to take time off when they needed it
most without fearing the loss of their job. These enormous
benefits to working families have come with little cost to
businesses. A Labor Department report in 2000 found that the
act has had a positive or neutral effect on 90 percent of
businesses' profitability and 84 percent of businesses'
productivity.
Despite its success, however, the act is now under attack
by opponents who are calling on the Department of Labor to
undercut its critical protections. They want to narrow the
definition of ``serious health condition.'' The current
regulations allow for job-protected leave when an employee
needs more than 3 days of treatment and recovery, and it's a
fair and reasonable requirement. If the opponents' current
proposal had been in effect over the last 12 years, it would
have excluded 25 million workers who used the act for serious
illnesses such as acute appendicitis, heart attacks, strokes,
hernia repairs, and pneumonia.
Opponents also propose a change in the intermittent leave
regulations, which could force employees who require frequent,
short treatments--such as for chemotherapy, dialysis,
occupational and physical therapy, or pre-natal visits--to
exhaust their leave. It would burden employers with additional
administrative costs as well.
These changes would be flagrantly inconsistent with the
needs of today's workers and would eliminate much-needed
flexibility. Surely, Congress and the Administration should not
undercut the act when the problem of the work-family balance is
now taking a heavy toll on working families. Instead, we should
be building on the act's success by expanding it. The current
act does not provide protection to employees in firms with
fewer than 50 employees. It also does not allow leave when
parents need time to be more involved in their children's
schools. I have co-sponsored the Family Medical Leave Expansion
Act, S. 282, which Senator Dodd has introduced to address both
of these issues.
As employees try to balance work and family, they also need
paid time off for everyday illnesses and preventive care, such
as annual check-ups, or when their child is sick with a cold,
or when an elderly parent needs to be taken to a doctor. To
deal with these problems, I have introduced the Healthy
Families Act, S. 932, which would directly benefit 66 million
Americans by guaranteeing workers 7 paid sick days a year to
meet their medical needs and those of their family members.
[The prepared statement of Senator Dodd was not available
at time of print:]
The Chairman. This has been very helpful, and it does make
sense for all of us to periodically review how the laws that
are enacted are actually in effect, and that is one of the
requirements that our committee has, is to provide oversight
over the jurisdiction that we have. And, of course, we have
jurisdiction in health and education and labor and pensions,
and besides that, we have 38 reauthorizations we are supposed
to do in those areas by the end of September. So our committee
has one of the biggest workloads, but we are trying to delve
into these areas where we need to know more and we need to
share more and we need to educate people more. And you have
made a tremendous start on that today.
I think there was a good deal of common ground here today
and just a lot of outstanding comments and suggestions. And all
of us recognize that for employees it has been a great benefit
to be able to take time off to address their own or family
members' health needs. It is a good benefit. But from what I
have heard today, we can make it better.
Thanks for your comments and I express that on behalf of
the entire committee. Thank you for being here today, and I
appreciate the great participation from spectators, too.
[Additional material follows.]
ADDITIONAL MATERIAL
Response to Questions of Senator Enzi by Patrick Lancaster
Question 1. You testified that obtaining second opinions during the
medical certification process is not practical. Please explain why and
what alternatives you would propose.
Answer 1. The FMLA prohibits employers from obtaining a second
opinion from a healthcare provider that is ``employed on a regular
basis by the employer.'' 29 U.S.C. 2613(c)(2). The Department of
Labor's (DOL) regulations have interpreted this provision very broadly
to mean, not just that employers cannot use company doctors or nurses
actually employed by the employer, but also that the ``employer may not
regularly contract with or otherwise utilize the services of the
healthcare provider furnishing the second opinion unless the employer
is located in an area where access to healthcare is extremely limited.
. . . '' 29 C.F.R. 825.307(b). In addition, in situations where the
health of a family member is involved, obtaining second opinions for
family members of employees is very burdensome given the fact that
employers do not maintain family members' addresses and telephone
numbers, or the wide geographic network of physicians necessary to
conduct evaluations on such family members for second opinions.
There are several problems with the broad restriction on who can be
used for second opinions:
1. DOL has unreasonably expanded the prohibition beyond that which
was contemplated in 29 U.S.C. 2613(c)(2);
2. Large employers, like American Axle & Manufacturing, Inc.
(``AAM''), typically administer hundreds and sometimes thousands of
FMLA leaves each year. It is overly burdensome to require such
employers to engage the services of a large number of different
healthcare providers for the purpose of seeking second opinions for
multiple FMLA leaves;
3. The availability of a tie-breaking third opinion by a healthcare
provider selected jointly by the employee and employer provides
adequate protection to the employee;
4. The DOL's regulation is vague in that it does not specify what
is meant by ``regularly contract with or otherwise utilize.'' Does this
mean that using the same specialist for second opinions on two or three
employees is not permissible? Or is it 10, 12, or 20? There is no
reasoned basis, given the availability of the tie-breaking third
opinion, for requiring an employer to find a different healthcare
provider every time it seeks a second opinion about alleged serious
health conditions that may be similar in nature. Yet that is what the
DOL regulations arguably require.
The solution to this practical problem is simply to follow the
express language of the statute. Preclude employers from using
healthcare providers they actually employ but not otherwise restrict
their selection of healthcare providers in the general marketplace.
Question 2. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 2. With all due respect, I do not agree that the FMLA has
been largely successful and has worked in almost all situations, nor do
I believe that this was the consensus of the Senate Roundtable. I also
do not agree that regulatory changes should not be made.
Although the FMLA has certainly achieved its objective in providing
large numbers of employees with the opportunity to take job-protected
leaves when facing serious health problems or life-altering events such
as the birth of a child, it has achieved this objective by imposing a
huge administrative and cost burden on employers and by creating an
incredible labyrinth of regulations that are rife with opportunities
for missteps even by the most conscientious of employers and for abuse
by employees.
The most difficult aspect of the FMLA to administer is intermittent
leaves. The problem of administering intermittent leaves is exacerbated
by the DOL's broad definition of what constitutes a serious health
condition. As a result, most of the abuse experienced by AAM has come
from intermittent leaves. Employees receive medical certification
regarding intermittent conditions such as migraine headaches, chronic
back pain or asthma, conditions that are notoriously difficult to
observe, and then use the availability of intermittent FMLA leave to
come to work late, leave work early or take casual absences without any
penalty under the attendance program established in the collective
bargaining agreements with the unions that represent all of AAM's
hourly employees in the United States. The same is true for some
employees who obtain intermittent leaves to care for family members
with allegedly serious, but intermittent, health conditions. Because
the DOL's regulations prohibit employers from requiring such employees
to obtain an excuse from a healthcare provider whenever they take
intermittent FMLA leave--something employers have historically
requested of employees who miss work--or to obtain an effective
recertification of the serious health condition (an employer is not
allowed to get a second or third opinion when seeking a recertification
or to seek a recertification more often than every 30 days), the
employer has no effective way to ensure that employees are truly
missing work for a reason that qualifies as FMLA leave.
The regulatory changes I and others suggested at the meeting were
not designed to limit the rights of legitimate FMLA leave-takers. They
were intended to avoid opportunities for abuse and to make the path to
compliance easier to follow for employers. The only leave-takers who
would be affected by the types of changes that ought to be made in the
FMLA regulations are those who are not entitled in the first place to
the job-protected time off they are taking.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. No. It is clear that DOL's present FMLA regulations far
exceed the intent of Congress. Large numbers of employer and employee
groups have provided considerable feedback regarding the FMLA that can
and should be used to address the problems with administering leaves
under the statute. There is no need to waste time and money on yet
another study and allow further abuse and additional cost. The DOL's
1995 and 2000 studies were far out of step with what we at AAM have
experienced in attempting to administer the FMLA.
Question 4. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 4. AAM does not have compiled statistics on how often second
and third opinions or recertifications are used. Unfortunately,
particularly in the case of intermittent leaves, the safeguards
available to employers to curb abuse are largely illusory. As indicated
earlier, employers have no effective means of verifying that the reason
an employee is late for work or intermittently missing days of work is
because of the serious health condition for which they were certified
perhaps months ago. The recertification process is typically a waste of
time and money because the employer cannot challenge the
recertification through second and third opinions under the DOL's
current regulations. Employers also cannot seek medical excuses that
verify the need for time off. What typically occurs is that an employee
calls in and states that he or she needs to take an FMLA day because of
a headache. Unless we stumble upon the employee at the golf course or
at a softball game, AAM cannot effectively verify the employee's need
for intermittent time off on that particular day. Even when we do find
instances with the appearance of abuse, employees may still claim they
were suffering from a serious health condition at the time based on the
regulations liberal definitions of a serious health condition. Given
the burden, expense, and litigation risk that is posed by challenging
these call-ins (i.e. re-certifications), and the fact that such
challenges are largely ineffective, AAM's hands are tied if the company
suspects that an employee is abusing his or her leave rights.
Question 5. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA as an employer? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 5. There is no need for additional employee education. The
FMLA posting requirements coupled with aggressive informational and
coaching campaigns by unions have made most employees at companies like
AAM well aware of their rights and the loopholes available under the
FMLA. At AAM, the UAW has educated the hourly workforce on the FMLA.
Unfortunately, the dissemination of this information has also led to
considerable abuse, as employees have regularly used FMLA leave as an
excuse for casual absenteeism under AAM's jointly agreed upon and
administered union/management attendance program.
The DOL should simplify the regulations in accordance with
Congress' legislative intent when Congress enacted the FMLA. It is
astonishing that the FMLA regulations are considerably longer and more
confusing than the regulations administering the Americans with
Disabilities Act (ADA). The DOL must do a better job of coordinating
those regulations that also impact rights under the ADA and State
workers' compensation statutes. In most instances, the DOL leaves it to
the employer to figure out which regulations (FMLA, ADA or workers'
compensation) provide the greatest benefit to employees and to then
apply the regulation that provides the greatest benefit. If the manager
is wrong, the manager could be held personally liable under the FMLA.
The DOL needs to anticipate more of those scenarios in which potential
conflicts between statutes can occur and advise employers what to do.
Response to Questions of Senator Enzi by Sandy Boyd
Question 1. In its March 30, 1993 Comments submitted to the DOL,
NAM stated the following:
``Serious Health Condition should be interpreted as a disabling
condition when medical leave is taken for an employee's own illness,
and as requiring an absence of no less than 2 weeks. Any truly serious
condition would likely require at least 2 weeks anyway.''
At the Senate Roundtable, you denied taking a position on the
required length of absence qualifying an employee for FMLA leave. Has
NAM changed its position on the correct eligibility requirements? If
so, what specific changes does NAM propose? Please provide statistical
evidence that your proposals improve the regulations without harming
FMLA-leave takers under the current regulations.
Answer 1. After the FMLA was passed in 1993, DOL issued proposed
regulations for notice and comment. The regulations were finalized in
1995 and since that time employers subject to the FMLA have been
covered by those regulations which define seven different ways
(inpatient care and continuing treatment) in which an individual can
qualify for having a serious health condition. Manufacturers continue
to be concerned with the broad definition of serious health condition
as defined by the regulations and expanded by wage and hour opinion
letters. Our concerns, post-final regulation, for the past decade, have
focused on the fact that ``serious'' no longer means ``serious'' and
that even colds, flu and hang nails qualify for FMLA protection.
Question 2. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 2. The vast majority of panelist agreed that the FMLA has
worked well with respect to the ``family'' portion of the FMLA. There
was much less agreement on the ``medical'' leave portion, especially
for employees' own absences. Instead, a variety of panelists discussed
the problems with the overly broad definition of serious health
condition, the use of intermittent leave in small increments for
unscheduled absences and the difficulty in managing absences once FMLA
protection is invoked. A number of witnesses discussed the disruption,
cost, loss of productivity and impact on employee morale when fellow
employees use the FMLA improperly. I am confident that relatively
modest changes to the FMLA regulations could provide employees with the
protections to which they are entitled while allowing employers to
better manage their workplaces.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. Research on this subject should be conducted on a regular
basis and additional research is always useful. However, there is
already a body of research available (not to mention the fact that the
Supreme Court has struck down a portion of the FMLA regulation and
other circuit courts have conflicting views on other portions of the
rule) that supports DOL moving forward with a notice and comment
rulemaking. The call for additional research should not be used as a
way to avoid or delay DOL from beginning a rulemaking.
Response to Questions of Senator Kennedy by Jeff Payne
Question 1. Assuming that no employer would want a sick employee
handling patients, how would you propose the regulations address
concerns about under-staffing while simultaneously protecting employees
with chronic serious health conditions? How do you handle under-
staffing that occurs when employees have minor illnesses?
Answer 1. The healthcare environment is radically different than
when FMLA was first promulgated 12 years ago. Manpower shortages facing
healthcare today did not exist in 1993. Those shortages will, by all
estimates, continue to exist and indeed be exacerbated for the
remainder of this decade and beyond. Today's reality: finding capable,
qualified staff is difficult and results in many unfilled positions.
When you couple open positions with an employee's chronic absenteeism,
you create intolerable stresses on a patient care unit.
A hospital's first priority is to insure the safety of the patient
is not compromised. The ability to successfully deal with chronic
absenteeism is essential to that goal. In non-FMLA instances where an
employee has a poor attendance record, the attendance record in
question is carefully scrutinized and dealt with through disciplinary
policies and procedures where appropriate. Most hospitals use a ``no
fault'' attendance policy--e.g. regardless of why any absence occurs,
the absences are counted and compared against the policy standard.
Chronic intermittent absences resulting from approved FMLA leave,
however, can only be addressed through attempting to cover the absence
with temporary staff or from an in-house float pool. Using temporary
staffing replacements for daily absences is challenging and expensive.
Often called ``per diems'', these premium-priced replacement employees
are also themselves in short supply, and therefore not a realistic
option on which a hospital can depend. In addition to ``per diems''
hospitals often rely on longer term temporary workers. Many hospitals
will pay premium bonus dollars (separate and apart from overtime pay)
to employees who agree to work over, or who work in a unit where
chronic openings exist.
These ``travelers'' are also expensive, and require significant
lead time and complex competency assessments before they are allowed to
work. Travelers, together with per diem nurses and bonus pay can
quickly drive up healthcare costs. Eventually the patient shares in
paying those additional costs incurred by the hospital.
Another option used by hospital is ``in-house float pools''--groups
of nurses who are assigned daily to cover openings throughout the
hospital. Creating an in-house float pool is also difficult because of
chronic staff shortages. In sporting terminology, in many cases, the
bench with available replacement players is virtually non-existent.
It's not just a nursing issue. One hospital I know reports that
fully 75 percent of their staff in their Respiratory and Environmental
Services department is FMLA certified. That hospital is experiencing
well over 100 percent occupancy of their beds, and so support
personnel, like Environmental Services are absolutely crucial. Chronic
absences from intermittent leaves impact those department's ability to
provide vital support services.
Hospitals need maximum flexibility to respond to chronic
intermittent absenteeism in order to provide safe and effective patient
care.
Question 2. The majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in the
vast majority of situations. Do you agree that regulatory changes
should not be made that would negatively affect significant numbers of
FMLA leave-takers?
Answer 2. We support in general the FMLA law. As mentioned before,
in the healthcare arena the FMLA provisions in most cases simply
codified existing hospital leave practices. FMLA's continuous leave
provisions, while a challenge to staffing, can be managed and planned.
However, the intermittent leave aspects create problems--the no-notice
absences, as mentioned in other statements, wreak havoc with staff
scheduling. Where I work, our experience has been that about 45 percent
of all of our FMLA leaves of absences are intermittent. (Another ASHHRA
board member reports her hospital's intermittent percentage is at 65
percent!). Our labor attorney reports that her billing activity shows
fully 40 percent of her time with us is spent in dealing with FMLA
issues. The intermittent leave provisions need to be reviewed.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. Yes.
Question 4. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 4. As with most hospitals, my organization strives to
balance the employee and employer's rights, and uses most of the
safeguards available. However, the law still contains enough ambiguous
language to cause significant frustration.
For example, an employee's failure to produce required/requested
documentation within the 15 day window stipulated by the law does not
have clear repercussions. Rather, the regulations on that point are
vague. Consequently, we feel we have no choice but to give multiple 15
day extensions. In that instance, clear and unambiguous language should
be inserted stating a failure to produce documentation within the time
limit can result in the intermittent leave not being approved.
Like most hospitals, my organization uses medical re-certifications
as a significant tool. Almost half (45 percent) of the leaves of
absence we process are of the intermittent variety, and that is where
we most often request re-certifications. Below is a summary of the
variety of ways my organization utilizes FMLA safeguards. These methods
are similar to other facilities and hospitals:
Re-certifications--The requirement for a re-certification
is dependent on what the physician has indicated on the original
certification document.
Often the physician does not indicate how long a leave is
anticipated for the particular ailment. Based on our experience, we
have created a list of common diagnoses and ailments, and associate
with each of our own guidelines for determining the length of the leave
of absence as well as requiring re-certifications.
In other words, for some medical situations we state the
absence is approved for 90 days, and requires a recertification every
30 days during that time, while others we state the absence is approved
for 45 days with no requirement for a recertification and for yet
others we may say the absence is an indefinite intermittent situation
which requires re-certifications every 6 months.
We as a matter of practice do no ask for second opinions,
even though we know it is an option, because of the administrative
hassle and the cost involved. We are concerned with an equal
application of the law, and feel if we ask for a second opinion for one
employee, we'd need to do that as a matter of routine for all employees
similarly situated, and that would be very difficult and costly to
administer.
If a manager suspects abuse, typically we:
Meet with the manager to compare records (departmental
versus benefits). We analyze the absences for suspicious or unusual
patterns or frequency.
Contact our labor attorney and review the data.
Ask for a re-certification if appropriate.
Sometimes we sponsor departmental meetings to discuss FMLA
issues and procedures.
The fact that intermittent leave can be taken in small increments
of time has compounded the difficult--in accurately determining how
much of an employee's FMLA time has been used. In theory this should
help hospitals safeguard against an employee taking more FMLA than
allowed--and yet the sheer difficulty in tracking intermittent leaves
in such small increments can render it virtually useless as a
safeguard.
Question 5. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA? How do you educate your workforce
about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 5. In almost all cases, hospitals have become FMLA experts
out of necessity. The complexity of the law and the significant impact
created by the intermittent leave portion has caused us to dig deeply
into the nuances and subtleties of the law to determine our
responsibilities and our exposure. Most hospitals rely on retained
counsel for guidance, and those firms, too, have become FMLA experts.
Despite our knowledge, the law continues to confuse due to its
utter complexity. My organization is as sophisticated and educated as
any on FMLA issues. Our four full-time benefit counselors are each in
their own right FMLA experts. Yet even still, for example, we struggle
with process issues; who needs to do and say what, when between the
employee, the manager and the benefit counselor to insure that we are
in compliance with the law, but safeguarding against abuse.
As with most hospitals, we educate our management and staff as best
we know how. FMLA issues are included in management training sessions
and seminars. Bi-weekly and quarterly newsletters run recurring
articles about the FMLA process. Employees receive detailed packets of
instructions once they have applied for FMLA through their benefit
counselor.
However, employees also receive information from outside the
organization from a variety of sources, and not all of the information
is accurate. For example, some employees continue to labor under the
impression they are the ones who make the determination as to whether
or not their situation meets FMLA guidelines.
And despite how much time we have spent educating our management
team and our employees, we continue to see and hear misperceptions and
misunderstandings about the basic law, especially when it comes to
issues surrounding intermittent leave. For example: a large hospital in
Ohio reported recently that 400 of the total 1,200 nurses on staff had
received information and had actually gotten medical certification with
the understanding that FMLA could be used to avoid overtime. It took a
lot of time and energy to work through and reeducate the staff about
this misperception.
What can help? Clear and concise language that gives clear
interpretations from the Department of Labor (not interpretations from
third-party vendors).
Response to Questions of Senator Enzi by Marie Alexander
Good morning, Chairman Enzi, Senator Kennedy, and members of the
committee. My name is Marie Alexander. I am the President and CEO of
Quova, Inc., a small business in the geolocation technology industry
based in the Silicon Valley. I have 55 employees. They run the gamut
from high paid executives to those who are entry-level.
Question 1. What has been your own experience, or that of your
company, with the FMLA and its regulations?
Answer 1. I have employed workers in companies ranging from 25 to
10,000 employees, in industries ranging from mental health to
entertainment to high tech. My focus over the last 20 years has been on
building small entrepreneurial companies into large corporations. In my
experience as an entrepreneur, a business owner, and an employer of
long-standing, the FMLA is good for business.
If I have an employee with a child or family member with a serious
illness, and this employee is unable to be with that family member when
needed, they are distracted at work and their productivity suffers. In
contrast, if they are allowed time to take care of that family member,
their productivity increases. They know what they have to accomplish
and--sometimes by working at home, or working extra hours, or skipping
lunch, or working exceptionally hard--they get it done. And in the end
I have an extremely loyal employee.
If I have a seriously ill employee who comes to work, that worker's
productivity suffers. In addition, a sick worker often spreads illness
to other workers which in turn leads to further loss in productivity.
Seriously ill employees cannot be as productive as they would otherwise
be when in good health. When employees are ill at work, I am paying for
lower output; this results in a direct cost in wages. I could of course
fire a sick employee. If I were to do so, however, I would have
replacement costs: the severance pay for the fired employee, the
downtime from the lack of someone in the position, the time spent
recruiting and hiring a new employee, the recruiting fees, the training
fees, and the lower productivity of a newly hired employee. Allowing an
employee to either take the leave they need, whether extended or
intermittent, is far less costly to my business.
If I have someone who abuses my policies or policies established by
law, like the FMLA, I have the ability to terminate their employment. I
may have the expense of documenting and proving abuse, but that cost is
far less than the cost that comes with allowing someone who is abusing
my trust and my policies to stay within my employ. The FMLA allows for
termination. It is not designed to protect those who abuse policies; it
is designed for those who are productive workers within my employ.
Moreover, when an employee asserts a right to FMLA and I believe they
do not qualify for it, the law provides a number of employer safeguards
in these situations. For example, I can require a doctor's
certificate--actually, three certificates, from three different
doctors, if I choose.
If I create an environment in which my employees can balance their
work/life needs, then I get exactly out of the relationship exactly
what I put into the relationship: loyalty and commitment. This loyalty
exists not only between the employee and the company, but also among
employees. Work/family policies like the FMLA engender an environment
of respect and support between employer and employee, and among
employees. When employees see that you, as an employer, are supportive
of them, they mirror that same behavior back. If they see that you will
not tolerate abuse, then they will not abuse.
Loyal employees plan and work with you to ensure that the needs of
your business are being met. Many years ago, I was a manager at an
amusement park. One Friday afternoon, an employee reporting to me
arrived as expected and performed his job, completing ``set up'' so
that we could open the park that evening. His set up included putting
bags in the trash cans, cleaning up excess water on the streets,
putting new sand in the cigarette butt cans--none of this actually
critical to the success of an amusement park. Nonetheless, he had
responsibilities and he made sure he met them. Once his tasks were
completed, but before his shift was over, he called me and explained
that he needed to leave. ``My father is a police officer,'' he
explained, ``and he was shot this morning.'' I told him that he could
of course have the time off, and that I would have someone cover for
him. When I told him that I hoped his father would be o.k., his
response was ``I guess I should have said my father was a police
officer; he died this morning.'' Most employees are committed to their
jobs and take their commitments seriously.
Good managers and employers have few problems with unnecessary
unscheduled leaves of absence. The positive employee morale that is
associated with FMLA and other family leave benefits has made absence
control a mutual responsibility. Employees are fully aware of the
benefits with which you provide them and appreciate the attention to
their needs that go with these benefits, and in return, they don't want
to put you, the employer, in a jam with a last-minute absence.
I would like to share another story with you. I recently had an
employee take maternity leave. After using up all sick and paid
vacation leave, the young woman took 80 unpaid days of leave (16
weeks). (She received pay for 12 of these weeks through the California
State Disability Insurance (SDI) and California's Family Paid Leave
Insurance (FPL) programs). I hired a temporary replacement during her
leave; this employee turned out to be terrific. When the young woman
returned to work, I had two people that were trained for that
position--a wonderful benefit to my business. I was able to take on the
temporary worker, someone who now already had the skills for the job,
as a permanent employee. With very little planning, we were able to
turn an employee's leave into something positive for two employees and
for the company as a whole. Ultimately there was no negative financial
impact to Quova. On the contrary, we came out ahead.
On any given day, I anticipate that some of my employees will need
time away from their jobs--for illness and for time to care for their
family. As an employer, I plan and take this into account and build it
in to my business model. Illness or the need to care for a ill family
member is inevitable at different points during a workers' life and
will cause people to miss work. Yes, there may in some instances be a
loss in productivity which relates back to these illnesses, but medical
leave and the FMLA are not the root cause of the productivity issue,
illness is. FMLA is merely the mechanism through which employees are
protected. The FMLA provides basic provisions for employers to meet
employees' needs.
Questions 2 & 3. Are there ways in which the implementation of the
act might be improved? Given the importance of maintaining a work/life
balance for all working Americans, what do you believe are the most
reasonable options to achieve the desired balance?
Answers 2 & 3. First, I would like to address the changes proposed
by some groups to the regulations on intermittent leave and serious
health condition.
I understand that some groups are proposing a change to the FMLA
that would require employees who need intermittent leave to take that
leave in half-day increments rather than shorter increments now
specified in the regulations. This proposal would actually hurt
business by reducing productivity. By allowing the increments of FMLA
to be as short as needed by the employee the law limits the leave's
impact on the company. If I must require an employee needing
intermittent leave to take a minimum of 4 hours leave, when that
employee needs to take only an hour away from their job, this will
negatively affect my business. No smart business owner would support
this proposed change.
I also understand that some groups are proposing a change to the
FMLA's definition of serious health condition which would, in the end,
exclude many seriously ill workers from coverage under the law. I find
this proposal quite troubling. To succeed, businesses need loyal,
productive employees. This means providing employees with the leave
they need to address serious illnesses they or their families face.
Part of the argument for this change seems to be that guidelines on
serious health condition are unclear and that employers feel that this
leads to some employees unfairly receiving FMLA leave. In my
experience, the FMLA provides clear guidance on how to determine
whether your employee has a serious health condition. It also provides
satisfactory employer safeguards instances when disagreements arise.
For example, I can require that an employee provide a medical
certificate from a doctor that they meet the conditions of the
definition. I am not a doctor; if a doctor reports that my employee has
a serious chronic condition, I will work with the doctor's assessment
and provide my employee with the necessary leave. I will plan as best
as I can. And if it changes dramatically and I suspect abuse, I have
other protections under the law. As an employer, I see no benefit to my
business in a narrowing of the definition of serious health condition.
On the contrary, doing so will only limit the many benefits of FMLA
leave to employees, families, and employers.
IMPROVING THE FMLA
The FMLA could be improved if employers were encouraged to share
stories of success, ask questions, and learn the basics about the FMLA.
An effort to educate employers about their employer protections and
employees about their rights would be an improvement. There is a great
deal of ignorance which exists on the part of employees as well as
employers surrounding the FMLA. Before any changes are made, perhaps
more people should know what it really is. Proposals thus far indicate
that employers and employees need to be educated about the law, not
that the law needs to be fixed.
Research should also be conducted to identify viable support
systems for small companies so that they can more successfully provide
work/life benefits to their employees while maintaining business
efficiency. One example of such a support system which would be
reasonably inexpensive is a system of affiliate networks for matching
temporary employees with companies affected by an increased need for
employee absence related to work/life balance issues.
The FMLA could be improved by lowering the threshold of employees
required for an employer to be FMLA eligible. I think it is possible
for companies that are smaller than the defined requirements to provide
this important benefit to employees. However, there are small companies
for whom this could cause a detrimental effect. Therefore, it would be
important to provide a provision when the size is decreased through
which a company could file for exemption--but only when they could
adequately prove a negative impact on the company. With this said, I do
believe that most employers will experience no negative impact.
The FMLA could be improved by including partial wage replacement
for employees on leave. Currently California employees receive partial
income via short-term disability and family leave insurance pools. Paid
leave is incredibly important to the economic stability of my
workforce. Paid leave insurance pools like California's help take the
burden of individual employers and are inexpensive for business owners.
We need more policies like California's short-term disability and paid
family leave.
Response to Questions of Senator Enzi by Susan O'Flaherty
Question 1. At the Roundtable, you stated that the FMLA has worked
well in 95 percent of situations where employees need to take FMLA
leave, but that 5 percent of employees abuse it. Is there any
statistical evidence for these figures, or were you simply using them
to make the point that the FMLA is appropriately utilized in the vast
majority of situations?
Answer 1. The percentage that I used was to make the point that
FMLA is appropriately utilized in the majority of situations. It may be
a smaller percentage of cases, but I think because there is a
significant issue being brought forward by employers of all types of
business and of all sizes, it should be addressed. It was apparent that
unscheduled, intermittent leave and the loose definition of serious
health condition are the parts of the regulations that cause
administrative difficulties for employers and morale problems for other
employees.
Question 2. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 2. At the Roundtable it was clearly demonstrated that the
majority of problems with FMLA are around the loose definition of
serious health condition and the use of unscheduled intermittent FMLA.
Both of these problems need regulatory clarification. Changes should be
made to clearly define and outline what is proper usage and what can be
done to limit abuse. The abuse is problematic for employers, but also
can have a negative effect on the other employees who work with someone
who abuses it. These changes and alterations should not affect those
who use it properly. Clear definitions and guidelines are never a
detriment, but an enhancement.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. I would support regulatory clarifications of the
definition of serious health condition and the use of unscheduled
intermittent FMLA leave. In addition to these needed regulatory
clarifications, I would support research that should include not just
analysts who look at studies and reports, but include people who
actually administer and work with the FMLA. People who actually
understand it from an application and administrative viewpoint.
Question 4. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 4. We do not have many problems or concerns with continuous
FMLA leaves. The biggest problem we have in this respect is
falsification of a document. On average we have one a month that has
been altered. We do go to the provider and they will work with us to
say that no one from their office filled out the forms. Second and
third opinions work the best with continuous FMLA leaves, if you have
issues that are of concern. We do a small percentage of second
opinions. I have not seen a third opinion in the recent past. For
intermittent leave, second and third opinions are not as useful. Since
it is an intermittent or chronic condition, the employee is not usually
ill when they attend the second/third opinion. The exam is based purely
on subjective history from the employee or first physician.
Recertification is what we use for possible problems with intermittent
leave. What we hear numerous times from employees as we are
recertifying is the following statement:, ``go ahead and recertify, my
doctor will approve anything that I want.'' To investigate alleged
abuse, we require the managers to give the FMLA unit the pattern they
suspect of abuse. We tell them it cannot be just a hunch or one
individual day that just happened to occur. The managers have to give
the FMLA unit the days of the week and the dates and hours used over a
30-day period. This way we can look at the information we had on
approval to see if it truly is an alleged abuse or just a manager's
reaction. If we determine that it appears inappropriate, we begin the
recertification process. In the case of those employees who request a
vacation day and are turned down by their manager, and then on the day
in question call in and take an FMLA day we try another stance. On
these, since there probably is no lingering pattern at that time, we
cannot deny the day as who is to say they happen to have their medical
problem suddenly incapacitate them on that exact date. We do, however,
speak to the employee afterwards and say you had the FMLA day as
requested. We tell them that we do understand and we try to give the
employee the benefit of the doubt, however, we let them know that we
are aware that they had earlier requested a vacation day that could not
be granted on that day. We explain to them appropriate and
inappropriate use of FMLA.
Question 5. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA as an employer? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 5. I think education is valuable. We frequently provide
education to both employees and managers. Both employees and managers
call the FMLA unit for questions and assistance. I think that the
medical community could also use education regarding FMLA. Some
physicians and their offices lack a true understanding of their part in
FMLA and how it affects their patients and their patient's jobs. We
have had physicians' offices refuse to fill out paperwork for
employees. We have had to call the provider and discuss FMLA with them
to get them to fill it out. We also have providers that let the
employees themselves fill out the medical paperwork and then they just
sign it. We have a solid understanding of our rights and
responsibilities under FMLA. We constantly work with our human resource
legal department for updates regarding any issues on FMLA, and they
provide training for the staff. The staff that administers the FMLA
determinations is sent to trainings and seminars to keep current. Our
employees have the standard notifications, but we are also here to help
them when they need assistance in dealing with different aspects of
FMLA.
Besides speaking as an ``employer'', I am also an employee myself.
I am a nurse, I am a mother of a child with asthma, and I have an
elderly mother who is a cancer survivor. I am attuned to the necessity
of FMLA, but I also see people who use FMLA as just a way of getting an
extra 12 weeks off a year. We try to assist those who are in need of
FMLA get the protection they deserve. We also try to manage and educate
those who allegedly use it inappropriately, as this negatively impacts
on those who do need and use it appropriately.
Response to Questions of Senator Kennedy by Cheryl Barbanel
Question 1. Assuming that no employer would want a sick employee
handling patients, how would you address concerns about under-staffing
while simultaneously protecting employees with chronic serious health
conditions? How do you handle under-staffing that occurs when employees
have minor illnesses?
Answer 1. Understaffing as a result of FMLA leave for a chronic
medical condition can be staffed by accounting for additional necessary
staff if knowing that the person will be out intermittently or for a
continuous period of time. Intermittent leave for health conditions is
more difficult to staff for especially when taken without notice. This
often leaves the remaining staff with additional responsibilities. In
some highly specialized areas we are sometimes able to get additional
coverage at high prices with temporary employment agencies specializing
in highly trained individuals.
Question 2. During the Roundtable, you stated that there is
``employee, employer, and doctor abuse.'' Please explain what you mean
when you say that there is ``employer abuse'' of FMLA. Please also cite
examples of this abuse and to what extent the regulations provided
sufficient remedies for addressing it.
Answer 2. I am representing the American College of Occupational &
Environmental Medicine. In that role I have learned from my colleagues
that early on after the introduction of the FMLA rule some employers
had denied claims around intermittent leave for chronic medical
conditions, which has been remedied at this time.
Employers would be helped by a better definition of what defines a
serious medical condition. In certain employees as one condition is
resolved another one emerges to take its place resulting a shortened
work year on a continuous basis. It is also very difficult to track
intermittent leave especially in the short intervals allowed.
Question 3. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in the
vast majority of situations. Do you agree that regulatory changes
should not be made that would negatively affect significant numbers of
FMLA leave-takers?
Answer 3. When FMLA works well, I am usually not involved in the
cases. The area that needs improvement is intermittent leave for minor
medical conditions that are temporary, but often go on indefinitely. I
think that changes can be made that will allow employers to intervene
in managing illness as they are allowed to do in workers' compensation
by directing care in some instances so that the employee is directed to
more effective care. Right now the employer is left on the outside with
virtually no ability to direct care. In many instances the primary care
provider is being directed by the patient to write the excuse note and
at risk for losing the patient and capitation payment if he/she does
not do it.
We know from many studies the important benefits of work. We know
that the longer someone is out of work that the less likely they are to
return and be permanently disabled. By the time someone is out of work
for 3 months they have only a 50 percent chance of ever returning to
the job. Those out of work for 12 months have only a 1-2 percent chance
of ever returning to work. Patients can begin developing a disabled
mind set after as little as 2-4 weeks off and this seems to be more
related to conditions that are diagnosed by the patient reporting
rather than injuries that have a defined course of recovery.
Fewer than 10 percent of work-related injuries require a person to
take more than a couple of days off from work according to a survey of
occupational physicians. This contrasts with the 24 percent of injured
workers who receive temporary disability benefits. This suggests that
up to 80 percent of temporary medical leave is unnecessary.
One study on workers compensation claims showed that 25 percent of
workers' compensation claims accounted for 97 percent of all costs. The
high cost claims are not all severe injuries, but are musculoskeletal
claims, often minor, but end up with prolonged absence from work
without objective findings.
The term delayed return to work is applied to patients with
prolonged recovery that is disproportionate to objective clinical
findings. These patients suffer physical, emotional, and financial
hardship as a result of their absence from work. Many factors that
appear to be predictive of recovery are non--biologic. It appears that
the interaction of the worker in the work environment such as job
satisfaction, and perceived stress, is key. There are a number of
psychological factors including personality traits, perceptions of the
social environment, and attitudes or beliefs about illness, as well as
history of psychiatric diagnoses and history of sexual abuse that have
been correlated with delayed recovery. Underlying depression is often
an important etiologic factor in delayed recovery.
Delayed recovery usually involves chronic pain, although other
subjective symptoms such as fatigue or paresthesias may also occur.
Management may be difficult.
Current evidence suggests that understanding delayed recovery,
chronic pain, and disability requires a biopsychosocial model, which
reflects a complex interaction between physical, emotional, social and
economic variables.
Social and psychological forces can counteract the desire to get
better and reinforce the disabled role. An individual is likely to
amplify and cling to a symptom (a behavior known as somatization) if
the disabled role results in secondary gain. Three types of secondary
gain occur: sympathy, attention, and support (including financial);
being excused from responsibilities, obligations, duties, challenges,
and ability to influence important people by virtue of their acceptance
of the individual as sick/disabled. This is amplified by any system
that awards benefits contingent on proving disability.
Somatization is a common reflection of emotional distress and
present with a preoccupation with an unconscious exaggeration of
physical symptoms. Somatization explains much of what physicians name
``non-specific pain'' in the low back, neck, hand and chest. It is
estimated that 50-70 percent of patients with a psychiatric disorder
present with somatic (physical) symptoms that obscure the diagnosis
(most commonly depression) from the physician's point of view.
Differentiating malingering from a patient with symptom
magnification and chronic illness behavior is difficult and both have
inconsistency between history, physical examination and performance of
standardized tasks.
Question 4. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 4. Yes
Question 5. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 5. The only case we were successful in was a case where the
employee asked for leave for a death of the same person twice. There
was no second opinion in the case. At my other employer only one case
is recalled that a second opinion was requested in the last 10 years.
It is difficult in assessing FMLA cases because the employer does not
have the ability to have full information regarding the alleged medical
condition claimed. In most cases the employers will not know what the
diagnosed medical condition is and even if they did there is no
definition of a serious medical condition or anyway to manage the
condition as is allowed with workers' compensation claims. Employers
are reluctant to investigate claims due to this lack of information.
The path for refuting an FMLA claim is onerous, expensive and risky
both in terms of its effect on the employee-employer relationship and
litigating in the absence of full information.
Once a claim is litigated the resolution is usually delayed and
during this time an employee is not motivated to return to work because
of concerns that working will adversely affect the claim. The employee
is evaluated by multiple physicians who offer a wide variety of
diagnostic tests, which tends to reinforce the employee's belief that
there is something wrong. There is a tendency for the employees to
amplify their subjective complaints when they view the physician as
having administrative power to determine their benefits. The
observation that patients often recover quickly after their case is
settled provides further evidence that current compensation laws foster
disability.
One of the major areas of abuse is claims of stress. Doctors cannot
explain why a person needs to take time off from work due to stress.
There is no scientific basis in a stress claim to suggest that time off
is effective treatment. If there are work related issues that are the
cause of some of the stress, they tend not to get resolved as the
employer never gets direct information on the exact nature of the
claim.
Question 6. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA as an employer? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 6. There is sufficient employee and employer information
regarding FMLA, but there needs to be better definition as to what
constitutes a serious health condition for an employee or their family
members under FMLA and an opportunity for employers to direct medical
care in some instances. The law is a noble law in its intention, but it
needs to be tightened up to prevent malingerers from abusing the
system, and misdiagnosis and inappropriate treatments.
Treating physicians need education in return to work. Physicians
are often not trained in disability prevention and management. When
patients have chronic physical complaints physicians typically focus on
the physical complaints and ignore the non-medical factors that may be
fostering illness behavior. Ignoring the psychosocial determinants of
illness, the untrained provider prescribes more time off from work.
This common therapeutic pattern may actually prolong recovery and
reinforce the sick role. If treatment goals are focused on alleviation
of symptoms rather than on functional capacity, there is an increased
risk that the patient will begin a downward spiral from anger and
helplessness to depression and withdrawal, loss of identity, and
finally into the sick role and chronic disability.
Physicians need to:
1. Determine specific psychological and behavioral issues related
to the patient's pain behavior and disability.
2. Provide insight on aspects of the patient's history and current
situation with bearing on the delayed recovery.
3. Recommend appropriate treatment goals and interventions.
References
Letz, G, Christian JH, Tierman, SM: Disability Prevention &
Management. Current Occupational & Environmental Medicine, (3rd )
LaDou, J (ed.), Lange Medical Books/McGraw-Hill, 2004.
Response to Questions of Senator Kennedy by Laurie Dohnalek
Question 1. Assuming that no employer would want a sick employee
handling patients, how would you address concerns about under-staffing
while simultaneously protecting employees with chronic serious health
conditions? How do you handle under-staffing that occurs when employees
have minor illnesses?
Answer 1. In covering for short term illnesses of less than a \1/2\
day (i.e., Dr's appointments, etc.) many times the other members of the
staff absorb the additional work. Patient care is a priority, at times,
other tasks/accomplishments (i.e., Management documentation, etc.) are
postponed to meet the immediate need. To staff for intermittent, full
day absences, other staff will be asked to work additional shifts which
may include overtime shifts. Another option may be agency nurses or
utilizing staff from other departments/units if there is extra. Long
term absences may be covered by a ``traveling'' nurse with a contract
agreement. Most of these options carry the burden of increasing costs
and decreasing quality along with uncertainty. Given the nursing
shortage there is typically hours of administrative work to possibly
obtain the additional manpower needed to meet basic staffing
requirements.
Question 2. During the Senate Roundtable, you stated that nurses
require 6 months training to care for specialized patients. Do you
agree that FMLA helps retain trained and valuable employees?
Answer 2. Yes, I agree with that statement, but it does come with a
price. The other staff may get frustrated and this could lead to
turnover.
Question 3. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 3. I don't know who the significant number of FMLA leave-
takers are. If the significant numbers are intermittent FMLA leave-
takers than I feel that changes need to be made to the existing
regulations that will ease the employer's burden of accommodation.
Question 4. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 4. Yes, I would.
Question 5. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 5. We have all requests for medical FMLA reviewed by our
Employee Health Office. We do not routinely ask for second opinions but
Employee Health may ask the employees physician for a clarification on
a certain issue. If abuse were suspected we would ask for a second
opinion.
Question 6. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you, as an employer, have a solid understanding of your
rights and responsibilities under the FMLA? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 6. I would agree that education on FMLA is always
beneficial. As an employer we believe we have a good understanding of
our rights and responsibilities. Employee's rights are discussed at
orientation, in the Employee handbook and in our Human Resources Policy
Manual. We also have educational sessions directly and indirectly
related to FMLA for managers.
Response to Questions of Senator Kennedy by Janemarie Mulvey
Thank you Senator Kennedy for your questions regarding the
Employment Policy Foundation's recent study entitled ``The Costs and
Characteristics of Family and Medical Leave.'' My responses below are
intended to supplement my earlier oral and written testimony for the
FMLA Roundtable on June 23, 2005. Since some of the questions are
interrelated, I am addressing them together.
Questions 1 through 3. Relate to the size and statistical
significance of the sample and the relationship of EPF findings to
Department of Labor 2000 study.
Answers 1 through 3. EPF Response: The Employment Policy Foundation
FMLA survey was based on responses from 110 companies analyzing the
behavior of 500,000 workers. The intent of the EPF survey was to
develop preliminary data regarding the prevalence and duration of FMLA
leave especially with respect to unscheduled intermittent leave. This
information was intended to contribute to the current discussion
regarding potential changes to the FMLA regulations. Thus, we believe
our findings should be used to justify additional research and
discussion in this area.
The Department of Labor study estimated the prevalence, duration
and use of intermittent leave through a telephone survey of 2,558
workers. The key difference in these surveys was that we asked
employers the characteristics of their leave takers, rather than
general qualitative information about FMLA compliance. The 2000 DOL
Employee survey asked employees directly. Their survey represented
prevalence across a population and not for a given firm.
Interestingly, our findings regarding prevalence, duration and use
of intermittent leave are not substantially different from the 2000
study where comparable. In terms of duration, we asked for average (and
not median) leave duration for company and the DOL study captured
median duration. While these are not directly comparable, averages do
tend to exceed medians due to outliers. However, our prevalence numbers
are in fact lower which suggests we are underestimating, not
overestimating the extent of the FMLA leave. (See Table 1.) Thus, our
study possibly underestimates and not overestimates the costs of this
leave to employers.
Table 1: Comparison of EPF FMLA Findings with those from 2000 DOL Study
------------------------------------------------------------------------
EPF 2004 (Employer DOL 2000 (Employee
Survey) Survey)
------------------------------------------------------------------------
Prevalence of FMLA Leave........ 14.5.............. 16.5
Duration........................ Average 14.5 days. Median 10 days
Intermittent leave.............. 30% (< 5 days).... 27.8% (repeatedly
taking leave for
few hours or few
days)
20% (1day or less) ..................
------------------------------------------------------------------------
Questions 4 through 8. Relate to the estimate of costs of
replacement labor and productivity.
Answers 4 through 8. EPF Response: Our cost estimates include both
the direct costs of continuation of health benefits and net replacement
costs of labor. GAO and others recognize these costs as potential
direct costs. Nevertheless, economists often include indirect costs
such as those associated with lost productivity for workers who are not
replaced. We also include these lost productivity costs into our
estimates.
Our replacement cost represents the dollar difference between the
costs of hiring temporary labor (which costs more than regular full--
time employees because of administrative costs paid to staffing firms)
relative to the wage of the workers taking leave. This wage is based on
average wages by industry. This difference represents the replacement
cost. Thus, EPF's study does account for employers not paying a leave-
taker's wage (if the leave is unpaid).
Productivity measures are based on the economist's definition of
the ratio of output for a given industry divided by hours worked and
calculated for those workers who take leave. This data is derived by
industry using data from Bureau of Economic Analysis (BEA). While there
are studies showing that workers who come to work sick or preoccupied
cost employers in terms of lost productivity, it is illogical to
conclude that if they do not come to work the employer experiences a
gain in productivity (or productivity savings) because the employer
gains no additional output from them taking leave. In either case, the
employer still experiences lost productivity.
It is important to note that we do not account for possible
productivity differences that occur between replacement labor and
permanent workers. Studies show that temporary employees who are thrust
into a new environment are not as productive as permanent workers are,
who have had sufficient tenure and training from their employer.
In addition, EPF's cost estimates are conservative because they do
not include the administrative costs of complying with FMLA, which
could be rather steep. A recent WorldatWork survey found that most
organizations are spending between 30 minutes and 2 hours of
Administrative time per FMLA leave episode to provide notice, determine
eligibility, request and review documentation, and request a second
and/or third opinion. In 2002, EPF estimated an average annual
expenditure of $825,000 per employer, totaling $203 to $247 million for
the administrative costs of complying with FMLA.
Our costs also do not include the indirect economic or multiplier
effects that would account for the total effect of FMLA leave on the
Nation's economy. These effects could nearly double the provided cost
estimates.
Question 9. Asks how we account for workers who take leave for
serious health conditions regardless of FMLA coverage.
Answer 9. Our study only accounted for employees who took FMLA
Leave.
Question 10. Asks how we measured the cost of ``abuse.''
Answer 10. Abuse occurs when individuals use FMLA leave for health
conditions that are not ``serious,'' as that term is defined in the
statute and the regulations. This leave is frequent in nature, short-
term and unscheduled. My written testimony does not estimate the cost
of abuse. During my oral testimony, I stated that anecdotal evidence
suggests that much of the unscheduled absences are abuse. The EPF study
shows that 27 percent of FMLA leave are for chronic health conditions
(that may or may not be ``serious.'') Further, the EPF study measures
the prevalence of unscheduled absences. Most notably, it found that
over 50 percent of leave takers did not give notice a day before leave
is taken. This lack of notice makes it difficult for employers to
adjust their employees' work schedules to accommodate the leave taker's
schedule.
The $21 billion cost necessarily includes any instances of abuse,
because it includes all FMLA leave taken.
Thank you for inviting me to participate in this hearing.
Response to Questions of Senator Kennedy by Robert Prybutok
Question 1. You proposed raising the eligibility requirements above
the current level of 50 employees. Since the passage of the FMLA, some
jurisdictions, such as Oregon (25 employees) and Washington, DC (20
employees), have lowered their eligibility requirements and have not
reported any significant problems with those levels. Why do you support
a change in the eligibility requirements, and what statistical evidence
do you have that such a change is needed?
Answer 1. As a small company we are flexible in administering
employee leave requirements and would do what is required regardless of
FMLA legislation, as we had done prior to FMLA impacting our business.
The primary reason to change eligibility requirements from 50 to 100 or
more employees is to remove the administrative burden associated with
FMLA legislative requirements. A more significant problem with FMLA
documentation is with intermittent leave and documenting intermittent
leave. We do not have statistical evidence available to support this
change however our experience is that small companies do not have HR
duties assigned to a dedicated individual. Typically, our experience is
this does not occur until companies approach or exceed 100 employees.
The exposure that small companies face is with potential legal
suits over FMLA that cannot be adequately defended without detailed
documentation.
A compromise may be to have FMLA apply to small companies but only
burden larger companies with the administrative record keeping
requirements.
Question 2. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 2. This question cannot be answered without an understanding
of the statistical history of who are the significant numbers of FMLA
leave takers. It appears from comments at the conference, intermittent
leave presents the most difficult management and administrative burden
to all companies. It appears from comments that a compromise on
intermittent leave would be to allow leave to be taken for some
reasonable ``increment'' of work that would be defined by the company,
independent of the smallest unit of time captured by a companies
payroll system. There also appears to be issues with employees who call
out in the morning to care for dependents or themselves. It is unclear
what documentation is required under FMLA for these situations.
Additional documentation and a modification of the work interval for
intermittent leave could be defined as a ``negative impact'' to FMLA
leave takers but not necessarily negative to the FMLA program or its
administration.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. We would support a comprehensive and independent research
on FMLA that would be utilizing current data.
Question 4. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 4. We have not experienced excessive abuse of FMLA. There
has been no need to request second opinions, third opinions or re-
certifications. Prior problems with the FMLA involved employees not
returning to work. The company has created guidelines for requesting
leave. Employees are required to provide 30 days notice for leave such
as birth, or planned medical treatment. A leave grant for medical
conditions must be supported by written medical evaluation and
submitted to the human resources representative.
Question 5. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA as an employer? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 5. FMLA, as the law is written, is very difficult to
understand for the average businessperson. English interpretation with
case examples is a practical approach to our understanding of the law.
Although we feel we understand the law, when we are in doubt about
certain aspects we contact legal counsel. We provide information about
FMLA to our employees during our new employee orientation. We also
provide a company information manual that includes information on FMLA
and we post required Federal posters that outline the rights of
employees. A brief orientation coupled with the brevity of information
posted does not ensure employees understand both their rights and
responsibilities under FMLA. Typically when a FMLA issue arises re-
education and clarification is required.
Response to Questions of Senator Kennedy by Jamie Marsden
Question 1. You commented on the difficulty that physicians have
with the DOL Medical Certification Form. What specific difficulties
have you observed? What improvements to the forms would you propose?
Answer 1. I would clarify in stating that the process to obtain
timely certification regarding an employee's serious health condition
from healthcare providers is difficult. The DOL certification form
itself is several pages long and is often submitted incomplete to the
employer. In these circumstances, it often lacks sufficient information
regarding the employee's condition and need for leave. If the
healthcare provider would complete the certification form legibly and
accurately, it would be possible for employers and human resource
professionals to confidently grant employees' leave requests.
In addition, the form itself should be updated and revised as it is
outdated. I would suggest that the form be available on-line for the
healthcare provider to complete all required fields. It could then be
printed and signed so that the employee could submit the form to the HR
department.
Question 2. The vast majority of panelists at the Senate Roundtable
agreed that the FMLA has been largely successful and has worked in
almost all situations. Do you agree that regulatory changes should not
be made that would negatively affect significant numbers of FMLA leave-
takers?
Answer 2. The Family and Medical Leave Act is an important law that
provides vital protections. I agree that the family leave provisions of
the regulations have worked very well and have benefited millions of
employees and their families nationwide. The medical leave provisions
of the regulations tell a different story. These regulations are
confusing and easily misunderstood. In addition, there are two
conflicting DOL Wage and Hour Opinion Letters (1995 and 1996) and
nearly 70 judicial decisions that have questioned the validity of the
regulations. This makes clear that it is necessary to review and
clarify the existing framework so that medical leave achieves the same
promise that family leave already has.
Question 3. Would you support comprehensive, methodologically
rigorous, independent research on the FMLA that would update the 1995
and 2000 DOL studies?
Answer 3. The DOL survey should be updated in an unbiased manner,
yet should not be used as a tool to further delay the rulemaking
process. The DOL has more than enough evidence, anecdotal and
otherwise, to execute a rulemaking. Since 1995, nine Congressional
hearings have provided clear evidence that a review of the regulations
is necessary. In addition, the 2002 Supreme Court case in Ragsdale v.
Wolverine Worldwide Inc. invalidated the penalty provision found in
Section 825.700(a) of the regulations.
Question 4. Please discuss your use of existing FMLA employer
safeguards. In what percentage of cases do you request second opinions,
third opinions, and re-certifications? Please also explain the
procedures you use to investigate alleged employee abuse of FMLA.
Answer 4. Second opinions provide limited assurance that the
employee is using their leave for its intended purpose. There have been
times where I've sought a second opinion when concerns of abuse arise.
However, our organization very rarely seeks second opinions. On
average, I believe it is a very low percentage of cases (estimated <1
percent) and third opinions are never sought. Our human resource
department is very small, and in order to seek second opinions, a
significant amount of staff time and resources are required to find the
appropriate doctor to conduct a second opinion. The City of Gillette,
Wyoming does not have a doctor that it uses regularly. Doctors in our
area, like in many other areas, are very busy and often times the only
specialist available to the City of Gillette is the healthcare provider
that the employee has already seen. Also, in a small community such as
ours, doctors know each other well, so in order to obtain an objective
second opinion, I must look outside the city to the nearest community,
which is 125 miles away. Second opinions, if sought, are costly, and
only add to the normal costs for my organization because of the
expenses associated with the employee's travel to and from this
location.
Re-certification is typically the most frequent request my
organization makes. Requesting clarification on what is written on
certifications of health from the primary healthcare professional
occurs in perhaps one out of ten cases. Re-certification is usually
associated with our policy that employees provide documentation if
there is a change in condition or the employee plans to return to work.
I do not believe that second and third opinions are adequate tools
for identifying employee misuse of leave. Most often, allegations of
employee abuse arise after the condition has been certified by a
healthcare provider. After FMLA ``job protected'' leave has been
granted, it is very difficult for the employer and the human resource
department to question the manner in which the employee is using the
leave.
Normally, indications of inappropriate use of FMLA leave come from
other employees who see and/or communicate with the employees taking
FMLA leave. This often occurs if employees come into contact with each
other outside the workplace. Many times it comes directly from the
employee when they discuss how they utilized their leave after they
have returned to work. It is still difficult to verify employee misuse
of FMLA leave, especially when the organization learns about misuse
after the fact and employers have very few avenues to pursue if abuse
is discovered after-the-fact. In addition, due to Heath Insurance
Portability and Accountability Act of 1996 privacy concerns, the
willingness of the healthcare provider to share any information with an
employer is very limited, even with the employee's permission.
I have used various procedures to investigate potential abuse
including interviewing other employees regarding their concern that an
employee is abusing FMLA leave, requesting an employee to provide re-
certification, and counseling an employee on FMLA leave.
Unfortunately, I have found that employees who have documented
performance problems and face disciplinary action are those who most
frequently misuse FMLA leave. FMLA becomes the formula to protect the
employee's job. Employees seek this avenue because employers are
fearful of taking any adverse employment action against employees while
they are on FMLA leave. Other employees recognize those who take
advantage of the system, creating morale issues in the workplace. As a
human resource professional acting on behalf of my organization, I
often feel my hands are tied and no avenue, within the regulations
exists to adequately resolve these types of issues.
Question 5. Do you agree that more employer and employee education
is needed to guarantee successful implementation of the FMLA? Do you
believe that you have a solid understanding of your rights and
responsibilities under the FMLA as an employer? How do you educate your
workforce about the FMLA? Do your employees know their rights and
responsibilities under the FMLA?
Answer 5. Training opportunities are always beneficial, but
training alone does not resolve or curtail employer and employee
confusions or employee misuse of FMLA leave. The only solution is for
the U.S. DOL to issue narrow regulatory corrections that allow
employers to manage absenteeism.
As a human resource professional with more than 9 years of
experience, I have a strong understanding of employer responsibilities
and the rights entitled to employees under FMLA. The organizations that
I have served during my career have made it a priority to ensure that I
had sufficient training and education regarding the FMLA and its
regulations. However, the regulations themselves do not provide clear
guidance and are in need of clarification.
My organization provides employees with written materials as well
as notifications of rights when requests for FMLA leave are made.
Supervisors receive periodic training on their obligations under the
law. Our policy is that when an employee has been out for 3 days,
written notification is sent to inform them of their potential
eligibility for this leave. We again include notification of the
employee's FMLA rights and responsibilities. We also have a system in
place to keep employees informed as to the status of their leave. We
actively encourage employees to contact HR when they have questions
regarding FMLA leave. Many employees who have never used FMLA leave
often seek assistance from our department.
American Organization of Nurse Executives,
Washington, D.C. 2004,
June 23, 2005.
Hon. Michael B. Enzi,
Chairman,
Committee on Health, Education, Labor, and Pension,
U.S. Senate,
Washington, D.C. 20510.
Hon. Edward M. Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: On behalf of the over 4,800 members of the
American Organization of Nurse Executives (AONE) we welcome the
opportunity to participate in the June 23rd Roundtable entitled: ``The
Family Medical Leave Act: A Dozen Years of Experience.'' Our
representative for this important discussion is Laurie J. Dohnalek, RN,
MBA, CNA. Ms. Dohnalek is an experienced Nurse Manager for the Blood
and Marrow Transplant, Inpatient Oncology, Apheresis and Dialysis
Services at Georgetown University Medical Center, Washington, DC. In
her 12 years as a Nurse Manager, Ms. Dohnalek has been responsible for
the implementation of the Family Medical Leave Act and has first hand
knowledge of the difficulties of trying to balance the health and
family needs of her employees against the patient care demands of a
highly specialized critical care unit.
The majority of AONE's membership of registered professional nurses
are leaders in the day-to-day management and delivery of direct patient
care services. In this position, we are able to see first hand both the
benefits and difficulties of providing Family Medical Leave to
employees in a healthcare environment that is faced with critical
shortages of registered nurses and allied health professionals.
Thank you for the opportunity to contribute to this valuable
discussion. We look forward to assisting you as you attempt to improve
this legislation for those who administer it and the millions who
benefit from it. Should you have additional questions, please contact
Jo Ann Webb RN, MHA, Senior Director of Federal Relations and Policy at
jwebb@aha.org or 202-626-2321.
Sincerely,
Marilyn A. Bowcutt, RN, MSN,
AONE, President.
Pamela A. Thompson, MS, RN, FAAN,
Chief Executive Officer.
[Whereupon, at 11:55 a.m., the committee was adjourned.]